I have a felony Hindering a Secured Creditor case. To secure a large amount of upfront restitution for the elderly victim (she's in her 80's), I am considering a misdemeanor disposition. I have looked at the statute on restitution liens in the Code of Criminal Procedure (42.22) and it appears to grant a restitution lien to victims of crime in all cases, including misdemeanors. It does limit restitution liens sought by the State for fines and costs to felonies (42.22 Sec. 2(b)(1)). However, there is a note at the end of the statute in the TDCAA "Criminal Laws of Texas" book that simply says "Note that the language of Art. 42.22 does not allow restitution liens on misdemeanors -- only felonies." There is no cite. Am I missing something? I think the statute says (42.22 Sec. 2(a)) says victims can get a restitution lien in all criminal cases, not just misdemeanors. Anyone disagree? Set me straight if you know or believe otherwise. Thanks.

I agree with your interpretation. Art. 42.22(a) makes no mention of any limitation to any type of criminal activity when the victim is a private individual. Art. 42.22(b) is separate and distinct describing what the state gets under a restitution lien. Note that only 42.22(b)(1) has a felony limitation. Art. 42.22(b)(2)(A) deals with collecting reimbursement owed by a defendant who was sentenced to serve county jail time for a misdemeanor. The annotation you refer is misleading.

On the face of it, it looks as if a "(b)" --as in 42.22(b)-- was consumed during the publication process. I agree that subsection b does not limit subsection a. The use of the word "also" in b confirms that. I'll check into this.

[This message was edited by John A. Stride on 08-17-10 at .]

How does the definition of "victim" provided impact this? 42.22(4) defines "victim" as it is defined in 56.01. 56.01(3) defines "victim" as someone who has suffered injury generally from felonies or assaultive offenses.

So doesn't that pretty much cut out misdemeanors? what am I missing here?

It looks like you may well be right, Rob. If that is the case, however, it appears that restitution liens are limited not just to felonies, but to only "a person who is the victim of the offense sexual assault, kidnapping, aggravated robbery, trafficking of persons, or injury to a child, elderly or disabled person, or who has suffered personal injury or death as a result of the criminal conduct of another." That seems to limit the utility of the restitution lien pretty significantly. It certainly eliminates their use in helping to protect victims of felony property crimes. My victim is out $100,000 and it does not appear that 42.22 will be any help in our efforts to put the victim in the best possible position to recover her losses. Perhaps the legislature had its reasons for so limiting the application of restitution liens.

On the positive side, 42.037 CCP seems to help some. It provides that an order of judgment of restitution to a victim is enforceable in the same manner as a civil judgment. That's cool.

By the way, it also appears that restitution liens can be used in misdemeanors. The definition of "victim" in 56.01 includes persons who have suffered personal injury as the result of the criminal conduct of another. I can think of several misdemeanors that would qualify. Simple assault, for instance. Or, a DWI in which a victim was injured but not to the extent that we can call it "serious bodily injury."

We will do a little legislative research and see if anything comes up the the history that expands this, but it does look limited. General question -- can a victim in a non-injury case get a lien under already-existing civil law? This provision empowers the prosecutor to do it for the benefit of the victim; perhaps the limitation is there as a way to protect prosecutor resources....imagine if the prosecutor was expected to pursue this civil lien remedy in every theft case filed...