Opinion issued June 25, 2012
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-11-00819-CR
____________
WALTER BUSBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-055977
MEMORANDUM OPINION
Appellant, Walter Busby, appeals the trial court’s denial of his pretrial
application for a writ of habeas corpus. See TEX. R. APP. P. 31.
We affirm.
Background
Appellant is charged with the offense of driving while intoxicated (DWI).
See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011). The State alleges that
appellant has been twice previously convicted of DWI, which elevates the instant
offense to a third-degree felony. See id. § 49.09(b). Appellant has been released
on $15,000 bond and awaits trial.
The trial court required, as conditions on his bond, that appellant report to the
Fort Bend County Community Supervision and Corrections Department, Pre Trial
Services Division, (“Department”); that he submit to random alcohol and drug
testing; that he install a breath analysis mechanism on his vehicle; and that he pay
fees to the Department for monitoring his compliance with the conditions.
On August 5, 2011, the Department moved the trial court to modify the
conditions of appellant’s bond to include a “Supervision/Administrative Fee” of
$ 40.00 per month as a bond condition, payable each month until appellant’s case is
disposed.
2
At the hearing on the motion, appellant argued that the Department was
“attempting to extract a fee” that it lacked statutory authority to impose. As
discussed in more detail below, the State responded that Texas Government Code
sections 76.011 and 76.0151 authorize the Department to charge a fee for bond
supervision. The trial court concluded that the statutes are broad enough to
authorize the fee. The trial court further concluded that, because it had imposed
conditions on appellant’s bond and had asked the Department to monitor appellant
for compliance with those conditions, the court would have to revoke the bond for
the safety of the community if the Department is without the resources to monitor
appellant’s compliance. The trial court granted the motion and ordered that the fee
be a condition on appellant’s bond, beginning on the date of the order and continuing
each month until appellant’s case is disposed. Appellant paid the fee.
Appellant then filed an application for a writ of habeas corpus, challenging
the trial court’s authority to impose the pretrial supervision fee as a condition on his
bond. Appellant asserted that he is confined by the imposition of the fee, which is
an “unlawful and unauthorized” payment requirement to the Department, and that
the fee constitutes a punishment that violates double jeopardy protections.
1
TEX. GOV’T CODE ANN. § 76.011, .015 (West Supp. 2011).
3
At the habeas hearing, appellant conceded that Government Code sections
76.011 and 76.015, as amended effective September 1, 2011, now authorize the
Department to assess “some fees for” its pretrial services. Appellant complained
(1) that any supervision fees charged by the Department are nevertheless predicated
on a showing of actual costs, which the Department has not done, and (2) the $40.00
fee charged to appellant on August 5, 2011, which was prior to the statutory
amendments, remains unauthorized. The trial court denied relief.
Standard of Review
A pretrial writ of habeas corpus is appropriate only in limited circumstances.
Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). The writ may be
used to challenge the manner of pretrial restraint (i.e., the conditions of bail). Id.
A trial court’s denial of pretrial habeas corpus relief is immediately
appealable. Id. Ordinarily, we review a trial court’s denial of habeas corpus relief
under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 326
(Tex. Crim. App. 2006); Ex parte Necessary, 333 S.W.3d 782, 787 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). We view the evidence in the light most
favorable to the trial court’s ruling. Wheeler, 203 S.W.3d at 324; Necessary, 333
S.W.3d at 787. We afford almost complete deference to the trial court’s
determination of historical facts supported by the record, especially when those
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factual findings rely upon an evaluation of credibility and demeanor. See Necessary,
333 S.W.3d at 787. Likewise, we afford the same deference to the trial court’s
rulings on application-of-law-to-fact questions, if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. Id. However, if the
resolution turns on an application of legal standards, we review the determination de
novo. Id.
Here, appellant asserts that the trial court misapplied the law. Hence, we
review the trial court’s denial of pretrial habeas relief de novo. See id.
Applicable Law
Prior to September 1, 2011, Texas Government Code section 76.011
authorized a community supervision and corrections department to operate a
program for the supervision and rehabilitation of persons in pretrial intervention
programs.2
As amended, effective September 1, 2011, language was added to
Government Code section 76.011 to expressly provide that a community supervision
and corrections department may also operate programs for the supervision of
persons released on pretrial bail under Code of Criminal Procedure Chapter 17, as
2
See Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 7.11, 1995 Tex. Gen. Laws 580,
583, amended by Act of May 19, 2011, 82nd Leg., R.S., ch. 419, § 1, 2011 Tex.
Gen. Laws 1092, 1092–93 (current version at TEX. GOV’T. CODE ANN. art. 76.011
(West Supp. 2011)).
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here. TEX. GOV’T CODE ANN. § 76.011(a)(2) (West Supp. 2011); see TEX. GOV’T
CODE ANN. § 76.002 (West Supp. 2011) (establishing “departments”); see also TEX.
CODE CRIM. PROC. ANN. Ch. 17 (West 2005 & Supp. 2011) (governing bail,
including pretrial bail).
Both before and after the amendments, Government Code Section 76.015 has
allowed a community supervision and corrections department to assess an
administrative fee, as follows:
(a) A department may collect money from an individual as ordered by a
court served by the department regardless of whether the individual is
under the department’s supervision.
(b) A department that collects money under this section shall promptly
transfer the money collected to the appropriate county or state officer.
(c) A department may assess a reasonable administrative fee of not less
than $25 and not more than $60 3 per month on an individual who
participates in a program operated by the department or receives
services from the department and who is not paying a fee under Section
19, Article 42.12, Code of Criminal Procedure [governing community
supervision].
TEX. GOV’T CODE ANN. § 76.015 (West Supp. 2011).
Analysis
The trial court required, as conditions on appellant’s pretrial bond, that he
report to the Department, that he submit to random alcohol and drug testing, that he
install a breath analysis mechanism on his vehicle, and that he be monitored for
compliance by the Department. Section 76.015(c) expressly authorizes the
3
The prior version limited the fee to $40.00.
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Department to impose an administrative fee between $25.00 and $60.00 per month
on an individual, as here, who receives services from the Department. See id. The
record shows that the Department sought to assess against appellant a
“Supervision/Administrative Fee” of $ 40.00 per month and that it moved the trial
court to make payment of the fee a condition of appellant’s bond. The trial court
granted the Department’s motion and made the payment of the fee a condition on
appellant’s bond. “It is well established that courts have the inherent power to
place restrictive conditions on the granting of bail.” Ex parte Anunobi, 278 S.W.3d
425, 427 (Tex. App.—San Antonio 2008, no pet.); see Ex parte Anderer, 61 S.W.3d
398, 401–02 (Tex. Crim. App. 2001).
At the habeas hearing, appellant conceded that section 76.015, as amended,
authorizes the Department to impose a fee. Appellant complained, however, that
the amount of the fee, $40.00, was arbitrarily set and that, pursuant to Code of
Criminal Procedure article 102.012, the Department was required to present
evidence of “actual costs.”
Article 102.012 governs fees for participation in pretrial intervention
programs. TEX. CODE CRIM. PROC. ANN. art. 102.012 (West Supp. 2011).
Appellant does not assert, and nothing in the record before us suggests, that he is
involved in a pretrial intervention program. The Pretrial Intervention Interview
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Report in the clerk’s record reflects that appellant was “not approved.” The
reporter’s record of the hearing on the motion to modify the conditions of
appellant’s bond, which was admitted at the habeas hearing, reflects that appellant’s
counsel explained to the trial court that a pretrial intervention program involves a
written agreement between a defendant and a prosecutor, pursuant to which the
defendant agrees to perform conditions imposed by the prosecutor in exchange for
the prosecutor agreeing to dismiss the case. Counsel asserted that appellant is not
in a pretrial intervention program. Hence, article 102.012, which governs pretrial
intervention programs, does not apply. Further, the “actual costs” language was
eliminated from the statute in the 2005 amendment.4
Appellant has not demonstrated that he is entitled to habeas relief on this
point.
Next, appellant complains that the Department had no statutory authority to
assess the fee against him on August 5, 2011 because the prior version of section
76.011 did not provide for pretrial supervision programs.
Prior to being amended effective September 1, 2011, Government Code
section 76.011(a) provided that “[t]he department may operate programs for the
4
See Act of June 18, 1990, 71st Leg., 6th C.S., ch. 25, § 20, 1995 Tex. Gen. Laws
108, 126, amended by Act of May 5, 2005, 79th Leg., R.S., ch. 91, § 2, 2005 Tex.
Gen. Laws 150, 150 (current version at TEX. CODE CRIM. PROC. ANN. art. 102.012
(West Supp. 2011)).
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supervision and rehabilitation of persons in pretrial intervention programs.”
(emphasis added). At the hearing on the motion, the transcript of which was
admitted into evidence at the habeas hearing, appellant argued that the statute
authorized the Department to operate pretrial intervention programs, but it did not
authorize the Department to operate programs to monitor defendants on pretrial
supervision, as is appellant. Thus, argued appellant, there was no authorization for
the Department to charge the fee provided under section 76.015. See TEX. GOV’T
CODE ANN. § 76.015(c).
We do not reach the issue of the August 5, 2011 fee. To be entitled to habeas
relief, an applicant must be illegally restrained. Headrick v. State, 988 S.W.2d 226,
228 (Tex. Crim. App. 1999). Habeas corpus relief is not appropriate when a
resolution of the question presented, even if resolved in favor of the applicant, would
not result in his immediate release. Id. Here, even if we were to resolve in
appellant’s favor the question of whether the fee charged and paid August 5, 2011
was statutorily authorized, such outcome would not result in his release.
Finally, by his petition for habeas relief, appellant asserted that the trial
court’s action of making the payment of the administrative fee a condition of his
bond violated protections against double jeopardy because appellant was being
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punished before being tried for the offense. Appellant did not develop this
argument in his application or at any hearing in the record before us.
Conclusion
We cannot conclude that the trial court erred by denying appellant’s
application for a pretrial writ of habeas corpus. Accordingly, we affirm the trial
court’s order.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Do not publish. See TEX. R. APP. P. 47.2(b).
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