IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1711-13
MELISSA ANN MERCER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
BEE COUNTY
J OHNSON, J., filed a concurring opinion.
CONCURRING OPINION
Section 15 of Article 42.12 of the Code of Criminal Procedure governs community
supervision in state-jail felony cases, such as appellant’s. The statute states that a judge may impose
“any condition” of community supervision that the judge could impose on a defendant placed on
supervision “for an offense other than a state jail felony.” A court is authorized under Article
42.038(b) of the Code to require that a defendant placed on deferred adjudication for a misdemeanor
serve a period of confinement in county jail as a condition of community supervision and reimburse
the county for that confinement.
When considering the interplay between those two statutes, it becomes clear that the language
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in those statutes is not clear and unambiguous. Therefore, it is appropriate to look at the legislative
history of those statutes. Looking at that legislative history, I observe that Article 42.038 was
specifically focused on defendants convicted of misdemeanor offenses and reimbursement to the
counties for the costs of misdemeanants’ confinements in county jails.
The Senate Research Center’s Bill Analysis determined that Article 42.038 authorized a court
to charge an incarcerated misdemeanant a cost for confinement in a county jail. The Legislative
Budget Board’s (LBB) fiscal note of the bill–S.B. 1276, which became Article 42.038–discussed the
provisions for allowing a county to order a defendant “convicted of a misdemeanor to reimburse the
county for costs of post-judgment confinement,” which could result in additional revenues to
counties. It specifically noted that four named counties had provided fiscal-impact statements for
the bill and that, in those statements, the counties estimated the effect of the bill on annual net county
revenues. The LBB fiscal note also pointed out that “[n]o fiscal implication to the State is
anticipated.” I likewise find nothing in the legislative history of Article 42.12, section 15, to indicate
any contemplation of ordering state-jail-felony defendants to pay reimbursement of costs for
confinement as a condition of community supervision, and the language of Article 42.038(b)–a
defendant placed on deferred adjudication for a misdemeanor–excludes defendants who are placed
on deferred adjudication for a felony of any degree.
Clearly, the legislature was concerned with reimbursement for the counties’ costs of
confining of misdemeanants who were ordered to serve jail time in county jails as a condition of
community supervision. State-jail-felony defendants are confined in state, rather than county,
facilities. Thus the confinement of such state-jail-felony defendants is not affected by Article
42.038.
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I join the opinion of the Court.
Filed: January 14, 2015
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