dissenting.
Despite Justice Brookshire’s assertion that “[tjhis litigation pertains significantly to the expanding concept of victims’ rights” and despite his attempt to characterize this case as involving reparation and/or rehabilitation, it is a fairly simple case involving fairly simple issues.
RESTITUTION TO AN INSURANCE CARRIER
The trial judge in condition (h) of the probation order required, among other things, “Pay restitution of $27,926.14.” This condition was clarified by the closing paragraph of the court’s Judgment and Sentence: “Restitution to date: $27,926.14 payable as follows: $2,925.80 payable to Clayton O’Neil, ... and $25,000.34 payable to Northwestern National Life,1....” The *274issue raised on appeal is the propriety of the trial court awarding restitution to the insurance carrier. That was the same issue brought before the court in a “Brief of Law Pertaining to Court’s Order of Restitution” filed October 23, 1991. That brief, noting it was filed in response to the court’s order of August 16, 1991, posed the question: “Can the Court order restitution paid to the victim’s insurance carrier for money expended for medical treatment by said carrier.” 2
Three other courts of appeals have faced the issue. Jones v. State, 713 S.W.2d 796 (Tex.App.—Tyler 1986, no pet.) held that Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App.1980) and Tex.Code CRiM.PROC. Ann. art. 42.12, § 6(a)(8) (Vernon Supp. 1986), the probationer “make restitution or reparation in any sum that the court shall determine”, allowed the order of payment of restitution to an insurance company which paid a victim’s medical bill, citing Flores v. State, 513 S.W.2d 66 (Tex.Crim.App.1974) as implicitly approving the order. Flores involved the question of whether a judge could impose restitution if he had not listed that as one of the options in the jury charge. The court affirmed the trial court. Since the complained of restitution involved an insurance company, the Jones court says this implicitly approves restitution to an insurance company. Its reasoning is flawed. The court of criminal appeals rejected Flores’ non-named victim argument because of a partial statement of facts, thus Jones is of questionable authority.
Harrison v. State, 713 S.W.2d 760 (Tex.App.—Houston [14th Dist.] 1986, pet. ref’d) is somewhat on point. It is a condition of parole case which held that the insurance company was a victim. An important distinction between the instant case and both Jones and Harrison3 is these cases were decided before section 11(b) was added to Tex.Code CRIM.PROC.Ann. art. 42.12.
Martin v. State, 806 S.W.2d 237 (Tex.App.—Austin 1991, pet. ref’d) did address this and held that article 42.12 section 11(a)(8) allows restitution in any sum the court directs (this is the old section 6(a)(8) language) and that the section 11(b) language does not limit it to only those victims named in the indictment. However, the Austin court, in a footnote, makes it plain it does not necessarily agree with the Harrison conclusion that an insurance company is a victim. Thus, contrary to the position of the concurrence, Martin is not “completely on point and dispositive of the issue.”
In fact, the question of whether section 11(b) limits restitution to only victims named in the indictment is still open.4 Gordon v. State, 707 S.W.2d 626 (Tex.Crim.App.1986) held a deputy sheriff could not be required to pay funeral expenses as restitution when the jury had found him guilty of only pulling the victim’s hair, the third degree felony, (this was a civil rights violation case) and not guilty of the victim’s murder, a first degree felony. 707 S.W.2d at 629, Judge Clinton mentions Bradley v. State, 478 S.W.2d 527, 531 (Tex.Crim.App.1972) where Judge Roberts’ concurring opinion argued that a defendant should not be required to pay restitution to someone not a victim of the offense. Judge Clinton also cites Bruni v. State, 669 S.W.2d 829 (Tex.App.—Austin 1984, no pet.). He says the rationale of both Bradley and Bruni is that when the defendant’s criminal culpability for a third party’s losses has not been adjudicated it would be unfair to order the defendant to pay for these losses. Bruni was a parole restitution case. The court ordered restitution of $43,173 to John and Betty Ross, husband and wife, and $4,000 to Anne Neimann. The state conceded *275Anne Neimann was not a victim. The appeals court agreed. They affirmed the award to the jointly named husband and wife since the record showed the amount appropriated by the defendant was jointly owned by the husband and wife in spite of the fact the husband was the only owner named in the indictment. Garcia v. State, 773 S.W.2d 694 (Tex.App.—Corpus Christi 1989, no pet.) is a parole restitution case. This case followed Bruni and Gordon and disallowed the payment of restitution to victims of offenses for which the defendant had not been adjudicated guilty.
Whether or not section 11(b) limits payment of restitution only to named victims, it nonetheless limits payment to victims. The insurance carrier was not, in my view, a victim. It was either fulfilling its contractual obligation to the victim5 or it was a volunteer.
Contrary to Justice Brookshire’s second holding at the conclusion of his opinion, there is no evidence on which to base such a holding. Although Mr. O’Neil testified he had insurance through his employer and the insurance carrier paid a portion of his medical expenses, no insurance policy was admitted into evidence. Whether Northwestern National Life Insurance Company “stands in the shoes of the victim ... is subrogated and substituted in the place of the victim with reference to the claims, demands or rights of the victim, ... or succeeds to the rights of the victim in relation to the medical claims it paid” is nothing more than gross supposition without any basis in fact.
THE EVIDENTIARY THRESHOLD FOR MEDICAL RESTITUTION
Justice Brookshire dismisses appellant’s second point of error almost summarily. By noting this is a criminal procedure and citing Cartwright, I assume he is indicating the only requirement is there must be some factual basis for the amount set and the amount set must be “just”. Cartwright, 605 S.W.2d at 289. Chief Justice Walker holds that since appellant had no objections to the cancelled checks no error was preserved.
Neither of these resolutions reach the question presented. Appellant’s position, at trial and here, is there must be the same threshold evidentiary standard concerning medical restitution in a criminal case as there is in recovering medical expenses in a civil proceeding, i.e. the medical treatment must have been necessary and the expenses incurred must have been reasonable.
Due process is the underpinning for the requirements that restitution amounts have a factual basis and be reasonable and just. Cartwright, 605 S.W.2d at 289; Martin, 806 S.W.2d at 237. To require a factual basis, but have no evidentiary standard makes due process meaningless.6 Civil law makes no distinction between negligent and intentional tortfeasors inasfar as liability for medical expenses. The rationale for the civil evidentiary standard is simple; the tortfeasor should be responsible for reasonable and necessary medical expenses proximately caused by his acts, but should not be responsible for other items.7 We should adopt the same standard for setting medical expense restitution.
SUMMARY
I would:
(1) hold under article 42.12 section 11(b) a defendant may only be required to make restitution to a victim;
(2) hold the insurance carrier is not a victim within the meaning of article 42.12 section 11(b), Texas Code of Criminal Procedure;
*276(3) hold in determining what amount of medical restitution is just, the eviden-tiary standard is reasonable and necessary medical expenses; and
(4) affirm the conviction, but reform the conditions of probation to delete the payment of restitution to the insurance carrier.
Since my colleagues reach other conclusions, I respectfully dissent.
. Why the trial judge took this route is unclear unless this was to be viewed as some type of appellate exercise. The judge could have simply ordered the entire amount paid to the injured *274victim and let reimbursement of the insurance carrier be between the carrier and the insured.
.Although Justice Brookshire states: "We simply do not know what position the appellant took on prior dates.’’, it is clear to me that (1) appellant’s prior positions had been the same and (2) the trial judge recognized this.
. There is the obvious distinction that Harrison is a condition of parole case while this case is a condition of probation case.
. Although Mr. O’Neil was not a victim named in the indictment, this question is academic to us, since appellant does not question the condition of restitution payments to Mr. O’Neil.
. See Martin, 806 S.W.2d at 240, n. 4.
. Obviously there are some who would argue that convicted criminals should lose all due process protection and do not merit the same evidentiary protection of non-convicted civil litigants.
.It is within everyday experience that medical providers often provide non-medical items and include these expenses in their bills.