
    Melissa Ann MERCER, Appellant v. The STATE of Texas
    NO. PD-1711-13
    Court of Criminal Appeals of Texas.
    Delivered: January 14, 2015
    Julie M. Balovich, Bee County Regional, Public Defender, 331A N Washington Street, Beeville, TX 78102, for Appellant.
    Stacey Goldstein, State Prosecuting Attorney, Lisa C. McMinn, State’s Attorney, Austin, TX, for State.
   OPINION

Hervey, J.,

delivered the opinion of the Court

in which Keller , P.J., Johnson, Keasler, Alcala, Richardson, Yeary, Newell, JJ., joined.

Here we are asked to consider whether a defendant on community supervision for a state-jail felony may be required to reimburse a county for the cost of her incarceration in county jail as a condition of her community supervision. However, because we conclude the court of appeals incorrectly analyzed the relevant issue in this case, we vacate the judgment of the court of appeals and remand this cause for reconsideration in light of this opinion.

Background

Appellant, Melissa Ann Mercer, pled guilty to debit-card abuse and was placed on community supervision for five years. On numerous occasions, the trial court amended Appellant’s conditions of community supervision sua sponte and without a hearing. However, Appellant signed each order amending the conditions of her community supervision.

Later, the trial court held a hearing with Appellant, defense counsel, and the prosecutor present, revoked Appellant’s community supervision, and sentenced her to two years’ confinement. The judge also ordered her to pay the costs she had failed to pay as conditions of her community supervision, including payment of her outstanding fine, court costs, and reimbursement for costs of her confinement in county jail while she was on community supervision. At the revocation hearing, Appellant stipulated to evidence proffered by the State and pled true to all alleged violations of her conditions of community supervision, including failing to pay her fine, court costs, and reimbursement as ordered as conditions of her community supervision. Appellant did not object at the hearing.

Appellant appealed, challenging the assessment of $160 for the costs of her confinement in the county jail. The court of appeals granted Appellant relief, holding that the trial court did not have the express authority, under Article 42.12 of the Texas Code of Criminal Procedure, to order Appellant to reimburse the costs of her confinement as a condition of community supervision. The court’s remedy was to strike the reimbursement amount ordered to be paid (as part of Appellant’s sentence) after the judge revoked Appel- ■ lant’s community supervision. See Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271, at *2 (Tex.App.—Corpus Christi Nov. 14, 2013) (mem.op.) (not designated for publication). We granted the State Prosecuting Attorney’s petition for review on the following grounds:

1. Is a challenge to a community supervision condition, imposed in a modification order entered without a hearing, forfeited on appeal from revocation when the probationer was served with the modification order and could have timely objected in the trial court but failed to do so?
2. On appeal from revocation, did Appellant forfeit her challenge to the imposition of incarceration reimbursement costs as a supervision condition by failing to object when the judge included the outstanding costs in the revocation judgment?
3.Is the community supervision condition for misdemeanor offenses that authorizes reimbursement costs for confinement as a supervisión condition properly imposed in a state jail felony case when, by statute, a judge can impose any condition authorized for a non-state jail felony offense?

Discussion

The issue has been presented as one of whether ordering reimbursement for costs of confinement is a valid condition of community supervision in non-misdemeanor cases. After reviewing the record, we conclude that the issue is not whether the court had the authority to impose reimbursement as a condition of Appellant’s community supervision, but rather whether the judge had the authority to order Appellant after revocation, as part of her sentence, to pay the balance of her fine, costs, and reimbursement.

Because the court of appeals granted Appellant relief on an erroneous basis, we vacate the judgment of the court of appeals and remand this cause to the court of appeals for further proceedings. Furthermore, we note that the State argued at the court of appeals, and in its brief to this Court, that Appellant failed to preserve any complaint for appellate review because she did not object at the revocation hearing despite having an opportunity to do so. Also, for the first time, Appellant argues that there was an insufficient basis to order repayment of costs in this case because Appellant is indigent, and that her argument may be raised for the first time on appeal. On remand, the court of appeals should address preservation of error and any other properly presented issues that necessarily must be addressed to resolve Appellant’s appeal.

Johnson, J., filed a concurring opinion. Alcala, J., filed a concurring opinion.

Meyers, J., did not participate.

Johnson, J.,

filed a 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 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.

I join the opinion of the Court.

Alcala, J.,

filed a concurring opinion.

I join this Court’s majority opinion and its judgment reversing and remanding this case to the court of appeals. I write separately to address my reasoning with respect to the analysis in the court of appeals’ opinion regarding (1) preservation of error, and (2) the propriety of an order for reimbursement for incarceration in a county jail as a condition of state-jail felony probation. See Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271, at *2 (Tex.App.-Corpus Christi Nov. 14, 2013) (mem.op.) (not designated for publication).

I. Preservation of Error

As this Court’s majority opinion points out, the pertinent question in this case is whether the trial court properly ordered appellant to pay $160 in reimbursement in its final judgment revoking community supervision and sentencing her to imprisonment. Although I agree with the majority opinion that the court of appeals erred by addressing preservation of error as to the wrong juncture of the proceedings, I take this opportunity to additionally point out that the court of appeals did properly describe the law with respect to preservation of error. The court of appeals noted that a person may not be held to have forfeited error when he has not had an opportunity to object. See Burt v. State, 396 S.W.3d 574, 577-78 (Tex.Crim.App.2013) (“The requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there[,]” and “if an appellant never had the opportunity to object, then he has not forfeited error”).

The record appears to suggest that the trial court’s oral pronouncement at the time of sentencing did not give appellant clear notice that she would be required to reimburse the county for the costs of her prior incarceration. After revoking appellant’s community supervision and sentencing her to two years’ confinement in a state-jail facility, the trial court’s oral pronouncement ordered her to pay “the balance of the unpaid fine, fees, costs, and restitution, if it can be collected, on a state jail case, which I don’t think it really can be.” The trial court referred to “restitution,” a matter described in Article 42.037, rather than “reimbursement” for incarceration, a matter described in Article 42.038(b). Compare Tex.Code Crim. Proc. art. 42.037(a) (providing for restitution for crime victims), with Tex.Code Crim. Proc. art. 42.038(b) (providing for reimbursement for confinement expenses). And the trial court did not orally pronounce the amount of “restitution” owed by appellant to reimburse the county for her incarceration. See Burt, 396 S.W.3d at 578-79. Although the record seems to suggest that the oral pronouncement did not fairly apprise appellant of her need to assert an objection on the basis that the trial court could not order reimbursement for the costs of her prior confinement in the county jail, I agree with this Court’s majority opinion that this is a matter for resolution in the first instance by the court of appeals on remand.

II. Reimbursement for Incarceration in County Jail in State-Jail Felony Probation

Although I agree with this Court’s majority opinion that remands this case for the court of appeals to more specifically decide whether the trial court erred by including the unpaid amounts of reimbursement in its judgment of revocation, I write separately to address the court of appeals’ broader holding that the trial court was not authorized to order reimbursement for the costs of confinement in a county jail. The court of appeals broadly held that reimbursement was not permitted even as a condition of community supervision. If it was correct on that point, and assuming that error was preserved, the court of appeals would have properly deleted the reimbursement amount from the trial court’s judgment sentencing appellant to imprisonment because the inclusion of reimbursement in the final judgment was predicated on the fact that appellant had not paid the reimbursement ordered as a condition of her community supervision. In short, if appellant is correct as to her broader contention that reimbursement may not be included as a condition of community supervision, then this Court would be required to remand for only an analysis of preservation of error.

The court of appeals stated, “[W]e see nothing in the statute that authorizes the trial court to order a probationer in a felony case to reimburse the cost of her confinement.” See Mercer, 2013 WL 6055271, at *2 I disagree with this statement of the law by the court of appeals. I conclude that a trial court may order a non-indigent defendant on community supervision for a state-jail felony case to reimburse a county for the costs of confinement. A judge sentencing a person to state-jail felony community supervision may “impose any condition of community supervision on a defendant that the judge could impose on a defendant placed on supervision for an offense other than a state jail felony.” Tex.Code Crim. Proc. art. 42.12, § 15(c)(1). Because he may be subject to any of the conditions that might be imposed on a misdemeanor defendant on community supervision, a non-indigent defendant on community supervision for a state-jail felony may be required to reimburse the county for the costs of her confinement in a county jail as a condition of community supervision. See Tex.Code Cmm. Proc. art. 42.038(b), (c) (court that requires misdemeanor probationer to “submit to a period of confinement in a county jail as a condition of community supervision may also require as a condition of community supervision that the defendant reimburse the county for the defendant’s confinement,” so long as the defendant is not indigent). Furthermore, the Code generally permits a trial court to “impose any reasonable condition” as a condition of community supervision. See Tex.Code Crim. Proc. art. 42.12, § 11(a) (listing possible conditions of community supervision including multiple types of reimbursements and permitting judge to generally “impose any reasonable condition”). Because the Code permits a trial court to order reimbursement for jail time served as a condition of community supervision for non-indigent state-jail defendants, I conclude that the court of appeals erred by holding that no statute authorized the trial court’s order for reimbursement as a condition of community supervision.

Unlike the broader question that asks whether a trial court may order reimbursement of this sort as a condition of community supervision, the more specific question here, as noted by the majority opinion, is whether that reimbursement amount may be included in a judgment revoking community supervision and sentencing a defendant to a term in a state-jail facility. That question was not addressed by the court of appeals. But, perhaps the question was not addressed because appellant did not adequately make that argument to that court. It is not entirely clear to me that appellant has adequately presented that challenge in her appellate briefs, which largely focus on the propriety of the reimbursement order in her conditions of community supervision. In her appellate brief to the court of appeals, however, a small portion of it asserts that the complained-of fees were ordered when the trial court had sentenced her to imprisonment. To that extent, I conclude that the court of appeals should address whether appellant, by failing to adequately present the argument in her appellate brief, has forfeited her complaint as to the inclusion of reimbursement for the costs of her prior county-jail confinement in the trial court’s judgment sentencing her to prison.

Assuming that appellant’s brief to the court of appeals presented the argument that the trial court may not order reimbursement for her confinement in a county jail upon revocation of a state-jail community supervision, then the merits of that issue become extremely complex. The Code of Criminal Procedure lists in detail what may be included in a trial court’s judgment, and reimbursement for the costs of incarceration is neither included in the list nor does it appear in another section of the Code that requires the judgment to include restitution and reparation. See Tex.Code CRIM. Proc. art. 42.01 (listing items that “shall” be reflected in the judgment and specifically listing restitution in § 1(25)); Tex.Code Crim. Proc. art. 42.12, § 23(a) (stating, “The judge shall enter the amount of restitution or reparation in the judgment in the case.”). Regardless, even though it is not specifically listed in the Code, a trial court may have in its general power the authority to order this type of reimbursement under these circumstances in which the reimbursement had been a properly included, unfulfilled condition of community supervision. If the issue has not been forfeited due to appellant’s failure to object at her revocation hearing or for inadequate briefing, then it presents a difficult question of apparent first impression needing resolution in the court of appeals.

With these comments, I join the majority opinion. 
      
      . The trial court used the term "restitution.” We shall use the term "reimbursement,” as the court of appeals did through all but the conclusion of its opinion, because the Texas Code of Criminal Procedure article dealing with confinement expenses is styled, "Reimbursement for Confinement Expenses.” Tex. Code Crim. Proc. art. 42.038.
     
      
      . On February 12, 2013, Appellant signed a stipulation of evidence in which she judicially confessed to all 24 of the allegations contained in an attached affidavit sworn to by Grace Garcia, although the State later abandoned allegations 5 and 10 through 13. Among the numerous other allegations of violations of her conditions of community supervision, Appellant admitted that she had failed to pay the assessed costs and fines.
     
      
      .When the judge revoked Appellant's community supervision and sentenced her, he stated in part,
      Her community supervision will be revoked, the original sentence imposed, two years in a state jail with the balance of the unpaid fine, fees, costs and restitution, if it can be collected, on a state jail case, which I don’t think it really can be.
     
      
      . This fact was essentially acknowledged by Appellant’s court-of-appeals counsel when he stated,
      The restitution payments ordered in this case are not made 'as a condition of’ [community supervision] because the trial court [ ] removed Appellant from [community supervision] and ordered Appellant’s sentence executed. Therefore, article 42.12 cannot serve as a basis to order restitution in this executed sentence even if the general language of 42.12 could authorize those payments as a condition of [community supervision].
      Appellant’s Brief at 8, Mercer v. State, 2013 WL 6055271 (Tex.App.—Corpus Christi Nov. 14, 2013) (No. 13-13-00150-CR) (record citation omitted).
     
      
      . The issue in this case is whether the trial court may include, in its judgment revoking community supervision and sentencing a defendant to prison, unfulfilled amounts that had been ordered only as a condition of community supervision. In my mind, those amounts ordered only as part of a community supervision are characteristically different from amounts in a trial court’s judgment that are to be paid as part of the court's judgment, regardless of the community supervision, such as the Bill of Costs.
     
      
      . Article 42.038(a) states, "In addition to any fine, cost, or fee authorized by law, a court that sentences a defendant convicted of a misdemeanor to serve a term of confinement in county jail and orders execution of the sentence may require the defendant to reimburse the county for the defendant’s confinement at a rate of $25 a day.” Tex.Code Crim. Proc. art. 42.038(a). Article 42.038(b) states that when reimbursement for confinement in a county jail is ordered as a condition of community supervision, "the amount of reimbursement [is to be] determined as if the defendant were serving an executed sentence.” Tex.Code Crim. Proc. art. 42.038(b). Furthermore, a trial court may not require reimbursement if the judge determines that "the defendant is indigent[J” Tex.Code Crim. Proc. art. 42.038(c). Here, the trial court required appellant to pay $40 per day, and the record suggests that appellant was indigent. Because this Court remands the case for consideration of whether the trial court’s reimbursement order was proper, this Court does not reach the merits on the question whether the trial court made any determination that appellant was not indigent when it ordered reimbursement. Any determination on the merits must be made by the court of appeals if the matter has not been forfeited due to the lack of a trial objection or argument on appeal.
     
      
      . The Code requires that a judgment include the amount of any "reparation” owed by the defendant. See Tex. Code Crim. Proc. art. 42.12, § 23(a). The reimbursement at issue in this appeal could possibly fit within the broadly understood definition of the word "reparation,” which is undefined in the Code. Black's Law Dictionary defines "reparation” as the "act of making amends for a wrong.” Black’s Law Dictionary 1490 (10th ed. 2014). Because a defendant sentenced to confinement in county jail as a condition of community supervision is making amends for his wrong against society, it is possible that the . trial court's order of reimbursement to the county for that incarceration could be classified as an order of reparation. It is also possible, however, that reparation was intended solely for the victim of an offense and was merely an alternative phrasing for restitution. It may be necessary to examine all the extra-textual factors to answer the question whether reparations include this type of reimbursement.
     