BRIMZY, LATORA v. the State of Texas

In the Court of Criminal

Appeals of Texas

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No. PD-0101-25

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LATORA BRIMZY, Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review

From the Fourteenth Court of Appeals

Harris County

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YEARY, J., delivered the opinion of the Court in which SCHENCK,

P.J., and KEEL, FINLEY, and PARKER, JJ., joined. RICHARDSON, NEWELL,

and MCCLURE, J.J., concurred in the result. WALKER, J., dissented.

This case involves a dispute in the courts of appeals over the scope

of Article 42A.751(i) of the Texas Code of Criminal Procedure—better

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known as the “failure-to-pay statute.” TEX. CODE CRIM. PROC. art.

42A.751(i). This statute explains:

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 or

court costs or by failing to pay the costs of legal services as

described by Article 42A.301(b)(11), 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.

TEX. CODE CRIM. PROC. art. 42A.751(i) (all emphasis added). This

subsection of the community-supervision-revocation statute imposes a

burden on the State to prove a probationer’s ability to pay, and failure

to pay, among other things, court costs and community supervision fees

in certain proceedings. 1

Some courts of appeals have concluded that Article 42A.751(i)

applies only when nonpayment is the sole ground alleged by the State in

its pleading. E.g., Davis v. State, 591 S.W.3d 183, 193 (Tex. App.—

Houston [1st Dist.] 2019, no pet.). Other courts of appeals, including the

court of appeals in this case, have concluded that 42A.751(i) applies

1 This case involves a hearing on a motion to revoke and proceed to

adjudicate following deferred adjudication community supervision rather than

a motion to revoke ordinary community supervision. See TEX. CODE CRIM.

PROC. Chapter 42A, Subchapter C, art. 42A.108 (providing for a hearing upon

a violation of deferred-adjudication community supervision). Because neither

party contests the application of Article 42A.751(i) to a hearing on an alleged

violation of deferred-adjudication community supervision, rather than the

revocation of regular community supervision, we assume, without deciding,

that Article 42A.751(i) applies equally to adjudication proceedings.

Additionally, we note that the terminology of “probation” was converted to

“community supervision” in 1993. See Acts 1993, 73rd Leg., ch. 900, §§ 4.01,

13.03, eff. Sept. 1, 1993. Nevertheless, for ease of reference, we will call a

person serving community supervision a “probationer” throughout this

opinion.

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anytime that nonpayment is the sole basis for the trial court’s order,

regardless of whether the State has also alleged other grounds. E.g.,

Scales v. State, 658 S.W.3d 366, 374 (Tex. App.—Corpus Christi 2022,

no pet.). We conclude that the language of 42A.751(i) plainly does not

apply unless nonpayment is the sole allegation. 2

Because the State proceeded here through its pleadings on other

grounds as well, at least one of which was pursued by the State

throughout the adjudication proceedings, we conclude that Article

42A.751(i) did not apply to Appellant’s case. This is true, even though

the trial court ultimately ordered adjudication only on the nonpayment

ground alleged by the State. We therefore reverse the judgment of the

court of appeals and reinstate the trial court’s order adjudicating

Appellant’s guilt.

2 We do not necessarily conclude that Article 42A.751(i) applies only

when the State’s written motion to revoke or motion to proceed to adjudication

has “alleged only” the nonpayment of the enumerated costs. The statute does

not explicitly limit its application to cases of revocation or adjudication in

which the State’s pleading alleged only such a ground. It does not say, for

example: “In a revocation hearing at which the State’s motion to revoke

community supervision alleged only that . . . .” (Emphasis added). Instead, on

its face, it simply says: “In a revocation hearing at which it is alleged only that

. . . .” (Emphasis added). This difference could lend itself, we think, to broader

interpretation. It could be argued that the limitation on application of the

State’s burden inheres any time the State’s motion to revoke or proceed to

adjudication at least includes an allegation (or allegations) of failure to make

one of the enumerated payments, and the State opts to proceed at the hearing

only on that specific allegation (or those specific allegations), and no other, for

example, by abandoning all but the nonpayment allegation(s) in its motion to

revoke/adjudicate. But we need not resolve that argument to dispose of the

instant case. Our conclusion that the court of appeals erred to hold that Article

42A.751(i) applies even when the State alleges and pursues other, non-

payment-related claims will suffice to resolve the case before us. “We leave for

another day the task of further winnowing the meaning of [the statute], should

the need arise.” Timmins v. State, 601 S.W.3d 345, 356 (Tex. Crim. App. 2020).

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I. BACKGROUND

A. Initial Proceedings

Appellant was indicted for the felony offense of aggravated

assault on a family member. TEX. PENAL CODE § 22.01(b)(2). She pled

guilty to the lesser misdemeanor offense of assault on a family member

in exchange for one year of deferred-adjudication community

supervision. TEX. PENAL CODE § 22.01(a)(1). Then, later, the trial court

extended Appellant’s deferred adjudication for another year.

During that additional year, the State moved to adjudicate

Appellant’s guilt. It alleged that she (1) committed a new offense, (2)

failed to participate in anger management training, and (3) failed to pay,

among other monetary obligations, community supervision fees.

Appellant pled not true to all of the State’s allegations. At the hearing,

however, the State abandoned the new-offense allegation, but it

continued to pursue all of the failure-to-pay allegations and the failure

to participate in anger-management-training allegation.

At the conclusion of the hearing, the trial court adjudicated

Appellant guilty and sentenced her to one year in jail. But the trial

court’s order adjudicating Appellant’s guilt listed only her failure to pay

fees as the basis for the adjudication. Appellant then gave notice of

appeal from the trial court’s order.

B. Appellate Proceedings

In the court of appeals, Appellant argued that the trial court

abused its discretion by adjudicating her guilt because the State did not

meet its statutory burden of proof under the failure-to-pay statute.

Brimzy v. State, ___ S.W.3d ___, No. 14-22-00631-CR, 2024 WL 1313406

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at *1 (Tex. App.—Houston [14th Dist.] Mar. 28, 2024). 3 The court of

appeals sustained Appellant’s claim. It concluded that Article 42A.751(i)

imposes a burden on the State in all cases in which nonpayment is “the

sole ground supporting revocation.” Id. at *1, *5. It made no difference

to the court of appeals whether or not “the State alleged other grounds

for revocation” in its pleading. Id. at *1, *5.

The court of appeals relied primarily for its conclusion on this

Court’s opinion in Stanfield v. State, 718 S.W.2d 734 (Tex. Crim. App.

1986). Brimzy, 2024 WL 1313406 at *5. In Stanfield, this Court had

determined that an early predecessor to the current failure-to-pay

statute, former Article 42.12, Section 8(c), of the Code of Criminal

Procedure, applied to all cases of revocation involving nonpayment of

supervision fees as a ground therefor, regardless of the content of the

State’s motion to revoke the community supervision.

The court of appeals explained that the Legislature evinced an

intent that the statute should not apply exclusively to cases in which

nonpayment is the sole ground alleged when it eventually amended

former Article 42.12, Section 8(c), in 2007, to comply with the United

States Supreme Court decision in Bearden v. Georgia. 461 U.S. 660

(1983); Brimzy, 2024 WL 1313406 at *5. Bearden had imposed certain

due process requirements whenever probation is revoked based on

nonpayment alone. 461 U.S. 660, 665. Finally, the court of appeals

3 Appellant also argued that the trial court violated her federal due

process rights by sentencing her to incarceration for failure to pay community

supervision fees without first determining whether her failure to pay was

willful. Id. But the court of appeals did not address the merits of the due

process claim because it concluded that Appellant had failed to preserve it

during the adjudication proceeding. Id. at *2.

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determined that restricting the statute’s application to cases in which

nonpayment is the sole ground alleged would be absurd because it would

permit the State to avoid application of the statute by simply alleging

additional grounds beyond nonpayment—regardless of merit. Id. (citing

Stanfield, 718 S.W.2d at 736−37).

The State sought discretionary review in this Court, asserting two

issues. We granted review to address the State’s second issue: “Does the

failure-to-pay statute apply to adjudication proceedings where the State

alleges nonpayment and additional non-monetary grounds, but the trial

court adjudicates on solely the nonpayment ground?” 4 Our answer is no.

II. THE HISTORY OF CURRENT ARTICLE 42A.751(i)

The failure-to-pay statute is currently found in Article 42A.751(i),

and it establishes that “[i]n 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[.]” TEX. CODE CRIM. PROC. art. 42A.751(i)

(emphasis added). The present iteration of the statute is not the first of

its kind.

A. Before 1977

Before 1977, this Court had concluded that the State had the

burden to prove both a probationer’s ability to pay and his intentional

failure to do so whenever it alleged nonpayment as at least one basis for

revocation and no other ground for revocation was sufficiently

4 In its first issue, the State asked whether probationers must object

during revocation proceedings when the State fails to meet its burden under

the failure-to-pay statute. We did not grant review on that issue.

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established. See Herrington v. State, 534 S.W.2d 331 (Tex. Crim. App.

1976) (concluding that the trial court abused its discretion in revoking

probation when the State did not prove intentional failure to pay, and it

also failed sufficiently to establish four other grounds relied on for

revocation). 5 In 1977, however, the 65th Legislature passed Article

42.12, Section 8(c), which shifted the burden of proof on the issue of

ability to pay from the State to the probationer, making inability to pay,

by statute, an affirmative defense. The statute did not speak, however,

to the issue of intentionality.

B. The 1977 Statute[s]

Curiously, the 65th Legislature enacted two versions of Section

8(c), which were nearly, but not quite, identical. The first version of

Section 8(c), proposed in Senate Bill 32 (S.B. 32), applied in probation

revocation hearings in which “it is alleged only that the probationer . . .

failed to pay probation fees, court costs, or reparations.” S.B. 32, 65th

Leg., § 1 (1977) (emphasis added). The original version of S.B. 32 had

not included the adverb “only” to modify “alleged,” but the Senate

amended the statute to include the adverb after the bill initially failed

to pass in the House. Id. The second version of Section 8(c), proposed in

Senate Bill 61 (S.B. 61), did not include the word “only” to modify

“alleged,” but it added “compensation paid to appointed counsel” as an

5 See also Gipson v. State, 383 S.W.3d 152, 158 (Tex. Crim. App. 2012)

(“Prior to the 1977 codification of the law pertaining to revocation proceedings

involving failure to make required payments, this Court, in reviewing a

sufficiency challenge to revocation based on failure to pay, routinely held that

the evidence must show (1) that a defendant was able to pay and (2) that he

had acted intentionally.”).

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additional category of payment for which a probationer must establish

an inability to pay. 6 S.B. 61, 65th Leg., § 4 (1977).

Both versions of Section 8(c) shifted the burden of proof with

respect to the probationer’s ability to pay from the State to the

probationer himself. But S.B. 32 seemed to do so only when the only

allegation that the State pursued at the revocation hearing was one of

the enumerated nonpayment allegations. In contrast, S.B. 61 seemed to

shift the burden to the probationer regardless of whether the State

alleged grounds for revocation beyond mere nonpayment of one of the

enumerated costs or fees. Both duplicate subsections passed, and they

were made effective on the same date, and they co-existed on the books

of our statutory law for four years.

C. The 1981 Amendment

6 The two subsections in § 8(c) read:

(S.B. 32) “(c) In a probation revocation hearing at which it is alleged

only that the probationer violated the conditions of probation by failing

to pay probation fees, court costs, restitution, or reparations, the

inability of the probationer to pay as ordered by the court is an

affirmative defense to revocation, which the probationer must prove by

a preponderance of the evidence.”

Acts 1977, 65th Leg., ch. 342, § 2, p. 909, eff. Aug. 29, 1977 (emphasis added).

(S.B. 61) “(c) In a probation revocation hearing at which it is alleged

that the probationer violated the conditions of probation by failing to

pay compensation paid to appointed counsel, probation fees, court costs,

restitution, or reparations, the inability of the probationer to pay as

ordered by the court is an affirmative defense to revocation, which the

probationer must prove by a preponderance of the evidence.”

Acts 1977, 65th Leg., ch. 388, § 2, p. 1058, eff. Aug. 29, 1977 (emphasis added).

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It was not until 1981 that the Legislature acted to remedy this

duplication. It repealed what had started out as S.B. 61 and amended

what had been S.B. 32, creating a new version of Article 42.12, Section

8(c), which effectively blended the duplicate statutes:

(c) In a probation revocation hearing at which it is

alleged only that the probationer violated the conditions of

probation by failing to pay compensation paid to appointed

counsel, probation fees, court costs, restitution, or reparations,

the inability of the probationer to pay as ordered by the court is

an affirmative defense to revocation, which the probationer must

prove by a preponderance of the evidence.

Acts 1981, 67th Leg., ch. 538, §§ 1 & 2, p. 2246, eff. June 12, 1981

(emphasis added). It should be noted that the adverb “only,” modifying

“alleged,” was retained in the 1981 amendment, while the version of the

statute that did not include “only” was expressly repealed. Of course,

this legislative fix occurred more than five years before Stanfield.

D. Stanfield

In October of 1986, this Court was called upon for the first time,

in Stanfield, to reconcile the 1977 duplicate versions of Section 8(c) with

respect to the scope of the statute’s burden-shifting applicability. The

Court was required to construe the competing 1977 versions of Section

8(c) (instead of the blended version in the 1981 amendment) at this time

because Stanfield’s own revocation hearing had occurred before the 1981

amendment’s effective date. See Stanfield, 718 S.W.2d at 735 n.1; id. at

740 (Davis, J., dissenting) (“The probation revocation hearing in the

instant case was held on January 16, 1981, prior to the effective date of

the 1981 new version of [Section] 8(c) which did away with the dual

enactment of 1977.”). Thus, the original 1977 incarnations of Section 8(c)

BRIMZY – 10

were already long defunct by the time this Court came to reconcile them

in its opinion in Stanfield.

In Stanfield, the State had alleged two grounds for revocation of

the probationer’s regular probation: (1) commission of a subsequent

offense and (2) failure to pay his probation fee. Id. at 735. The trial court

found that Stanfield committed both violations. Stanfield v. State, 638

S.W.2d 127, 128 (Tex. App.—Fort Worth 1984). On appeal, Stanfield

argued that the evidence was insufficient to support the revocation. Id.

On original submission, the court of appeals agreed. Id. at 129. It held

that the evidence failed to establish commission of the subsequent

offense. Id.

With respect to the nonpayment ground for revocation, the court

of appeals first observed that, even after the 1977 addition of Section

8(c) to Article 42.12, the State was still required to prove both Stanfield’s

inability to pay and that his failure to pay was intentional. Id. It

apparently came to this conclusion by considering only the S.B. 32

version of Section 8(c)—the one with the adverb “only” modifying

“alleged”—and concluding that, because the State had alleged a ground

for revocation beyond nonpayment, the burden-shifting to the

probationer on the issue of ability to pay, embodied in Section 8(c), did

not apply. Id. at 128−29; Stanfield, 718 S.W.2d at 735. Ultimately, the

court of appeals concluded that the State did satisfy (what it believed to

be) its burden to prove Stanfield’s ability to pay, but that it nevertheless

failed to prove intentionality. Stanfield, 638 S.W.2d at 129. On that

basis, the court of appeals reversed the revocation order and remanded

the cause. Id.

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In a motion for rehearing in the court of appeals, the State pointed

out that the 1977 Legislature had in fact passed two versions of Section

8(c), only one of which contained the adverb “only.” Id. In its opinion on

rehearing, however, the court of appeals did not bother to try to

harmonize the two competing versions of Section 8(c). Instead, it

concluded that, regardless of the scope of Section 8(c) with respect to

shifting the burden of proof as to the probationer’s ability to pay, it did

nothing to change the burden remaining on the State to prove that the

nonpayment was intentional. Id at 130 (op. on reh’g). And on that basis,

it persisted in its conclusion that the State’s evidence had been deficient

in that respect. Id.

On discretionary review, this Court reversed the court of appeals’

judgment. Stanfield, 718 S.W.2d at 739. But the reversal did not

ultimately turn on the Court’s observations with respect to the

significance of the adverb “only” in S.B. 32. It is true that this Court’s

Stanfield opinion suggested that the word’s meaning was subject to an

interpretation that would avoid what it considered to be an “anomalous”

result. 7 Id. at 736−37. The Court seemed to regard a construction of the

words “alleged only” that would result in the statute applying only when

7 In a footnote, the Court in Stanfield suggested that usage of the adverb

“only,” as well as its placement in a sentence, can result in ambiguity, and that

it “also has several meanings, including ‘at the very least.’” 718 S.W.2d at 736

n.3. Later in its opinion, the Court further suggested that “we avoid the

anomalous result” it alluded to earlier in its opinion (but never adequately

described) by reading “only” not in its natural sense as used in Section 8(c), but

in the alternative sense of “at the very least.” Id. at 737. The Court’s obiter

dicta might have proved more “persuasive,” see note 10, post, had it better

explained what it regarded as the anomaly of reading “alleged only” in its

natural sense in the context of the statute as a whole.

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a failure to pay was the only ground alleged to be, at least “quirky,” if

not downright absurd. Id. For these reasons, the Court suggested that

the phrase “alleged only” in the statute should not be given its most

natural reading. But the Court’s suggestion was no more than obiter

dictum, because the Court would unquestionably have reached the same

bottom line in the case even without it. 8

This is so because this Court ultimately agreed with the court of

appeals’ conclusion, in its opinion on rehearing, that Section 8(c) simply

did not speak to the burden of proof with regard to the intentionality of

a probationer’s failure to pay. Both the court of appeals and this Court

concluded that the State’s evidence was sufficient to establish that

Stanfield had the ability to pay his probation fees. See id. at 737

(“[I]nability to pay was not an issue in the revocation hearing.”); 638

S.W.2d at 129 (“The State proved ability, but did not prove intent, and

[on that basis] we sustain [Stanfield’s] first ground of error.”). Thus, it

did not matter what this Court had to say about the proper allocation of

the burden under the statute with respect to ability to pay. The Court

ultimately reversed the court of appeals’ judgment because it erred to

conclude that the State had not adequately proven Stanfield’s

8 See BLACK’S LAW DICTIONARY (12th ed. 2024), at 570 (defining obiter

dictum as “[a] judicial comment made while delivering a judicial opinion, but

one that is unnecessary to the decision in the case and therefore not

precedential (although it may be considered persuasive)”). Nothing about this

Court’s discussion in Stanfield about what it perceived to be the legislative

intent behind the use of the adverb “only” in S.B. 32’s version of Section 8(c)

was necessary to its wholly dispositive conclusion that, in any event,

Stanfield’s ability to pay was never in issue and the State had satisfied its

common law burden to prove that he had intentionally failed to pay his

probation fee. See text, post.

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intentional nonpayment, as both courts believed was still required. It

was on that basis—having nothing to do with the proper construction of

Section 8(c)—that this Court reversed the court of appeals and affirmed

the trial court’s order revoking probation.

In any event, Stanfield had not yet been decided in 1981, when

the Legislature amended Section 8(c) of Article 42.12 to unify the two

competing 1977 versions of that provision. When it chose to retain the

adverb “only” in the 1981 amendment, the Legislature could not possibly

have predicted Stanfield’s peculiar obiter dicta, and it could not have

had it in mind when retaining the word “only” in the statute while

enacting its legislative fix.

E. Subsequent Amendments in 2007 and 2015

Later, the Legislature once again included the adverb “only” to

modify “alleged,” in a 2007 amendment to the (by then renumbered)

failure-to-pay statute. Under the 2007 amendment, now-Article 42.12,

Section 21(c), was made to read:

In a community supervision hearing at which it is alleged

only that the defendant violated the conditions of

community supervision by failing to pay compensation paid

to appointed counsel, community supervision fees, or court

costs, the state must prove by a preponderance of the

evidence that the defendant was able to pay and did not pay.

Acts 2007, 80th Leg., ch. 604, §1, p. 1160, eff. Sept. 1, 2007 (amending

then-TEX. CODE CRIM. PROC. art. 42.12, § 21(c)) (emphasis added). 9 In

9 Between 1981 and 2007, the ability-to-pay statute was shuffled from

one section of Article 42.12 to another, without substantive amendment, other

than substituting the language of “community supervision” for that of

“probation.” See Acts 1989, 71st Leg., ch. 785, § 417, p. 3517, eff. Sept. 1, 1989

(recodifying Section 8(c) as Section 24(b) of Article 42.12); Acts 1993, 73rd Leg.,

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contrast to the 1981 version, the 2007 amendment thus flipped the

burden of proof regarding ability to pay back to the State. Moreover, for

the first time, the provision included within the burden (now re-assigned

to the State) the obligation to prove, not just that the probationer had

the ability to pay, but that he in fact “did not pay[.]” 10 And finally, the

list of enumerated payments to which the provision applied no longer

included “restitution” and “reparations[.]”

In 2015, the Legislature again recodified the failure-to-pay

statute, moving it from Article 42.12, Section 21(c), into Article

42A.751(i), where it currently resides. Acts 2015, 84th Leg., ch. 770, §

1.01, p. 2362, eff. Jan. 1, 2017. No substantive changes were enacted at

ch. 900, § 4.01, p. 3740, eff. Sept. 1, 1993 (recodifying Section 24(b) of Article

42.12 as Section 21(c) and changing the nomenclature of “probation” to

“community supervision”).

10 It might be argued that what was thought to be the former common

law requirement that the State prove that the probationer’s failure to pay was

intentional has thus now been expressly incorporated into the statute. But this

Court seems to have concluded otherwise, in 2012. See Gipson v. State, 383

S.W.3d 152, 159 n.3 (Tex. Crim. App. 2012) (“[W]e conclude that the 2007

amendment dispensed with [the common-law] requirement [that the State

prove intentionality] with respect to the payments listed in the statute

because, by its plain language, the ability-to-pay statute requires only that the

State demonstrate . . . that the defendant was able to pay and did not.”).

Nonetheless, prior to the 2007 amendment, it was thought that the common

law required the State to prove intentionality notwithstanding the statute. See

Stanfield, 718 S.W.2d at 738 (“We conclude the State still has the burden of

proving an alleged failure to pay fees, costs and the like was intentional.”).

Indeed, it was Stanfield’s conclusion with respect to intentionality that

essentially rendered its observations about the meaning of “alleged only” in the

statute pure obiter dicta. In any event, we need not revisit the question of the

burden (if any) with respect to intentionality today.

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that time. 11 Thus, since 1981, the failure-to-pay statute has expressly

applied “[i]n a [probation/community supervision] revocation hearing at

which it is alleged only that” certain required payments were not made.

(Emphasis added). The major changes since the 1981 amendment

include re-assigning the burden of proof on ability (and, perhaps, also

now, intentionality 12) to the State, and the deletion of some of the

original enumerated costs, namely, “restitution” and “reparations[.]”

III. THE COURTS OF APPEALS ARE SPLIT

The courts of appeals are split into two camps with respect to the

meaning of the word “only” as it currently appears in Article

42A.751(i). 13 Courts of appeals in the first camp, which includes the

Fourteenth Court of Appeals in this case, have read the failure-to-pay

statute consistently with Stanfield’s construction. See Brimzy, 2024 WL

11 Article 42A.751(i) itself was amended in 2017, but that amendment

is not relevant to the question of what “alleged only” means in the context of

the provision. The 2017 amendment removed the phrase “compensation paid

to appointed counsel” and replaced it with the phrase “and by failing to pay the

costs of legal services as described by Article 42A.301(11)[.]” Acts 2017, 85th

Leg., ch. 324, § 23.014(a), p. 953, eff. Sept 1, 2017; see note 1, ante.

12 See note 10, ante.

13 The first camp includes the Second, Thirteenth, and Fourteenth

Courts of Appeals. See Brown v. State, 354 S.W.3d 518, 520 n.3 (Tex. App.—

Fort Worth 2011, pet. ref’d); Scales v. State, 658 S.W.3d 366, 372−73 (Tex.

App.—Corpus Christi 2022, no pet.); Brimzy v. State, 2024 WL 1313406, at *1.

The second camp includes the Seventh, Ninth, and Twelfth Courts of Appeals.

See Johnson v. State, No. 07-19-00031-CR, 2019 WL 2872292, at *4 (Tex.

App.—Amarillo July 3, 2019) (mem. op., not designated for publication); Bush

v. State, Nos. 09-18-00414-CR & 09-18-00424-CR, 2019 WL 2607592, at *2

(Tex. App.—Beaumont June 26, 2019) (mem. op., not designated for

publication); Rushing v. State, No. 12-21-00052-CR, 2022 WL 868715 (Tex.

App.—Tyler Mar. 23, 2022, no pet.) (mem. op., not designated for publication).

BRIMZY – 16

1313406 at *5. That is to say, they have read “only” essentially to mean

“at the very least.” They have therefore applied the failure-to-pay

statute to all cases in which nonpayment is at least one of the grounds

alleged and pursued for revocation. Id. at *4; Scales v. State, 658 S.W.3d

366, 372–73 (Tex. App.—Corpus Christi 2022, no pet.).

These courts of appeals have concluded that a literal reading of

the failure-to-pay statute, which would apply only when nonpayment is

the sole ground alleged and pursued by the State, results in an absurdity

that the Legislature could not possibly have intended. Brimzy, 2024 WL

1313406 at *4; Scales, 658 S.W.3d at 372–73. The absurd result, in those

courts of appeals’ opinion, is allowing the State to allege frivolous

grounds for revocation in addition to failure to pay, just to avoid the

additional burden that the failure-to-pay statute would impose. 14 Brown

v. State, S.W.3d 518, 520 n.3 (Tex. App.—Fort Worth 2011, pet. ref’d)

(citing Stanfield, 718 S.W.2d at 736).

Additionally, these courts of appeals relied heavily upon their

own perception of the legislative history and what they believed to be

the legislative intent behind the law. See Brimzy, 2024 WL 1313406 at

*4; Scales, 658 S.W.3d at 372–73. These courts of appeals have insisted

that the Legislature was aware of Stanfield’s construction of the word

“only” when it drafted the 2007 amendment to the statute that re-

assigned the burden of proof to the State. Brimzy, 2024 WL 1313406 at

*5. Therefore, they have concluded, the Legislature must have intended

to use the Stanfield meaning of “only” when crafting the new statute. Id.

14 But see TEX. R. PROF. COND. Rule 3.01 (“A lawyer shall not bring or

defend a proceeding, or assert or controvert an issue therein, unless the lawyer

reasonably believes that there is a basis for doing so that is not frivolous.”).

BRIMZY – 17

What is more, these courts of appeals have bolstered their position by

arguing that Stanfield’s definition of the word “only” is consistent with

the due process requirements announced in Bearden, and they believe

the legislative history shows that the 2007 amendment was passed to

accommodate that very due process decision by the United States

Supreme Court. Id.

Some other Texas courts of appeals have read the failure-to-pay

statute consistently with what they perceive to be its plain language.

See, e.g., Rushing v. State, No. 12-21-00052-CR, 2022 WL 868715 (Tex.

App.—Tyler Mar. 23, 2022, no pet.); Johnson v. State, No. 07-19-00031-

CR, 2019 WL 2872292, at *4 (Tex. App.—Amarillo July 3, 2019) (mem.

op., not designated for publication). Rushing, for example, distinguished

Stanfield’s construction of “only” and relied on the widely accepted

meaning of the word as a limiting adverb. See id. at *3. Thus, the court

of appeals concluded there that, the failure-to-pay statute applies

exclusively when the State’s sole allegation is nonpayment. Rushing

refused to “presume that the Legislature unintentionally included the

word ‘only’ or intended that it be ignored.” Id. (citing Wagner v. State,

539 S.W.3d 298, 306 (Tex. Crim. App. 2018)). Finally, these courts of

appeals seem to have rejected the proposition that to apply the failure-

to-pay statute in this more restrictive way leads to absurd results.

Rushing, 2022 WL 868715 at *3.

With this statutory history and description of the competing

courts of appeals’ viewpoints in mind, we now address the proper scope

of Article 42A.751(i).

BRIMZY – 18

IV. ANALYSIS

A. Statutory Construction

In construing a statute, a reviewing court begins with “its literal

text[.]” Chiarini v. State, 442 S.W.3d 318, 320 (Tex. Crim. App. 2014). If

the meaning of a statutory word is plain, when read in context and in

accordance with the rules of grammar and common usage, then that is

the meaning the reviewing court should attribute to the Legislature.

Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). The

reviewing court may not deviate from the literal text unless “the text

does not bear a plain contextual meaning,” or “the text’s unambiguous

meaning would lead to” absurd results the Legislature could not have

intended. Timmins v. State, 601 S.W.3d 345, 348 (Tex. Crim. App. 2020).

B. Is the Meaning Plain?

So, is the meaning of the word “only”—as an adverb modifying

“alleged” in Article 42A.751(i)—ambiguous, or is its import to be

regarded as plain when read in the context of the statutory scheme,

according to the rules of grammar and common usage, and in light of the

statute’s history of amendments? The Court has said that a statute is

ambiguous if reasonably informed persons would understand it to be

susceptible to two or more different interpretations. State v. Green, 682

S.W.3d 253, 264 (Tex. Crim. App. 2024). Moreover, in considering an

amended statute, the Court has also said that reviewing courts typically

consider the amended statutory language as if it had originally been

enacted in its amended form. Id. at 266.

The parties in this case do not seriously dispute that the meaning

of the word “only” in Article 42A.751(i) is plain enough—at least when

BRIMZY – 19

read in context and as if the statute had been originally enacted in what

is essentially its current form, in 2007. 15 The word “only” operates in the

context of the statute as an adverb, directly modifying the transitive

verb “alleged.” The direct object of that transitive verb—the thing that

completes its meaning—is the clause that comes directly after the word

“that” in the sentence, namely: “the defendant violated the conditions of

community supervision by failing to pay” community supervision fees,

court costs, or the cost of legal services. TEX. CODE CRIM. PROC. art.

42A.751(i). The most natural meaning to attribute to the word “only” in

this context is the primary definition (in its adverbial form) in the

dictionaries we have consulted; to wit: “as just the one simple thing and

nothing more or different[,]” or “[w]ithout anything or anyone else:

ALONE[.]” 16 According to this definition, the last clause of the sentence,

15Besides being simply recodified in Chapter 42A in 2015, with no

substantive change, Article 42A.751(i) has been amended again only once, in

2017. See note 13, ante. As we have already observed, nothing about the 2017

amendment could be read as affecting the meaning of “alleged only” as it

appears in the context of the provision as a whole.

16 See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE

ENGLISH LANGUAGE UNABRIDGED, at 1577 (2002), and WEBSTER’S II NEW

COLLEGIATE DICTIONARY, at 765 (1999), respectively. Both dictionaries also

provide, as alternatives for the adverbial form of “only,” the definition “at the

very least[.]” Id. But we note that in the illustrations given of the use of the

word “only” in this sense, the adverb precedes the transitive verb instead of

following it, as in Article 42A.751(i). See WEBSTER’S II, at 765 (“I only ask that

justice be done.”); see also THE AMERICAN HERITAGE COLLEGE DICTIONARY, at

954 (3d ed. 2000) (giving as an example of “at the very least”: “if you would only

come home.”). It seems highly doubtful, even in 1977—notwithstanding the

obiter dictum to the contrary in Stanfield—that the Legislature meant for

“only” to be understood in this less-common sense when it deliberately added

the word “only” in S.B. 32 (causing it to be enacted after S.B. 61) and then later

expressly repealed the version of Section 8(c) that did not include “only” while

deliberately amending the version that did. See note 8, ante. It would be

BRIMZY – 20

which assigns a burden to the State, applies only “[i]n a revocation

hearing at which it is alleged” that a failure to pay the enumerated fees,

“and nothing more or different[,]” has occurred. By this plainly evident

understanding of the statute, any time the State proceeds at the

revocation hearing upon a pleading that contains allegations beyond the

“simple” claim of nonpayment of one of the enumerated fees, the

statutory condition is not triggered, and the State has no burden (at

least none imposed by the statute) to prove that the probationer could

have paid but did not.

C. The Prior-Construction Canon

The court of appeals declined to follow this most natural reading

of the statute, however, because of this Court’s “guidance in Stanfield,”

and “the legislative history of amendments to the statute[.]” Brimzy,

2024 WL 1313406, at *4, *5. Albeit without expressly saying so, the

court of appeals thus seems to have relied on the prior-construction

canon. In its purest form, that canon provides: “If a word or phrase [in a

statute] has been authoritatively interpreted by the highest court in a

jurisdiction, . . . a later version of that [statute] perpetuating the

wording is presumed to carry forward that interpretation.” Antonin

Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS, at 322 (2012). In Appellant’s reply brief, she now specifically

exceedingly odd to think the Legislature would go to such lengths to retain a

word in a statute that it did not intend to carry its most natural meaning. Were

we to construe current Article 42A.751(i) in accordance with the obiter dictum

in Stanfield, it would effectively read the word “only” out of the statute. But in

construing a statute, a reviewing court must presume that every word therein

has a purpose that should be given effect if reasonably possible. Wagner, 539

S.W.3d 298, 306 (Tex. Crim. App. 2018); TEX. GOV’T CODE § 311.021(2).

BRIMZY – 21

invokes the prior-construction canon to argue that this Court’s

interpretation of the adverb “only” in Stanfield should control our

construction of the phrase “alleged only” in current Article 42A.751(i).

We disagree. This Court has explained that, “when there has been

no settled interpretation of the statutory phrase about which the

[L]egislature could have been made aware, the [prior-construction]

presumption does not apply.” Watkins v. State, 619 S.W.3d 265, 281

(Tex. Crim. App. 2021); see also Scalia & Garner, at 326 (“[W]e

emphasize that [the prior-construction canon] applies only to presumed

legislative approval of prior judicial . . . interpretations in statutes

adopted after those interpretations.”). Because, as we have shown,

Stanfield’s construction of “only” was pure dicta, it did not constitute a

settled interpretation of the statutory phrase. “Moreover, the general

rule that a later statute will be interpreted in accordance with a judicial

construction of a prior statute does not apply where the later statute is

unambiguous.” 82 CJS Statutes § 466, at 651 (2022). Given these

qualifications to the prior-construction canon, we reject the court of

appeals’ construction and Appellant’s reliance on it here, for the

following reasons.

Principally, as we have explained, the text of current Article

42A.751(i) is unambiguous with respect to how the adverb “only” should

operate within it. That being so, we will not invoke the prior-

construction canon to distort it. In any event, even if we believed it would

be appropriate to invoke the prior-construction canon despite the lack of

ambiguity, it would not avail Appellant at all given the statutory history

as we have outlined it above. We reach this conclusion for two reasons.

BRIMZY – 22

First, as we have shown, the Court’s remarks in Stanfield—with

respect to what it regarded as the preferred construction of “only” in one

of the competing versions (S.B. 32) of former Article 42.12, Section 8(c)—

were pure obiter dicta, meaning that they were utterly unnecessary to

the Court’s disposition of the case. As such, those observations do not

provide an authoritative prior construction that would serve to bind us

now. They certainly do not present a compelling reason to ignore the

otherwise plain import of the word “only” in the current iteration of the

statute.

The second reason we decline to invoke the prior-construction

canon to alter the plain meaning of Article 42A.751(i) is because of the

timing of the Court’s decision in Stanfield. In applying the prior-

construction canon, the court of appeals appears to have focused its

attention on the 2007 amendment to then-Article 42.12, Section 21(c),

wherein the Legislature shifted the burden of proof on the issue of ability

to pay from the probationer back to the State. Brimzy, 2024 WL

1313406, at *4. Because that amendment came after Stanfield was

decided, the court of appeals was able to presume that the Legislature

had before it a construction of the word “only” that it could fall back on

as the established meaning for purposes of subsequent enactments.

But the court of appeals skipped a step—it failed to account for

the 1981 amendment. There, the Legislature united the two competing

versions of former Article 42.12, Section 8(c), as it had been passed in

1977. In doing so, the Legislature quite deliberately retained the adverb

“only” as it had first appeared in S.B. 32—and it did so more than five

years before Stanfield was decided. Under these circumstances, we

BRIMZY – 23

cannot presume that the 1981 legislative fix was meant to incorporate

Stanfield’s peculiar construction of “only,” since it did not yet exist at the

time of that amendment.

We likewise refuse to presume, as the court of appeals did, that

in passing a subsequent amendment, in 2007, the Legislature tacitly

chose Stanfield’s peculiar construction of “only” over the plain-language

construction it had all but certainly adopted in its 1981 unification of

1977’s competing Section 8(c)’s. For this reason, as well, we do not

regard application of the prior-construction canon as a reliable basis to

justify deviating from the otherwise clear import of the language of

current Article 42A.751(i). “Only,” as used in the statute means “only,”

as understood in common parlance, not “at the very least.”

D. Is the Result Absurd?

Absurd results are those “that the Legislature could not possibly

have intended[.]” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.

1991). The absurdity doctrine provides only a narrow exception to the

general rule to effectuate plain language because reviewing courts must

presume that the Legislature does not act in absurd ways. Id. Moreover,

judicial disagreement with a legislative policy decision does not equate

with an absurd result. Cockrell v. State, ___ S.W.3d ___, PD-0760-24,

2025 WL 2417047, at *4 (Tex. Crim. App. Aug. 20, 2025). Reviewing

courts are not at liberty to “construe a statute in a manner that

substitutes what [they] believe is right or fair for what the Legislature

has written.” Ex parte Kibler, 664 S.W.3d 220, 233 (Tex. Crim. App.

2022). Simply put, reviewing courts do not disturb policy decisions of the

Legislature. Id.

BRIMZY – 24

So, would it be patently absurd for the Legislature to impose a

burden of proof on the State “in a revocation hearing”—but only when

the State has “alleged only”—that is to say, alleged “nothing more or

different” than—nonpayment? 17 Guided by Stanfield, the court of

appeals believed so—if only because it believed, like the Stanfield Court,

that the failure to impose the burden under broader circumstances

would encourage the State to proceed in bad faith, alleging other claims

in support of revocation/adjudication despite knowing it had an

insufficient basis to prove those claims. Brimzy, 2024 WL 1313406, at

*5; see also Scales, 658 S.W.3d at 372 (concluding that application of

Article 42A.751(i)’s plain meaning would be “absurd” because it would

“reward[] the State for alleging additional violations that the trial court

ultimately found unconvincing”).

But here again, we conclude that Stanfield does not control.

Whatever absurdity Stanfield may have perceived in construing “only”

in its most natural sense in the context of a statute assigning the burden

of proof on the issue of ability to pay to the probationer does not

necessarily apply now that the statute re-assigns the burden to the

State. In restoring the burden of proof to the State in 2007, the

Legislature may well have made a deliberate policy choice to limit its

application to cases in which the State opts to proceed only on an

allegation of nonpayment, as a way of encouraging the State to rely upon

grounds more substantial than mere nonpayment of fees or costs,

whenever possible, to adjudicate guilt or revoke community supervision.

17 TEX. CODE CRIM. PROC. art. 42A.751(i); see WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY, at 1577 (“as just the one simple thing and

nothing more or different”).

BRIMZY – 25

“[T]he fundamental fairness required by the Fourteenth

Amendment” Due Process Clause, the United States Supreme Court has

said, prohibits a trial court from revoking a probationer’s community

supervision and then imprisoning him for failure to pay probationary

assessments if he “has made bona fide efforts to pay.” Bearden, 461 U.S.

at 672. To protect a probationer’s due process right, Bearden imposed a

duty on the trial court to “inquire into the reasons for the failure to pay.”

Id. But Bearden said nothing about whether or how to assign a burden

of proof on the issue of the probationer’s ability to pay, instead assigning

a due process obligation on the trial court sua sponte to inquire. Id.

Due process does not obligate state legislatures to pass statutes

that assign a burden of proof to the State. That the Texas Legislature

has done so means it has provided greater protection to probationers

than due process requires. But the Legislature is free, consistent with

due process, to circumscribe the application of that greater protection,

for policy reasons. Cf. Rushing v. State, 85 S.W.3d 283, 285−86 (Tex.

Crim. App. 2002) (when the Legislature confers rights by statute that

exceed the constitutional minimum, it may limit the application of those

statutorily conferred rights); Moon, 667 S.W.3d at 804 n.11 (same).

It would also not be inconsistent with Bearden for the Legislature

to impose a burden on the State only under these narrow circumstances.

The Legislature might have decided that such a heightened burden was

most appropriate when a probationer’s ability to pay would necessarily

prove to be the decisive issue in a hearing to revoke or adjudicate guilt—

namely, when that is the only issue upon which the State’s pleading

purports to proceed at the hearing itself. And, by limiting the greater

BRIMZY – 26

protection of an assigned burden on the State to this circumstance, the

Legislature might have sought to encourage the State, whenever

possible, to proceed to revoke or adjudicate on grounds beyond the

failure to pay, since that ground, when pursued alone, is fraught with

due process complications. It is not innately absurd to think that the

Legislature would choose to add more protection than what due process

requires—but only under these limited circumstances.

What is more, it does not necessarily demonstrate an absurd

result that a prosecutor might try to thwart the intended operation of

the statute, as plainly construed, by alleging a patently baseless ground

for revocation/adjudication simply to avoid assuming the statutory

burden. A prosecutor is ethically bound to refrain from bringing such

frivolous claims. See TEX. R. PROF. COND. Rule 3.01 (“A lawyer shall not

bring or defend a proceeding, or assert or controvert an issue therein,

unless the lawyer reasonably believes that there is a basis for doing so

that is not frivolous.”). Prosecutors may act in many ways, intentionally

or not, that could subvert criminal proceedings, but “[t]he primary

safeguard against abuses is . . . the ethical responsibility of the

prosecutor.” United States v. Ash, 413 U.S. 300, 320 (1973). Both the

court of appeals and Appellant would have us believe that prosecutors—

and the State generally—would jump at the chance to be deliberately

manipulative in this way. But the Legislature is entitled to enact law

under the assumption that a prosecutor’s “primary duty” to “see that

justice is done” will abide. See Grey v. State, 298 S.W.3d 644, 651 (Tex.

Crim. App. 2009) (citing TEX. CODE CRIM. PROC. art. 2.01). And the

Legislature might well have reasoned that justice is better served in any

BRIMZY – 27

given revocation or adjudication hearing if colorable claims of probation

violations—beyond those of mere nonpayment of fees or costs—are in

play.

Finally, the Legislature would not act “irrationally” to enact such

a circumscribed statute with the understanding that, even if ethical

safeguards were to fail, “review remains available under due process

standards.” 18 Ash, 413 U.S. at 320. If a prosecutor were to allege purely

frivolous claims in a revocation/adjudication motion merely to avoid the

statutory burden, then the trial court would presumably revoke, if at all,

based on nonpayment alone. Under those circumstances, Bearden’s due

process protections would be triggered, requiring the trial court to

determine that the probationer’s nonpayment was willful—i.e., that the

probationer could pay but did not—before imposing imprisonment on

the probationer. Id. at 667. 19 It is not absurd to suppose that the

18 See Brimzy, 2024 WL 1313406, at *4 (quoting this Court’s

characterization, in Stanfield, of a plain-view construction of “alleged only” in

addressing the competing versions of former Article 42.12, Section 8(c), as

“irrational”).

19 To be clear, we are not here addressing Appellant’s due process claim

that she raised in the court of appeals. That court concluded she failed to

properly preserve that claim. See Brimzy, 2024 WL 1313406 at *2. Rather, our

discussion of Bearden is intended to emphasize that a plain-view reading of the

failure-to-pay statute does not render absurd results, since a prosecutor’s

impulse to manipulate will be held in check through ethical obligations, and

due process principles will still serve to protect the interests of the probationer

in any event. None of this is to say that Appellant could not eventually litigate

the gist of her due process claim under some other constitutional guise, such

as the ineffective assistance of counsel, in a post-conviction application for writ

of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.09.

BRIMZY – 28

Legislature might have passed Article 42A.751(i)’s limited burden of

proof while mindful of this due process failsafe. 20

We conclude that Article 42A.751(i), the failure-to-pay statute, is

not absurd when read according to its plain dictates. The Legislature

could rationally have intended to impose a higher burden on the State

in limited situations, and because ethical and due process safeguards

protect a probationer in the unlikely event that a prosecutor should

scheme to avoid his burden under the statute. We will not condone

deviating from the plain import of the statute on account of absurdity

when no actual absurdity is discernable.

V. CONCLUSION

Here, the motion to adjudicate alleged grounds in addition to

Appellant’s nonpayment of supervision fees; indeed, the State pursued

those additional grounds in the revocation/adjudication hearing. Under

these circumstances, Article 42A.751(i) does not assign an additional

burden of proof to the State—even where, as here, the trial court

ultimately ordered adjudication based on the nonpayment ground alone.

The court of appeals erred to conclude that the trial court’s order was

invalid on the ground that the State failed to satisfy a statutory burden

20 The absurdity doctrine does not justify judicial rejection of outcomes

that are merely “odd” or (in Stanfield’s description, “anomalous”); instead, it is

“meant to correct obviously unintended dispositions, not to revise purposeful

dispositions that, in light of other provisions of the applicable code, make little

if any sense.” Scalia & Garner, at 237, 239. Accordingly, even if we agreed that

applying the plain meaning of “alleged only” in Article 42A.751(i) would result

in “anomalous” consequences, Stanfield, 718 S.W.2d at 737, that would not by

itself justify our application of the absurdity doctrine to avoid them. Instead,

another legislative fix would be required. Getts v. State, 155 S.W.3d 153, 158

(Tex. Crim. App. 2005).

BRIMZY – 29

to show that Appellant was able to, but did not, pay her community-

supervision fees. The State acquired no such burden in this case.

The judgment of the court of appeals is reversed and the trial

court’s order to adjudicate is reinstated.

DELIVERED: October 30, 2025

PUBLISH