Brimzy, Latora

The State moved to revoke Brimzy’s community supervision because she failed to (1) pay monthly supervision fees and (2) participate in anger management.  The trial court revoked based on her failure to pay.   

On appeal, Brimzy claimed that the revocation violated Tex. Code Crim. Proc. art. 42A.751(i) because the State failed to prove she had the ability to pay.   

Article 42A.751(i) provides: “In a revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees . . . , the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.” (emphasis added).   

The court of appeals focused on Article 42A.751(i)’s use of “only” and asked, “[D]oes the statute apply when the State raised other grounds for revocation beyond a failure to pay in its motion and at the hearing[,] but the trial court only affirmatively found a failure to pay as grounds for revocation?”  The court answered in the affirmative, reasoning that the Legislature could not have intended to let the State avoid the statutory burden of proof merely by alleging an additional ground for revocation. 

The State argues that the plain reading of the statute limits its application to cases where failure to pay is the sole alleged ground for revocation. This interpretation, the State contends, is not absurd.  To the contrary, it provides clarity and fairness by giving both parties—especially the State—advance notice of what must be proven at the hearing. Under the court of appeals’ approach, the State may be blindsided if the trial court ultimately bases revocation on non-payment grounds not emphasized or expected at the hearing, as occurred here; although the court orally cited both failure to pay and failure to attend anger management, the written order rested only on non-payment. 

The State acknowledges that the lower court’s construction aligns with the Court of Criminal Appeals’ prior construction of a predecessor statute.  In Stanfield v. State, the Court read “only” as conveying “at the very least.” 718 S.W.2d 734 (Tex. Crim. App. 1986).  But, the State points out, the predecessor statute made inability to pay an affirmative defense, so the prior reading made sense.  As the Stanfield Court recognized, it would have been absurd to negate the explicit affirmative defense by shifting the burden back to the State to prove ability to pay. Since the statutory structure has changed and no longer leads to an absurd result, the State argues that Stanfield’s construction shouldn’t be carried forward.