I am a probation officer/supervisor for Hunt County CSCD. I found this site about a year ago and am glad I did, it's very informative as well as interesting and I periodically go to it, especially to read the posts. You all do a great job. I do have a question and hope it is not inappropriate here (this is the first time I have posted anything).

Our two District Courts seem to be under some pressure to allow appointed defense attorneys more freedom to hire private investigators at their (the defense attorney's)will. The District Judges (we have two) are contemplating adding the cost for this to an offender's terms of probation. Of course they already require the offender to reimburse for court appointed attorneys, court costs, etc. However, there is some question as to whether they can legally do this for investigator fees. It seems clear under 42.12 Sec. 11 (11) that reimbursement for appointed counsel is okay, fines and court costs (8), and other items. But (23)(b) of that section notes "may not order.... payments �..except for fines, court costs, restitution to the victim, and other conditions related personally to the rehabilitation���.or authorized by law". Does this wording prohibit, by exclusion, the Court's ability to require an offender placed on probation to reimburse the County for costs for private investigators?

Also, do any of you know of any legal requirement mandating that a probationer's court appointed attorney fees and court costs be collected during first six months of the term of probation as opposed to being spread out over the full term of probation? We currently load those items to the first 6 months of the probation term (which sometimes makes for unusually high monthly payments during that time) while fine, probation fees, etc., are spread out over the full term. The Judges and our D.A. want to spread the attorney fees and court costs over the entire term as well. Any advice or input on how your Counties do this will be appreciated.

Thank you for your input-again, truly a great site here.

John Washburn

For most conditions, a judge has great discretion. For money, however, there must be express authority in a statute before a judge may order a defendant to pay money as a condition.

See, for example, Busby v. State, 984 S.W.2d 627 (Tex. Crim. App. 1998) (prohibiting order requiring defendant to pay cost of special prosecutor); Atty. Gen. Op. 1993, No. DM-245 (prohibiting order requiring defendant to repay cost of interpreter because no statute expressly authorizes such an order).

By the way, these cases and many others like it are summarized in Pleas, Probation & Punishment, published by TDCAA.

There is no reason you can't spread the payments out over the length of probation. We almost always end up spreading them out at least for a couple of years. I imagine the reason that you try to get your money over a short timeframe is because the county has to pay the defense attorney within a short period of time.

I'm not sure whether or not you can assess the investigator expenses. Looking at the general wording in 42.12 �11(a), it says that the judge may impose reasonable conditions designed to "restore the community". It could be argued that reimbursing the county for defense investigative fees restores the community. I don't know what, if anything, the caselaw says about this.

We have recently gotten a lot more investigator requests from our appointed attorneys. If we can get reimbursement for the county, I'm sure our judges would like to do so.

Art. 26.05 (g), (h), CCP specifically provides the court may order reimbursement of investigator and expert witness fees by the defendant as court costs. These orders can presumably be incorporated as part of the conditions of probation (since payment of court costs is a permissable condition) or they can be separately enforced through the court's contempt power. Ex parte Gonzales, 945 S.W.2d 830. With the skyrocketing costs of providing these types of services to indigents it will become increasingly important for the courts to try to recoup them whenever they can.

Martin, thanks for the cite. I will be adding it to the chart I have for allowable costs to a defendant in Pleas, Probation & Punishment.