dissenting.
The majority attempts to interpret Article 42.12, § 8(c), V.A.C.C.P., dealing with probation revocation for non-payment of fees, in such a way as to avoid what they term “quirky consequences.” However, in order to achieve this they ignore the clear wording of the statute. When a statute is clearly written it should not be for us to “rewrite it.” Because I believe the majority has done this I dissent.
Prior to 1977, the State, in attempting to revoke a probation for non-payment of fees, had the burden of proving by a preponderance of the evidence that: (1) the probationer did not pay the fee(s); (2) the probationer had the ability to pay the fee(s); and (3) the probationer’s failure to pay was intentional. Curtis v. State, 548 S.W.2d 57 (Tex.Cr.App.1977); Hardison v. State, 450 S.W.2d 638 (Tex.Cr.App.1970).
In 1977, the 65th Legislature enacted Article 42.12, § 8(c), V.A.C.C.P., which provides that in cases where the State is seeking probation revocation for non-payment of fees, the probationer’s inability to pay is an affirmative defense which he must prove by a preponderance of the evidence. Inexplicably, however, the 65th Legislature enacted two versions of § 8(c). The two sections read as follows:
(c) In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay probation fees, court costs, restitution, or reparations, . the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of the evidence.
Acts 1977, 65th Leg., p. 909, ch. 342 § 2, effective Aug. 29, 1977 (emphasis added),
(c) In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation which the probationer must prove by a preponderance of the , evidence.
Acts 1977, 65th Leg., p. 1058, ch. 388 § 2, effective Aug. 29, 1977 (emphasis added).
The two versions differ in that the second omitted the word “only” and added another category of payment, namely, “compensation paid to appointed counsel.” *740The two versions were allowed to co-exist for four years.
In 1981, the 67th Legislature solved the problem of dual enactments by passing a new Article 42.12, § 8(c), V.A.C.C.P., which embodied portions of both prior versions:
(c) In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations. The inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of the evidence.
Acts 1981, 67th Leg., p. 2246, Ch. 538 § 2, effective June 12, 1981 (emphasis added).
The probation revocation hearing in the instant case was held on January 16, 1981, prior to the effective date of the 1981 new version of § 8(c) which did away with the dual enactment of 1977. Thus, the two earlier versions of § 8(c) passed in 1977 are implicated. The Court of Appeals concluded, without specifying any reason, that the first quoted 1977 versions containing the word “only” applied. Since the motion to revoke contained allegations other than appellant’s failure to pay fees, i.e., appellant committed the offense of forgery by passing, § 8(c) by its own terms did not apply and appellant bore no burden to prove his inability to pay. As a result of this determination the Court of Appeals held the State to its burden established under pre-1977 case law, i.e., proof by a preponderance of the evidence of inability to pay and intentional non-payment. The Court of Appeals concluded that, while appellant’s ability to pay was adequately shown, there was no evidence of intent.
I agree that the controlling version of § 8(c) is the one containing the words “only.” It is clear that the 1977 Legislature intended to diminish the State’s burden in at least some cases involving the revocation of probation for non-payment of fees by shifting the issue of inability to pay to the probationer as an affirmative defense. However, it is not clear how far the Legislature intended to go. The first 1977 version of § 8(c) suggests that the burden will be shifted only in cases where the motion to revoke probation contains no allegations other than the probationer’s failure to pay fees. The second 1977 versions of § 8(c) suggests that the burden will always be shifted when an allegation is included in the motion to revoke probation that the probationer failed to pay fees regardless of the number or type of other allegations contained therein.
The subsequent actions of the 67th Legislature in 1981 indicates that the first 1977 version is the one the Legislature intended to pass. The 1981 version of § 8(c) contains portions of each of the earlier versions. Since the 1981 Legislature retained the word “only” in the new § 8(c) it is logical to assume that they must have intended to limit the burden shift by way of affirmative defense to the probationer to cases where the motion to revoke contains only allegations that the probationer “failed to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations.” As a result of this conclusion that version number one of § 8(c) controls, I agree with the Court of Appeals that the affirmative defense of inability to pay does not apply because of the inclusion in the motion to revoke probation of non-monetary allegations. Thus, the State is bound to prove its case under prior law, i.e., ability to pay and intentional non-payment. See Curtis, supra; Hardison, supra.
The majority calls this the “quirky consequence” of this interpretation. The “quirky consequence” of their interpretation is that we are apparently now empowered to rewrite statutes.
The majority concludes that the statute should allow the State to shift the burden of proving inability to pay to the probationer whenever the motion to revoke contains any monetary allegation regardless of what else is included therein. Perhaps the statute should do this, but it does not. In order to force the statute to allow this it *741must be rewritten and, in the instant case, the majority does not hesitate to do this.
The majority exercises its newfound power by taking into consideration “surrounding circumstances, legislative history, caption of the act and consequences of a particular construction ...” All of these seem to be very useful tools. However, it is not clear what use the majority is making of them.
The majority concludes that the Legislative history of the statute clearly reveals that the Legislature intended something other than what they wrote down. However, the Legislative history dictated in the majority opinion is nothing more than a recitation of the procedural history of the bill. I fail to see, and the majority fails to point out, how an outline of this procedure supports their interpretation of the statute.
The caption of the bill reads, in part, “defense in a probation revocation hearing to allegations of failure to pay certain amounts imposed as a condition of probation ... adding subsection (c) to Section 8, Article 42.12 ...” How does this support the majority’s interpretation of § 8(c)? I agree that the bill relates to probation revocation for failure to pay fees, but the caption does not support the majority’s interpretation that inability to pay is always an affirmative defense to motions to revoke probation which allege failure to pay some fees.
Apparently, “surrounding circumstances” includes two factors. First, the majority argues that the caselaw makes the legislative intent clear. Again, I fail to see how this is true. Relevant caselaw required the State to prove inability to pay and intentional non-payment. Curtis, supra; Hardison, supra. I agree that the Legislature intended to ease this burden somewhat, but how far did they intend to go? I have already argued that the burden shift was limited to situations where only failure to pay fees is alleged. The majority argues that the burden shift applies to all cases where failure to pay fees is alleged. The majority does not explain how the Legislature’s reaction to relevant caselaw supports their position.
Another “surrounding circumstance” relied upon by the majority is their belief that the word “only” is often misused. That may be true, but where is the evidence that it was misused by the Legislature in this case?
This only leaves the “consequence of a particular construction” and this is what we are really talking about here. The majority has determined that the consequence of a literal construction of the statute is illogical and, in order to remedy this, they have rewritten the statute effectively omitting the word “only.” Because I do not believe that this is our proper function but is that of the Legislature, I respectfully dissent.
TEAGUE and MILLER, JJ., join.