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Instructions and Information Regarding Reconsideration of a Defendants (Office of Court Administration)

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OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
1
Instructions and Information Regarding Reconsideration of a
Defendant’s Ability to Pay and the Standardized Form to
Request Reconsideration
If at any time while you are on community supervision your
ability to pay any fine, fee, program cost, or other payment
ordered by the court, other than restitution, changes and
you cannot afford to pay, you have the right to request
that the court review your payments and consider changing
or waiving your payments. You can use this form to make
a request for a change in your payments. You cannot use
this form to request a change in restitution payments.
Ability to Pay
If the court places a defendant on community supervision, including deferred
adjudication community supervision, the law requires the court to consider the
defendant’s ability to pay before ordering the defendant to make any payment,
excluding restitution.
(See Code of Criminal Procedure Art. 42A.655(a) and (c))
What is Community Supervision?
"Community supervision" includes probation and deferred adjudication community
supervision.
(See Code of Criminal Procedure Art. 42A.001(1))
Reconsideration of Defendant’s Ability to Pay
A defendant’s ability to pay may change during the period of community
supervision. House Bill No. 385, an enactment of the 87
th
Legislature, requires the
Office of Court Administration of the Texas Judicial System (OCA) to adopt not
later than January 1, 2022 a standardized form that a defendant can use to
request reconsideration of the defendant’s ability to pay if his or her financial
circumstances change. The included form will allow a defendant to request
reconsideration of his or her ability to pay.
A defendant may not request
reconsideration of his or her ability to pay restitution
.
(See Code of Criminal Procedure Art. 42A.655(h))
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
2
When and How Can a Defendant Request Reconsideration?
The defendant may request reconsideration any time during the period of
community supervision by completing and filing OCA’s standardized form with the
clerk of the court.
(See Code of Criminal Procedure Art. 42A.655(e))
Are There Any Limits on How Many Times the Defendant Can Request
Reconsideration?
Yes
The defendant can make only 1 request within a 6-month period, unless there is
a substantial and compelling reason for making an additional request during that
time period.
(See Code of Criminal Procedure Art. 42A.655(e))
Can the Court Reconsider The Payment of Restitution?
The court does not have to consider or reconsider a defendant’s ability to pay
restitution.
(See Code of Criminal Procedure Art. 42A.655(c))
What is the Supervision Officer Obligated to Do?
On defendant’s request, a supervision officer must promptly provide the defendant
with a copy of OCA’s standardized form. We recommend providing a copy of the
instructions, too.
(See Code of Criminal Procedure Art. 42A.655(i))
What is the Court Obligated to Do?
On the defendant’s request, the court must promptly provide the defendant with
a copy of OCA’s standardized form. We recommend providing a copy of the
instructions, too.
(See Code of Criminal Procedure Art. 42A.655(i))
At any hearing for an alleged violation of a condition of community supervision,
the court must reconsider the defendant’s ability to make payments.
(See Code of Criminal Procedure Art. 42A.655(d))
On receiving a proper request for reconsideration, the court must determine
whether the defendant’s financial status or ability to make required payments has
changed so much so that the defendant’s ability to make a payment has been
substantially hindered. If the court finds there is substantial hinderance, the court
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
3
must then determine whether all or part of the required payments should be
satisfied by an alternative method.
(See Code of Criminal Procedure Art. 42A.655(e))
What Payments Shall the Court Reconsider?
The court can reconsider any fee, fine, reimbursement cost, court cost,
rehabilitation cost, program cost, service cost, counseling cost, ignition interlock
cost, assessment cost, testing cost, education cost, treatment cost, payment
required under Article 42A.652 (Monthly Reimbursement Fee), or other payment
or cost authorized or required as a condition of community supervision.
(See Code of Criminal Procedure Art. 42A.655(b), (e))
What Alternative Methods are Available to the Court?
The court may require payments to be made at a later date or in a specified
portion at designated times (
e.g., defer any payment or payments for several
months, order payment of a reduced amount per month, order bimonthly
payments, or impose a payment plan
), waive all or part of payments in total or
for a specified period of time then reevaluate
(e.g., 1 month, 3 months, 6 months)
,
require the completion of community service instead of payments, if applicable,
or require any combination of the aforementioned methods.
(See Code of Criminal Procedure Art. 42A.655(f))
Are There Any Filing Fees on Filing the Request?
No
Criminal filing fees are assessed on “conviction” only. The request for
reconsideration does not result in a conviction, adjudication, or a finding of guilt.
The clerk should not assess filing fees on the filing of OCA’s standardized form.
Does the Court Have to Hold a Hearing?
No
The court does not have to hold a hearing, but the court must notify the
defendant and the attorney representing the state of the court’s decision and
whether the court will allow an alternative method of payment.
(See Code of Criminal Procedure Article 42A.655(e))
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
4
What Happens if the Defendant’s Financial Status or Ability to Pay Improves
During the Period of Community Supervision?
The court may order the defendant to pay all or part of any payment waived if
the court later determines that the defendant has the financial means or resources
to make the payment. The court must provide notice and an opportunity for the
defendant to be heard before ordering the payment of any amount waived.
(See Code of Criminal Procedure Article 42A.655(j))
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
5
REQUEST FOR RECONSIDERATION OF ABILITY TO PAY
IF AT ANY TIME WHILE YOU ARE ON COMMUNITY SUPERVISION YOUR ABILITY TO PAY
ANY FINE, FEE, PROGRAM COST, OR OTHER PAYMENT ORDERED BY THE COURT,
OTHER THAN RESTITUTION, CHANGES AND YOU CANNOT AFFORD TO PAY,
YOU HAVE
THE RIGHT TO REQUEST THAT THE COURT REVIEW YOUR PAYMENTS AND CONSIDER
CHANGING OR WAIVING YOUR PAYMENTS. YOU CAN USE THIS FORM TO MAKE A
REQUEST FOR A CHANGE IN YOUR PAYMENTS. YOU CANNOT USE THIS FORM TO
REQUEST A CHANGE IN RESTITUTION PAYMENTS.
____________________ (1)
Date
The Honorable ___________________ (2) (Name of Judge)
__________________________________ (3) (Name of Court)
c/o Clerk of the Court
Re: Criminal Cause No. ___________________
(4)
(Case No.)
To the Honorable Court,
I, __________________________________ (5), respectfully request the court to
reconsider my ability to make the required payments, excluding restitution, in
this case, including but not limited to the payment of any fee, including the
monthly supervision fee required under Article 42A.652, Code of Criminal
Procedure, fine, reimbursement cost, court cost, rehabilitation cost, program
cost, service cost, counseling cost, ignition interlock cost, assessment cost,
testing cost, education cost, or treatment cost. Currently, I am required to make
a total monthly payment of $________. (6)
As of ____________________ (7), I no longer have or had sufficient resources
or income to make required payments. Consequently, I am behind in payments
by approximately $__________, and currently, I can afford to pay only $______
per __________. (8)
The court originally or last considered my ability to pay on
____________________ (9). Following the court’s consideration, my financial status
or ability to pay changed in such a way that my ability to make a payment is
Day
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
6
or has been substantially hindered by one or more of the following reasons
indicated on Exhibit A, which is attached.
I have not submitted a request for reconsideration within the last six-
month period, or if I have, I am asking the court to find that a substantial and
compelling reason exists for making an additional request because
(10).
For the reasons stated above and indicated in Exhibit A, I respectfully
request the court to order the payment satisfied by an alternative method
provided under Article 42A.655(f), which includes determining whether all or a
portion of the payment should be paid at a later date or in a lesser amount
at designated intervals, waived in part or in full, discharged by performing
community service, or satisfied by any combination of the aforementioned
methods. In light of my current financial status or ability to pay, I respectfully
request the court to
(11).
WHEREFORE, I pray the court will grant my request.
I have have not notified my supervision officer of this request. (12)
Respectfully submitted,
___________________________(13)
Defendant’s Signature
Defendant’s Declaration
I declare under penalty of perjury that the foregoing, including the
information in Exhibit A, is true and correct.
My name is (14).
My address is _____________________________________________________________(15).
Street City State Zip Code
_____________________(16) signed on __/__/____/(17) in _________(18) County, _____(19)
Defendant’s Signature Month/Day/Year County Name State
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
7
INSTRUCTIONS FOR COMPLETING THE REQUEST FORM
1. Enter the date, preferably the date that you complete and sign the request.
2.
Enter the name of the judge for the court in which your case was heard
(e.g., “Kevin Thomas” or “Judge,” if you do not know the name).
3. Enter the name of the court
(e.g., 450
th
District Court, County Court at Law
#7, Justice of the Peace, Precinct 1).
4. Enter the cause number of your case. If you don’t know it ask your community
supervision officer or the clerk of the court.
5. Enter your name as it appears on the community supervision or court’s
papers.
6. Enter the total amount of payments that you have been ordered to pay on
a monthly basis.
7. Enter the date that you could no longer pay all or could only pay part of
the required payment.
8. Enter the total amount overdue and tell the court how much you can afford
to pay on a monthly or weekly basis. Enter zero if you cannot afford to pay
anything.
9. Enter the date that the court last considered your ability to pay. If you don’t
remember ask your community supervision officer.
10. You are limited to one request every six months. If it has not been six
months since the court (not your community supervision officer) last
considered your ability to pay, you must enter the reason why you think you
are eligible to make an additional request. If the court does not think your
reason is substantial and compelling, your request will not be considered.
You must wait six months after the court’s last consideration before making
a/another request.
11. Tell the court what you want and why. Be as specific as you can
(e.g., waive
all payments or waive them for a specific period of time- 3 months, 6
months, 9 months, reduce payments by $50.00, give me 10 more days to
pay, put me on a payment plan where I pay $20.00 a month for 8 months
or until I get a job)
and provide specific reasons as to why you are unable
to make all or part of your payments
(e.g., job loss, income loss, health
issue)
. Look at Exhibit A for other suggestions.
12. Check the appropriate box to indicate whether you told your community
supervision officer of your intent to file the request. The law does not require
you to notify your community supervision officer, but it could speed up things
if you notify your community supervision officer as the court may need your
community supervision officer to verify your information or provide some
input.
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
8
13. Sign the request.
14. Enter your name again.
15. Enter your address.
16. Sign your declaration. Please verify that the information in your request is
correct before you sign the declaration.
17. Enter the date on which you signed the declaration.
18. Enter the county in which you signed the declaration.
19. Enter the state in which you signed the declaration.
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
9
Exhibit A
Cause No. ___________________ (1)
Following the court’s initial or last determination of my ability to pay, my
ability to make a payment has been substantially hindered by one or more of
the following:
loss of employment on ____________, (2)
loss of income in the amount of $________ on ________ due to
(3)
,
loss of a public benefit or government entitlement in the amount of
$ (4),
loss of residence or place to live (if residing with a family member) on
______________, (5)
loss or lack of transportation as of __________, (6)
loss of real estate or personal property in the amount of $ (7)
a court entered an order withholding my wages in the amount of
$__________on _________ (attach a copy of the court’s order), (8)
I begin paying child support in the amount of $__________ on
__________ (9) (Attach the court’s order of child support, if applicable, and
proof of payments),
my child support payments increased from $_______ to $_______ on
(10) (Attach the court’s order of child support, if applicable,
and proof of payments),
my mortgage or rent payment increased from $________ to $________ on
_____________ (Attach proof of mortgage or rental agreement), (11)
additional expenses have been incurred in the amount of $_________ for
medical, dental, or other reason. List the additional expenses incurred
______________. (Attach proof of such expenses), (12)
my number of dependents increased from ________ to ______ on
_______when , (13)
I was incarcerated or in custody at ______________ for _____ days, (14)
there are limitations on my ability to work or earn money, such as
(15)
,
or
I am unable to pay for the following other reasons:
(16).
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
10
INSTRUCTIONS FOR COMPLETING EXHIBIT A
1. Enter the cause number of the case. If you don’t know it ask your community
supervision officer or the clerk of the court.
2. Check this box if you lost your job or other source of employment income
after the court last determined your ability to pay. Include the date that you
lost your job or other employment.
3. Check this box if you lost a source of income after the court last determined
your ability to pay. Examples of such income include but are not limited to
retirement or pension income, social security income, income from child or
spousal support, income from tips or bonuses, disability or worker’s
compensation income, income from dividends, interest or royalties, income
from unemployment benefits, your spousal’s income, and income from another
member of your household. Include the amount of the loss, the date of the
loss, and a brief explanation of what income was lost and under what
circumstances.
4. Check this box if you lost a public benefit or government entitlement after the
court last determined your ability to pay. Examples of such benefit or
entitlement include but are not limited to food stamps/SNAP, TANF, Medicaid,
Public or Section 8 housing, Supplemental Security Income (SSI), Need based
VA pension, WIC, and Emergency or General Assistance.
5. Check this box if you lost your home, apartment, room, or other place of
residence after the court last determined your ability to pay. Include the date
that you lost your residence or other place to live.
6. Check this box if you lost your car, ride, or other mode of transportation after
the court last considered your ability to pay. Include the date that
transportation was no longer available. You can include the loss of public
assistance for transportation (e.g., bus pass or transportation subsidy).
7. Check this box if you no longer have real estate
(e.g., home, rental property)
or some personal property (
e.g., cash, bank accounts, vehicles, jewelry, stocks,
boats
) that you had when the court last considered your ability to pay. Include
the amount of the loss.
8. Check this box if another court entered a judgment and order withholding all
or part of your wages or employment income after the court last considered
OCA STANDARDIZED FORM AND INSTRUCTIONS
11/23/21
11
your ability to pay. You must attach a copy of the court order authorizing the
withholding. Include the amount withheld and the date the withholding started.
9. Check this box if you started paying child support payments after the court
last considered your ability to pay. Include the amount and the date that you
started making the payments. You must attach proof of payments.
10. Check this box if your child support payments increased after the court last
considered your ability to pay and you have been making the increased
payments. You must attach proof of payments. Include the amount of the old
and new payments and the date on which the increased amount started.
11. Check this box if your mortgage or rent increased after the court last
considered your ability to pay. Include the old and new amounts and the date
on which the increased amount started. Attach proof of the new mortgage or
rental amount.
12. Check this box if you incurred any additional expense or expenses after the
court last considered your ability to pay. You should include anything that is
making it difficult for you make required payments.
13. Check this box if the number of your dependents increased after the court
last considered your ability to pay. This includes parents who are dependent
on you as well.
14. Check this box if you were held in custody, confined, or imprisoned after the
court last considered your ability to pay. Include the name of the facility where
you were in custody, confined, or imprisoned and the number of days of such
custody, confinement, or imprisonment.
15. Check this box if you have been unable to work since the court last considered
your ability to pay (e.g., limited driving privileges, no available childcare, poor
health, or other limit). Attach proof, if possible.
16. Check this box if none of the other boxes apply, or if you want to provide
your own explanation.
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Instructions and Information Regarding Reconsideration of a Defendants (Office of Court Administration)

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Completed 27 June 2022

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