Texas Attorney General Opinion: GA-0593 Page: 5 of 7
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The Honorable Jesusa Sanchez-Vera - Page 5
10(a). If a court initially orders a defendant to participate in a community service program but later
determines that the defendant qualifies for one of the exceptions to mandatory probation, such as
incapacity, hardship, or other "good cause," a court may exercise its discretion to eliminate a
community service requirement from the conditions of probation. See id. 10(a), 16(a). If a court
originally ordered a defendant to perform hours of community service in excess of the minimum
required by statute, a court may later exercise its discretion to modify conditions of probation and
relieve the defendant of the obligation to perform hours above the minimum. See id 10(a), 16(b).
And under appropriate circumstances, a court may reduce the period of probation or terminate it
altogether. See id. 20(a). But that statute does not authorize a court to selectively eliminate the
mandatory minimum hours of community service specified by statute.
For a defendant placed on probation on or after September 1, 2007, however, a court has
discretion generally to decide whether to impose community service in the initial conditions of
probation. Id. 16(a). For defendants subject to the current version of section 16(a), a court
generally has discretion to modify the conditions of probation to eliminate a community service
requirement. See id. 11 (a), 16(a). Thus, whether a court's authority to modify the conditions of
probation under section 11(a) would allow a court to eliminate a community service requirement
depends on the particular facts and circumstances and the version of section 16(a) applicable to the
defendant.
B. Authority to Impose Payment
Next, we consider whether a court may modify the conditions of probation to include a
requirement that the defendant make a monetary payment. The court's authority to modify
conditions under section 11(a) is subject to section 11(b), which limits the kinds of monetary
payment requirements that a court may include in the conditions of probation. See id. 1 1(a)-(b);
see also Busby, 984 S.W.2d at 629-30 (holding that "[s]ubsection 11(b) acts as a limitation on the
conditions that are authorized by subsection 11 (a)"); Martin v. State, 874 S.W.2d 674, 677 (Tex.
Crim. App. 1994) (observing that section 11 (a) contains a broad grant of authority but section 11 (b)
"imposes limitations on the types of payments that can be ordered as a condition of probation").
Although you have not specified the nature of the "fee payment" you envision, under section 11 (b)
a court may not order payment as a condition of probation unless it constitutes a fine, court costs,
restitution to the victim, a condition related personally to the rehabilitation of the defendant, or a
condition otherwise expressly authorized by law. See Request Letter, supra note 1, at 1; see also
TEX. CODE CRIM. PROC. ANN. art. 42.12, 11 (b) (Vernon Supp. 2007). Thus, we will make some
general observations about the kinds of payments that section 11 (b) allows.
Section 22 specifically addresses a court's authority to modify conditions of probation by
increasing the fine. After a hearing under section 21, a court may impose as an additional condition
of probation an increase in the defendant's fine, up to a total fine that does not exceed the maximum
fine for the offense for which the defendant was sentenced. See TEX. CODE CRIM. PROC. ANN. art.(GA-0593)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0593, text, January 17, 2008; (https://texashistory.unt.edu/ark:/67531/metapth275489/m1/5/: accessed April 30, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.