So in court yesterday, a defense lawyer claims his client will accept my pen time offer, but will object to the lab fee of $140 to DPS being put in the judgment. I told him to show me a case that prohibits the trial court from ordering the lab fee as restitution. Well here it is:

Aguilar v. State, 2007 Tex App. Lexis 1373

Specifically, the COA in Austin held:

" ...trial court can also order a defendant to pay lab fees, but only as a condition of community supervision. Id. art. 42.12, § 11(a)(19)(West 2006)(providing that a court can order a defendant, as a condition of community supervision, to "[r]eimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense"). When a trial court revokes a defendant's community supervision, "[t]he judge shall enter the amount of restitution or reparation owed by the defendant on the date of revocation in the judgment in the case." Id. § 23(a).

Here, we must determine whether the trial court had authority to order Aguilar to reimburse the Department of Public Safety for lab fees when it revoked his probation. The State argues that the lab fees that Aguilar was ordered to pay constitute "restitution" under subsection 23(a) and that the trial court could validly order their payment upon revocation. However, a trial court may only order a defendant to pay restitution to a victim. Id. art. 42.037(a)(West 2006). The expenses incurred by the Department of Public Safety in testing the methamphetamine found in Aguilar's possession were not sustained as a result of being the victim of a crime. Uresti v. State, 98 S.W.3d 321, 338 (Tex. App.--Houston [1st Dist.] 2003, no pet.). The Department of Public Safety was not the direct recipient of an injury caused by Aguilar's crime. Id. Therefore, the trial court lacked authority to order Aguilar to pay lab fees as restitution upon revoking his probation. 1 We have not found any other authority that would allow a trial court to order a defendant to pay lab fees upon revoking his probation, and the State has not pointed us to any."

So it looks like lab fees are out except as a condition of probation ... any thoughts?

When writing The Perfect Plea, I looked at how the restitution laws were directed at creating authority for imposing the requirement (1) as a condition of probation or (2) as part of the judgment in a direct sentence.

I noticed that there were differences between the two sets of laws. There is not always authority for both. I ended up creating a table for the list (see pate 88, The Perfect Plea), as it applied largely to financial payments as a condition of supervision.

There needs to be a general statute that authorizes carrying over such a condition of payment into the final judgment when not completed before adjudication/revocation.