Busby v. State

MANSFIELD, Judge,

dissenting.

Appellant was charged by indictment for four second degree felony offenses of misapplication of fiduciary property. He was also charged in the same indictment for one third degree felony offense of misapplication of fiduciary property. The District Attorney of Bell County recused herself and a private attorney from Dallas was appointed as special prosecutor.1 Appellant pled guilty to all five of the charged offenses and the trial court found him guilty. Appellant was sentenced to ten years’ imprisonment, probated for ten years’ community supervision. He was ordered to perform community service. In cause number 44, 932 (one of the four second degree felony misapplication of fiduciary property cases), he was ordered to pay the $203,695.21 special prosecutor’s fee as a court cost.

Appellant appealed the assessment of the special prosecutor’s fees as court costs, as well as the part of the court’s order requiring him to pay restitution to one of his former clients. The court of appeals held that payment of the special prosecutor’s fees as court costs, as a condition of probation, was not *632specifically provided for by Texas Code of Criminal Procedure, Article 42.12, Section 11(b), Article 26.05(d) or Article 2.07(c). Accordingly, it deleted that portion of the trial court’s order requiring appellant to reimburse Bell County for the special prosecutor’s fee. Busby v. State, 951 S.W.2d 928 (Tex.App. — Austin 1997).

I believe that, taken together, Articles 2.07(c), 26.05(d) and 42.12, Section 11(a) do provide authority for the trial court to order payment of a special prosecutor’s fees as a condition of community supervision. A special prosecutor is, in many ways, similar to an attorney appointed by the court to represent an indigent defendant. Both are paid out of the general funds of the county in which the prosecution was initiated. Article 26.05(d) specifically allows funds paid to a court-appointed attorney for an indigent defendant to be included as costs of court. Article 26.05(e) permits the court to order a defendant, who it finds to be financially able to do so, to reimburse the county for all or part of the costs of the legal services provided said defendant by the attorney appointed to represent him.

In the present case, due to appellant’s status as a former district judge and prominent attorney in Bell County, the elected district attorney reasonably disqualified herself from prosecuting appellant. A private attorney was appointed, pursuant to Article 2.07(a), as special prosecutor, by the trial court. Article 2.07(c) also provides the appointed attorney “shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.”

Article 42.12, Section 11(a) provides:

The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate or reform the defendant. Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall_2 (Emphases added.)

It is clear, from the express language of Article 42.12, Section 11(a), the Legislature did not intend to limit the trial court to imposition of the conditions of community supervision specified therein. Cognizant of the broad inherent powers granted Texas trial courts by Texas Government Code, Section 21.001, the Legislature’s intent, as expressed in Article 42.12, Section 11(a), was to authorize Texas trial courts to impose any reasonable condition of community supervision. This interpretation is consistent with our opinion in Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991) (process of interpretation of statutory language in order to determine legislative intent).

In the present case, it was determined the people of Bell County suffered harm — the cost of a special prosecutor — as a direct result of appellant’s criminal conduct. The trial court ordered appellant, as a condition of community supervision, to restore the people of Bell County by paying an amount equal to the cost of the special prosecutor. Conceptually, requiring appellant to repay Bell County for the cost of the special prosecutor differs little from requiring him — had he been an indigent provided appointed counsel paid for by the county — to repay the county for costs of appointed counsel if found financially able to do so. This condition of community supervision is clearly reasonable as defined under Article 42.12, Section 11(a). Accordingly, there was no abuse of discretion by the trial court. I would therefore hold that a non-indigent defendant may be required, a condition of community supervision, to pay the costs of the special prosecutor as costs of court.

I would overrule the judgment of the court of appeals and would affirm the judgment of *633the trial court. I respectfully dissent.3

. Appellant was a former Bell County district judge and a prominent attorney practicing in Bell County. The conduct alleged in the indictment involved misapplication of funds belonging to clients.

. Section 11(a) lists twenty-two different conditions of community supervision, including submission to alcohoi/drug testing, obeying the law, reporting to his probation officer, etc.

. It is not clear from the record whether appellant is unable to pay all or part of the costs of the special prosecutor. Any bona fide claim of indi-gency can be made to the trial court.