Ted Sansom, Attorney at Law, Rockwall, TX, for appellant. Jeff Shell, Assistant District Attorney, Rockwall, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

COCHRAN, J., announced the judgment of the Court and delivered an opinion in which WOMACK, JOHNSON, and ALCALA, JJ., joined.

This case raises the old adage that you can't get blood from a turnip. The court of appeals modified the trial court's judgment to delete the requirement that appellant pay for a SCRAM device, concluding that a trial judge may not, over objection, order an indigent defendant to pay for a SCRAM device as a term of his probation without considering his financial ability. We agree that the trial judge did not actually “consider” appellant's ability to pay for a SCRAM device at the time of sentencing. But we disagree that the remedy is to simply delete the requirement. Instead, we will remand this case for the trial judge to be given an opportunity to consider appellant's financial ability in deciding whether, at this time, to order appellant to pay for a SCRAM device.

I.

When appellant was arrested and charged with sexual assault, he filled out a financial affidavit indicating that he was indigent. He was a 48–year–old carpenter who had lost his job a month earlier and was living in his former wife's home with two of his children. He swore that had no cash, no credit, no income, no real estate, no car, and he paid no rent, utilities, or other monthly bills. Given his indigency, the trial judge appointed him a lawyer, and granted his requests for investigative and expert witness fees. The trial judge set bail at $250,000, so appellant remained in jail for seventeen months until his trial.

The jury found appellant guilty of sexual assault and sentenced him to ten years' probation and an unprobated $10,000 fine. The trial judge sentenced appellant in accord with the jury's verdict, but he added the requirement of confinement in an Intermediate Sanction Facility (ISF) for six months to treat alcohol issues. At the sentencing hearing, the prosecution recommended, and the trial judge ordered, that appellant be fitted with a SCRAM device once he was released from the ISF. Defense counsel objected to requiring appellant to pay for the SCRAM device because appellant was, and had been, indigent for so long. The trial court seemed to understand the dilemma:

I don't know that there is—I get your point that as soon as he gets out six months from now or whenever it is, and he's already been in jail, that we don't want him to be immediately in violation because he can't afford to do those things.
But then the judge simply said that “he needs to work with probation on those matters” because “[t]hey're the ones that recommended the monitoring to him.” The written terms of probation made appellant wear and pay for the SCRAM device for the first two years of probation.

After sentencing, appellant once again filled out a financial affidavit of indigency. Once again, he had zero assets and no job, having spent the previous seventeen months in jail. Appellant's sister wrote a letter to the judge stating that appellant is blind in one eye from a nail-gun accident and that he was in need of “serious and immediate medical attention to care for his hereditary glaucoma and cataracts to save his eyesight in his one remaining eye.” She requested that appellant be released during the pendency of his appeal so that he could get quality medical attention. But the trial judge set an appeal bond at $250,000, so appellant has remained in jail while this case was on appeal.

The Bill of Costs shows that appellant was charged with $219.00 basic court costs, $100.00 child-sexual-assault court costs, $34.00 for a DNA Probation fee, $25.00 for Crime Stoppers, a late payment fee of $25.00 (if he could not pay the bill of costs within 30 days of sentencing), a $10,000.00 fine, and $58.19 in restitution. A later document ordered appellant to pay $6,675.00 for his appointed lawyer at trial. The terms of his probation required appellant to pay the $10,461.19 of fines and court costs (not including the attorney's fees) at a rate of $90 each month, beginning on December 1, 2011. His probation terms also included an additional $50.00 per month community supervision fee and a $5.00 per month fee for urinalysis testing. Additionally, appellant was ordered to attend and complete an Alcohol/Drug Assessment Program within 45 days, the undetermined costs of which appellant was to pay. Also, appellant was required to pay a sex-offender supervision fee in the amount of $600.00, payable at $5.00 per month. Finally, appellant was required to secure a SCRAM ankle monitor, maintain it for the first twenty-four months of his probation, and pay “all costs associated with the SCRAM monitor.”

In all, appellant was ordered to pay $10,461.19 in fines and court costs; $6,675.00 in attorneys fees; $600.00 in sex-offender supervision fees; and $6,000.00 in probation supervision fees for a total of $23,736.19 over the life of the ten-year probation or an average of nearly $200.00 a month. On top of that, appellant was ordered to pay the undetermined amounts for both the Alcohol/Drug Assessment Program and the SCRAM device. Appellant was also ordered to perform 140 hours of community service.

The court of appeals held that appellant had properly preserved his complaint that he was indigent and could not afford to pay for a SCRAM device; therefore, it modified the trial court's judgment to delete the condition that appellant pay for the costs of the SCRAM device. The court noted that (1) the trial judge may require appellant to wear a SCRAM device “if it does so in a way other than requiring him to pay the costs for it”; and (2) the trial judge could order appellant “to pay for the SCRAM device in the future if there is evidence of appellant's ability to pay.” The State appealed that modification.

II.

Under Article 42.12, the trial judge has authority to set the conditions of community supervision. The Legislature has granted wide authority to the trial judge by stating that “[c]onditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall ...” and then listing numerous possible “basic” conditions. One permissible condition is submission to electronic monitoring. Ordering that a probationer wear a SCRAM device is a permissible probation condition.

A trial judge may not require a defendant to make any monetary payments as a term of community supervision except those for “fines, court costs, restitution to the victim, and other conditions related personally to the rehabilitation of the defendantor otherwise expressly authorized by law.”

Whenever monetary payments are proposed as a term of probation, “[t]he court shall consider the ability of the defendant to make payments in ordering the defendant to make payments under this article.” This provision is mandatory: the trial judge must consider the defendant's ability to pay before imposing monetary conditions as a condition of probation. The Texas Legislature, like the United States Supreme Court, is “sensitive to the treatment of indigents in our criminal justice system,” and this provision reflects that sensitivity. It is a statutory recognition that the criminal-justice system may not punish people for their poverty and that probation is not merely for the rich. Thus, trial judges are statutorily required to consider a probationer's financial ability to pay fees and costs associated with probation conditions before imposing such requirements.

We have not directly addressed the question of precisely how and to what degree a trial judge must “consider” a probationer's financial ability. But, in Ex parte Gonzales, we stated that if a trial judge “ignores the defendant's ability to make payments, whether the payments are a condition of probation or for the costs of one's legal defense, it is possible that a defendant may be imprisoned solely due to his indigent status.” We noted that the United States Supreme Court, in addressing an Oregon recoupment statute, stated that “ ‘[t]he court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them,’ ” and concluded that our Texas recoupment statute “should operate in the same manner.” Thus, “the trial court's power to order reimbursement should be limited to the extent a defendant is reasonably able to do so.”

Although we have not spoken directly to the issue of how much or to what degree a trial court must “consider” a probationer's ability to pay fees and costs, one lower Texas court, in Pennington v. State, explained that this provision “does not mandate that the payments be within the financial means of the probationers” because the probationer could request extensions if necessary. That decision, however, both predated our discussion in Gonzales and did not involve an indigent probationer. Furthermore, Pennington is consistent with Gonzales to the extent that the trial judge has the discretion to assess probationary payments that are above a probationer's present income minus living expenses, if those payments are within limits that the probationer is “reasonably able” to pay. As Article 43.03(d) suggests, an indigent probationer should not be assessed payments that would cause him “undue hardship.”

Before a trial or appellate court can “consider” a defendant's ability to pay proposed payments, the defendant must provide evidence to support any claim that he is unable to make such payments without undue hardship. He should provide evidence of all assets and income as well as evidence of liabilities and living expenses so that the trial judge may compare one with the other and make any appropriate adjustments. In the case of indigent defendants being placed on community supervision, the trial judge will undoubtedly require the defendant to obtain a suitable job, so the defendant, prosecutor, or probation department may offer evidence of the likely range of anticipated income, as well as likely living expenses or other liabilities, such as child support orders.

III.

In the present case, the court of appeals held that appellant was indigent, presently incarcerated, and did not have any financial ability to pay the monthly cost of the SCRAM device. It explained,

The undisputed evidence at the sentencing hearing showed appellant had been incarcerated the previous sixteen months and would be incarcerated for at least six months while completing the ISF program. This evidence established that, at least as of the time of the sentencing hearing and upon his immediate release from ISF, appellant did not have the ability to pay for the SCRAM device. Consequently, we conclude the trial court abused its discretion by requiring appellant to pay for the SCRAM device.

In its Brief on discretionary review, the State argues that appellant failed to produce any affirmative evidence at the sentencing hearing that he could not pay for the SCRAM monitoring. It claims that counsel's unsworn statements to the trial judge are not evidence. That may be true, but appellant's two sworn affidavits of indigency, plus the undisputed fact that he was appointed counsel both at trial and on appeal are some evidence of his continuing indigency and present inability to pay for the SCRAM monitoring. Second, the State argues that the trial judge could not abuse his discretion because the costs of a SCRAM device were not legal services provided. Although the latter proposition—SCRAM payments are not legal fees—is undeniably true, we fail to see how the former proposition—a trial judge does not abuse his discretion—follows. The trial judge is required to consider the probationer's financial ability whenever he orders payments under Article 42.12, not just when he orders payments for attorney's fees. The State notes that appellant has failed to show that he would be imprisoned for failing to pay for the SCRAM device as payment immediately became due, but appellant notes that “the monitor costs are payable to the third-party corporate provider beginning the first month and there is no reason to suppose that the monitor would be provided without payment.”

Third, the State claims that the trial judge did, in fact, “consider” appellant's ability to pay for the SCRAM monitoring, because he stated that he understood appellant's argument that he was currently indigent and would remain so until after he was released from custody. The trial judge may have recognized the problem, but the present record does not support a conclusion that he “considered” appellant's indigency when he simply ordered appellant to “work with probation” because “They're the ones who recommended the monitoring[.]” Although the record shows that appellant was indigent both before and after trial, that does not inevitably and necessarily mean that he would remain indigent once he has been released and is able to look for a job.

The State relies on Pennington, discussed above, and Chauncey v. State, for the proposition that the trial judge did consider appellant's financial ability in ordering the SCRAM payments. But, as we have already noted, these cases were decided before our decision in Ex parte Gonzales, which stated that trial courts should order payments only if the defendant is, or might become, reasonably able to pay them, and those cases did not involve an indigent defendant. Although one of the terms of probation is that appellant “shall work faithfully at suitable employment as far as possible,” and the trial judge may reasonably assume that appellant will be able to obtain some type of carpenter job when he is released from the ISF, there is nothing in the record that demonstrates that he would be able to find a suitable job in the current market or that its likely income would allow him to support himself without “undue hardship” and also pay $90 per month in restitution and court costs, over $6,000 in attorney's fees, plus the monthly SCRAM fees.

Finally, the State argues that “[s]ince ‘no law’ categorically prohibited it, the trial court did not abuse its discretion in assessing the costs of a SCRAM device against [appellant].” But the State misreads the statute. Article 42.12, § 11(b) affirmatively mandates that the trial judge “shall consider” the probationer's financial ability in assessing any payments; the State is attempting to flip that statute into “need not consider” the probationer's financial ability. This provision is like that in Section 13 of the same article, dealing with DWI probations. There, under subsection (d), a DWI probationer may be required to participate in an alcohol-rehabilitation program and be ordered to “pay for all or part of the cost of such rehabilitation based on the defendant's ability to pay.” We think that a trial judge who orders the use of a SCRAM device (which is generally ordered for DWI probationers under Section 13) may order the defendant to pay all or part of the costs of that device “based on the defendant's ability to pay.”

The court of appeals explained that the trial judge may still (1) order appellant to wear a SCRAM device that is paid for by the county; or (2) modify the conditions of probation if appellant's financial status changes and order him to pay for all or part of the costs of the SCRAM device based upon his ability to pay at that time. But, if the trial judge conducts a hearing to consider evidence that supports a present finding that the appellant will be able to pay the SCRAM fees without undue hardship, then that condition need not be deleted. We therefore reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion. KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.
MEYERS, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.
PRICE, J., concurred.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

The Court misconstrues the meaning of the word “consider” when it holds that the trial court in this case did not actually “consider” appellant's ability to pay the cost of a SCRAM device. I would hold, as Judge Meyers does, that the trial court did indeed consider appellant's ability to pay for the device—the court considered it and then decided that appellant should pay for the device.

The legislature knows how to require that payments be based on ability to pay. It knows the difference between requiring an action, giving a judge total discretion regarding an action, and requiring consideration of an action. Article 42.12, § 13(d) contains examples of all three of these options. That statute provides:

If a judge requires as a condition of community supervision that the defendant participate in a prescribed course of conduct necessary for the rehabilitation of the defendant's drug or alcohol dependence condition, the judge shall require that the defendant pay for all or part of the cost of such rehabilitation based on the defendant's ability to pay. The judge may, in its discretion, credit such cost paid by the defendant against the fine assessed. In making a determination of a defendant's ability to pay the cost of rehabilitation under this subsection, the judge shall consider whether the defendant has insurance coverage that will pay for rehabilitation.
This statute does not help appellant because it applies only to convictions under Chapter 49 of the Penal Code (Intoxication and Alcoholic Beverage Offenses). Appellant was convicted of sexual assault of a child.

Article 42.12, § 11(b), which does apply to appellant, provides:

The court shall consider the ability of the defendant to make payments in ordering the defendant to make payments under this article.
It does not say, as Article 42, 12, § 13(d) does, that the trial court's decision is to be “based on the defendant's ability to pay.”

As one court of appeals has said:

The language of article 42.12, section 11(b) of the Texas Code of Criminal Procedure is unambiguous. It requires the trial court to “consider” the probationer's ability to make the payments ordered by the court. The language does not mandate that the payments be within the financial means of the probationers.

Also, when the trial court considered defense counsel's argument that appellant could not afford the SCRAM device, the court said “[W]e don't want him to be immediately in violation because he can't afford to do those things.” There is no indication that the trial court intended to revoke appellant's probation for failure to pay for the SCRAM device. And appellant was required as a condition of probation to “work faithfully at suitable employment as far as possible.” In ordering appellant to pay for the device, the trial court could take into account the fact that appellant might be able to afford the device in the future.

The Court quotes from Ex parte Gonzales, which is a case about recoupment of attorneys fees. The holding in that case, though, is that a court may not order a defendant confined for failure to repay the costs of his legal defense unless the court considers the defendant's ability to pay. I agree. I also agree that this holding should apply to a defendant's ability to pay for a SCRAM device. But, first, the trial court has not ordered appellant confined for failure to pay, and it may never do so. And second, the trial court talked about appellant's ability to pay, thought over defense counsel's arguments, and told counsel that appellant should work it out with the probation department. That is, the court “considered” appellant's ability to pay.

I respectfully dissent. MEYERS, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.

I agree with the majority that Article 42.12 § 11(b) of the Texas Code of Criminal Procedure requires the trial court to consider a defendant's ability to pay before imposing monetary conditions of probation. However, I also agree with the State's assertion that the trial court did consider Appellant's ability to pay, as mandated. Therefore, the majority's remand of the case is wholly unnecessary.

During the sentencing hearing, the trial court understood Appellant's indigence and decided to require him to work with probation personnel regarding payment for the SCRAM device. As the State points out, there was also no showing that Appellant would immediately default on the payment when due and subsequently be imprisoned. It seems clear that the court implicitly found that Appellant could make the payments by working with the probation office on the matter. There is no set standard as to what degree the court must consider a defendant's ability to pay and what evidence must be considered. I agree with the State and the Fort Worth Court of Appeals that the provision does not require that the payments be within a probationer's financial means because the probationer can request extensions. See Pennington v. State, 902 S.W.2d 752, 754 (Tex.App.-Fort Worth 1995, pet. ref'd). Remanding the case for the trial court “to be given an opportunity” to consider Appellant's ability to pay is a repetitive act that is a waste of judicial resources. The result will be the same as the first time the trial judge considered Appellant's ability to pay and any idea that the trial court's determination will be different is illogical.

Contrary to the majority's characterization, the trial court did more than simply acknowledge and reject Appellant's indigence100argument and it did not abuse its discretion in ordering Appellant to pay for the SCRAM device. The court's remand of the case simply forces the trial court to do something it has already done. For the foregoing reasons, I respectfully dissent.