Restitution without regrets

Abdul Rahman Farukhi

Assistant District ­Attorney in Fort Bend County

An overview of how restitution works in the criminal justice system and an attempt to clear up some myths and misconceptions

I don’t always get to collect restitution, but when I do, it makes my crime victims happy. The first time a crime victim called to thank me was when she received a $500 restitution check. She was a victim of a criminal mischief case where we were able to order the defendant, her ex-boyfriend, to pay restitution for slashing her tires as a part of his plea. That $500 was what the victim made in a week, and the money helped her repay the loan she had taken out to buy new tires.
    If you’re a newer prosecutor, chances are that you handle this type of crime on a daily basis. We know that when we get restitution for our victims, we not only help make them whole but also show them that the criminal justice system actually works. Restitution also benefits defendants because it forces them to recognize the costs associated with their crimes.

Who can receive ­restitution?
In Texas, a crime victim has a constitutional right to restitution.1 If the victim suffered property loss or personal injury as a result of the defendant’s actions, then the defendant is responsible for paying restitution for any expenses incurred as a result of those crimes.2
    However, the law defines victims somewhat narrowly. For example, a court held that counseling expenses for the mother and daughter of a robbery victim were improperly ordered because the women were not direct victims of the crime.3 Also, police departments are not considered victims for purposes of the restitution statute when they spend money to investigate crimes;4 however, reimbursement can be ordered as a condition of community supervision for a number of costs, such as drug testing.5 (For a more comprehensive discussion on the authorized financial payments allowed by statute, seek out a copy of The Perfect Plea by John Bradley.)
    It is helpful to consider how restitution is related to the crime committed. In Gordon, the Court of Criminal Appeals overturned a trial court’s order to make a police officer pay the victim’s funeral expenses as restitution after the officer was acquitted of homicide but convicted of assault in the death of a suspect he had in custody.6 However, funeral expenses would be authorized in cases where death is a consequence of the crime.7 (If the victim is deceased and is owed restitution, that amount is paid to the victim’s estate.8)
    Sometimes unreported crime victims emerge during the course of investigating a defendant’s current crime. Given that so many cases are handled through pleas, it is a good practice to get the defendant to agree to the list of victims and the amounts owed to each.9 The power of plea-bargaining allows prosecutors to get restitution for victims as long as there is some basis in the record at the time of the plea.10 If a case involves several victims and there is no plea agreement, then prosecutors will need to adjudicate the defendant for every victim for whom they intend to collect restitution.11

Third parties are eligible
The Code of Criminal Procedure also allows the court to order the defendant to reimburse third parties for payments made to victims.12 Eligible third parties include insurance companies as well as the Crime Victim’s Compensation (CVC) fund. Prosecutors can get a statement of what CVC paid to a particular victim by checking with the victim assistance coordinator or contacting the Texas Attorney General’s office by email at [email protected] or by phone at 800/983-9933.
    Some defense attorneys and judges are under the impression that a victim’s out-of-pocket expenses are the only ones eligible for reimbursement, such as co-pays and deductibles, but that is not correct. Third parties who paid the victim’s bills, such as hospitals and insurance companies, can receive restitution.13 Once a prosecutor verifies the amounts paid by CVC or insurance companies, the court or the prosecutor can prepare a judgment or restitution order which states the entity that is owed restitution and the amount to be paid. Legally speaking, restitution payable to an entity such as CVC or an insurance company is no different from ordering restitution payable to a person; however, a prosecutor should include reference to any claim numbers so that the money ends up in the correct account.

How is the amount ­determined?
Ideally, restitution should not be disputed if prosecutors have written estimates of projected expenses or receipts of expenses the victim has paid. These receipts are often submitted as a part of the police report or submitted to the victim assistance coordinator in your office. If you do not have these receipts, you can ask the victim directly for this documentation. The best practice is to have your intake division request receipts prior to filing the case because it gives the best record of the value of the loss near the time of the incident. If there is a dispute about the amount of restitution owed, the prosecuting attorney has to prove the amount, and the burden is by a preponderance of the evidence.14 There must be a factual basis to support the restitution amount.15 A pre-sentence investigation report detailing restitution amounts is admissible, as is the testimony of anyone with personal knowledge regarding the restitution values.16 Of course, parties can stipulate to the value of restitution as a part of the plea, and if the parties agree to a restitution amount, the court will find the stated amount has sufficient factual basis.17
    When the court orders restitution, the court should award the higher amount of either the value of the property on the date of the loss or the value of the property on the date of sentencing.18 Unlike civil cases, there is no need for the victim to prove the expenses were reasonable as long as there is sufficient factual evidence in the record that the expense was incurred.19 
    I have come across defense attorneys who have argued that restitution is limited by the amount of loss described by the indictment—that’s simply not correct.20 Restitution is limited only by the evidence used to support the amount requested. The victim is also entitled to the full amount of restitution, despite a civil settlement for similar injuries, when it is likely there will be future medical expenses incurred.21
    Be aware that it is within the court’s discretion to order complete restitution, partial restitution, or no restitution to a victim.22 If judges do not order restitution or order partial restitution, they must state their reasons on the record.

Ordering restitution
Restitution can be ordered by the court in any case where the defendant is sentenced to jail, prison, or probation. To be effective, the restitution order should be a part of the court’s judgment, and the judgment should contain the amount of restitution as well as the name and address of the victim or agency that will send payments to the victim.23
    Restitution must be orally pronounced at the time of sentencing or it does not become part of the sentence and as a result, is unenforceable.24 Restitution cannot be later added to the written judgment of conviction unless it was previously a part of the oral pronouncement of sentence.25 Even if the defendant is on probation, the trial court cannot modify an existing probation to add restitution later.26
    One issue I encountered as a misdemeanor prosecutor was that judges would orally pronounce at sentencing, “And you shall pay restitution in the amount to be determined by the probation department.” Though the probation department may assist with collecting restitution, it is not permitted to determine the restitution amount or the payment schedule after the plea—the judge needs to order these matters at the time of sentencing.27
    Fortunately, if restitution is ordered but the amount or terms are not factually supported, the correct procedure is to remand the case back to the trial court for a restitution hearing.28 The defendant is not entitled to a new sentencing hearing; rather, the purpose is to give the prosecution a second opportunity to establish the factual basis for the restitution amount.29 In practice, such a re-hearing rarely happens because restitution is negotiated as a condition of the plea and I always get the defendant to stipulate to the restitution and waive his right to appeal as a part of the plea. The only times I have had to participate in a rehearing on restitution was when the court ordered restitution be paid to a person not eligible to receive it. It is significantly easier to do the restitution correctly the first time around because witnesses become unavailable as time goes on.

What if the defendant can’t pay?
Many prosecutors will not order restitution in jail or prison cases thinking there is no way the defendant can pay while sitting in a cell. While it’s true that the defendant can claim an inability to pay, restitution should still be ordered.
    Prosecutors often face pressure to drop restitution from a court order whenever any significant amount of restitution is involved, especially in cases involving jail time. Judges and defense attorneys may point to the Code of Criminal Procedure, which states that “the imposition of the order [of restitution] may not unduly complicate or prolong the sentencing process.”30 However, this statement has been interpreted by the Court of Criminal Appeals to mean that restitution is part of the sentencing process and “implies that restitution is imposed as part of the original sentence, and that the sentence is not complete until restitution is imposed.”31 In other words, this language covers situations where sentencing is suspended until a restitution hearing is held. By the way, it is permissible to hold the restitution hearing on another date as long as the parties are aware that sentencing will not be complete until the restitution hearing is held.32
    As long as the restitution is ordered, it can theoretically follow the defendant indefinitely. Note that bankruptcy does not discharge restitution obligations.33 Even if a defendant is sent to prison, as long as the Texas Department of Criminal Justice (TDCJ) receives a court order for restitution, authorities there can take money from the inmate’s account.34 If the defendant is released on parole, the Board of Pardons and Paroles is required to impose as a condition of release any unpaid restitution amount originally set by the trial court.35
    If a juvenile needs to pay restitution, he too can be ordered to pay. Juveniles who are unemancipated minors and unable to pay may perform community service to cover the debt, or the court may order the parents or persons who support the juvenile to pay.36
    In some cases, restitution can be collected through liens on property owned by the defendant at the time of the order as well as any property acquired afterwards.37 For a $5 filing fee, the Code of Criminal Procedure permits liens to be filed on the defendant’s property. Once perfected, the lien entitles victims to foreclose on the defendant for lack of payment. The lien lasts 10 years and can be renewed. A victim, the victim’s attorney, or even the prosecutor may file a lien on any interest in real property, any interest in tangible or intangible personal property, or any interest in a motor vehicle owned by a person convicted of a crime to secure payment of restitution.38 (I’ve never filed a restitution lien, nor had any of the prosecutors I talked to in my office, including some who have practiced for 30 years or more. But it’s definitely an option for the motivated prosecutor.) Therefore, it’s important to seek the full amount of restitution supported by the evidence. Though a court must consider the defendant’s ability to pay in probation cases, it is not required to limit restitution to an amount the defendant can presently afford.39

Conclusion
We can put victims first by making defendants pay restitution. After speaking to victims and victim assistance coordinators in my county, I’ve learned that crime victims get some closure and satisfaction just by knowing the restitution was ordered, even if it may not ever be received. Though everyone agrees restitution is important, it’s not something we think about unless something goes wrong, such as the defendant contesting the restitution condition in his probation as invalid, and by the appellate stage, it may be too late to fix. By understanding how restitution works in practice, we ensure our victims have the best chance in recovering the money they deserve.

Endnotes

1 Texas Const. art. I, §30.
2 Tex. Code Crim. Proc. art 42.037.
3 See Lemos v. State, 27 S.W.3d 42, 49 (Tex. App.—San Antonio 2000, pet. ref’d).
4 Uresti v. State, 98 S.W.3d 321, 338 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“expenses incurred by the Houston Police Department in its investigation of appellant were not sustained as the result of being the victim of a crime”).
5 Tex. Code Crim. Proc. art. 42.12(a)(19) (“Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense”).
6 Gordon v. State, 707 S.W.2d 626, 629-30 (Tex. Crim. App. 1986) (“a finding to order appellant to pay the expenses occasioned by that death would be a denial of due process, tantamount to penalizing appellant for an offense of which he was acquitted”).
7 Lemos, 27 S.W.3d at 46 (“the death of an aggravated robbery victim is a consequence of aggravated robbery for which the defendant is criminally responsible”).
8 Tex. Code Crim. Proc. art. 42.037(d).
9 Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) (“Here the appellant stipulated to a list of his victims and the amounts that he had stolen from them. There is no dispute that the appellant was criminally responsible for the thefts to which he pleaded no contest”).
10 Martin v. State, 874 S.W.2d 674, 679-80 (Tex. Crim. App. 1994) (“We do not intend that this opinion prevents an award of restitution to the extent agreed upon by the parties in a plea agreement, so long as the amounts agreed to and the persons to whom restitution is to be paid under the agreement have a factual basis in the record and are just.”); see also Tex. Penal Code §12.45 (“A person may, with the consent of the attorney for the State, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty”).
11 Ex parte Lewis, 892 S.W.2d 4, 6 (Tex. Crim. App. 1994) (“the Legislature intended to limit the discretion of the trial court in ordering restitution payments and accordingly limited restitution to the victim of the offense for which the defendant was convicted”).
12 Tex. Code Crim. Proc. art. 42.037.
13 Tex. Code Crim. Proc. art. 42.037(f); Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim. App. 1974) (affirming restitution order to insurance company that paid medical expenses).
14 Tex. Code Crim. Proc. art. 42.037(k).
15 Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999).
16 Id.
17 Jackson v. State, 720 S.W.2d 153 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d).
18 Tex. Code Crim. Proc. art. 42.037(b)(1)(B)(i)-(ii).
19 In the Matter of J.R., 907 S.W.2d 107 (Tex. App.—Austin 1995, no pet.) (holding that as long as there was proof of the amount of expense incurred, there was no need for an affidavit stating the expenses were reasonable).
20 Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) (rejecting the appellant’s argument that the amount of restitution that can be ordered for a theft conviction is restricted by the upper limit of the property-value range of theft).
21 Urias v. State, 987 S.W.2d 613 (Tex. App.—Austin 1999, no pet).
22 Tex. Code Crim. Proc. art. 42.037(a).
23 Tex. Code Crim. Proc. art. 42.01, §1(25).
24 Tex. Code Crim. Proc. art. 42.03, §1(a) (“sentence shall be pronounced in the defendant’s presence”).
25 See Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref’d).
26 See Bailey v. State, 160 S.W.3d 11, 16–18 (Tex. Crim. App. 2004) (Cochran, J., concurring) (“The trial court may not, however, alter or modify the terms and conditions of probation to add a restitution order which was never made orally in open court and in the defendant’s presence at the sentencing hearing”).
27 See Cox v. State, 445 S.W.2d 200, 201 (Tex. Crim. App. 1969); Simpson v. State, 772 S.W.2d 276, 280 (Tex. App.—Amarillo 1989, no pet).
28 See Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000).
29 Beedy v. State, 250 S.W.3d 107, 112–13 (Tex. Crim. App. 2008).
30 Tex. Code Crim. Proc. art. 42.037(e).
31 Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004).
32 See Id.
33 Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999); also see Rudy Ramirez & Elizabeth Dondlinger, “Enforcing Restitution,” in The Prosecutor, Vol. 39 No. 6 (2009).
34 See Tex. Gov’t Code §501.014(e).
35 Tex. Code Crim. Proc. art. 42.037(h).
36 Tex. Code Crim. Proc. art. 42.037(p)(2)(A)-(B).
37 Tex. Code Crim. Proc. arts. 42.22, 56.01 (restitution liens can be filed for victims of sexual assault, kidnapping, aggravated robbery, trafficking of persons, or injury to a child, elderly individual, or disabled individual or to whomever has suffered personal injury or death as a result of the criminal conduct of another).
38 43 Tex. Admin. Code §217.7.
39 Pennington v. State, 902 S.W.2d 752, 754 (Tex. App.—Fort Worth 1995, pet. ref’d) (“The language [of Tex. Code. Crim. Proc. art. 42.12] does not mandate that the payments be within the financial means of the probationers”).