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Texas Courts Examine Proof of Ability to Pay Probation Fees before Revocation

by Matt Clarke

In a November 14, 2012 opinion, the Texas Court of Criminal Appeals held prosecutors are not required to prove that a probationer was able to pay fees and fines when his probation was revoked due to nonpayment. The Court of Appeals reversed the probation revocation on remand, and the Court of Criminal Appeals granted discretionary review of that ruling in June 2013.

Raimond Kevon Gipson, who was serving a term of probation, failed to pay his fees and fines. He was required to pay a $500 fine, supervision fees, court costs, a pre-sentence investigation (PSI) fee, a $50 Crime Stoppers fee and $1,000 in attorney fees. [See article in this issue of PLN regarding Texas criminal court fees].

The state filed for revocation due to the nonpayment. Gipson pleaded “true” to failure to pay fees but contested other reasons for the revocation. At no time did the state claim he was able to pay the fees but willfully failed to do so; Gipson also did not raise the issue of inability to pay. The trial court revoked his probation and sentenced him to eight years in prison.

On appeal, Gipson claimed that the state’s failure-to-pay statute, art. 42.12 § 21(c), Texas Code of Criminal Procedure, required the state to show that he was able to pay but willfully did not. He also claimed that Bearden v. Georgia, 461 U.S. 660 (1983) established a constitutional requirement that the state prove ability to pay before revoking his probation. The state maintained that by pleading true to the allegation, Gipson had waived any such claims.

Without addressing the state’s procedural arguments the Court of Appeals reversed the trial court’s order, holding that the failure-to-pay statute required the state to first prove ability to pay before revoking probation. The state petitioned the Texas Court of Criminal Appeals for discretionary review, which was granted.

The Court of Criminal Appeals held that the lower appellate court must first determine whether the alleged error had been preserved for review or waived by Gipson when he pleaded true to failure to pay fees. Because a plea of true normally waives any challenge to sufficiency of evidence of a probation revocation on appeal, this analysis must be performed within the framework of Marlin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), in which the Court of Criminal Appeals held that “certain requirements and prohibitions are absolute and ... certain rights must be implemented unless expressly waived.”

Because it disagreed with the constitutional and statutory analysis of the appellate court, the Court of Criminal Appeals provided its own analysis.

The Court held that Bearden did not impose a duty on prosecutors to prove ability to pay; rather, it imposed a duty on the trial court to make an inquiry into ability to pay. The Court further held that the failure-to-pay statute did not cover two of the fees Gipson did not pay – the fees for Crime Stoppers and PSI. Therefore, if the Court of Appeals determines on remand that pleading true to failure to pay did not waive that issue for appellate review, it must decide whether Texas common law or the U.S. Constitution requires the prosecution to prove inability to pay prior to a probation revocation.

The judgment of the Court of Appeals was reversed and the case remanded to that court for further proceedings. See: Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012).

Following remand, on March 13, 2013 the Court of Appeals again reversed the trial court’s revocation of Gipson’s probation. The appellate court found that “Generally, a defendant cannot challenge a revocation finding to which he pleaded ‘true’”; however, “[i]n this case, the record is devoid of evidence showing that Gipson’s failure to pay attorney’s fees, community supervision fees, or court costs, including PSI and Crime Stoppers fees, was willful.”

Therefore, the Court of Appeals held the trial court had abused its discretion by revoking Gipson’s probation, which affected his substantial rights by subjecting him “to a prison sentence rather than continued community supervision.” With respect to Gipson’s argument that the trial court violated his due process rights, the appellate court found he had failed to preserve that issue for review because he did not raise it before the trial court. See: Gipson v. State, 395 S.W.3d 910 (Tex. App. 2013).

On June 26, 2013, the Texas Court of Criminal Appeals granted the state’s petition for discretionary review, and a decision remains pending.

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