RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Brief Header
3. Statement of the Case
4. Statutory Framework
5. Victim Information
6. Disputed Restitution Amount
7. Defense Arguments
8. Proposed Alternative Amount
9. Ability-to-Pay Analysis
10. Payment Plan Proposal
11. Legal Authority
12. Conclusion
13. Certificate of Service

Caption

IN THE [________________________________] COURT

[________________________________] COUNTY, TEXAS

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
State Bar No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of Texas Penal Code Section [________________________________].

On [__/__/____], the Defendant was [convicted by plea / convicted at trial] of the following offense(s):

On [__/__/____], the Court sentenced the Defendant to [________________________________].

Statutory Framework

Texas Code of Criminal Procedure Article 42.037 governs restitution in criminal cases.

• Discretionary Restitution: Under Art. 42.037(a), in addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense or to the compensation to victims of crime fund.

• Standard of Proof: Under Art. 42.037(k), the court shall resolve any dispute relating to the proper amount or type of restitution by a preponderance of the evidence.

• Burden of Proof: The burden of demonstrating the amount of loss is on the prosecuting attorney (Art. 42.037(k)(1)). The burden of demonstrating financial resources and needs is on the defendant (Art. 42.037(k)(2)).

• Statement on Record: If the court does not order restitution or orders partial restitution, the court shall state on the record the reasons for the decision (Art. 42.037(a)).

Victim Information

Disputed Restitution Amount

Defense Arguments

A. Causation

[________________________________]

B. Amount Calculation Errors

[________________________________]

C. Inability to Pay

[________________________________]

D. Speculative Damages

[________________________________]

E. Insurance Coverage Offset

☐ Victim received insurance proceeds of $[________________________________]
☐ Insurance claim pending for $[________________________________]
☐ No insurance coverage applicable

[________________________________]

F. Collateral Source

[________________________________]

Proposed Alternative Amount

Based on the foregoing arguments, the Defense respectfully proposes a total restitution amount of $[________________________________], calculated as follows:

Ability-to-Pay Analysis

Income

Assets

Monthly Obligations

Net Monthly Disposable Income: $[________________________________]

Payment Plan Proposal

The Defendant respectfully proposes the following payment plan:

• Total Restitution Amount: $[________________________________]
• Initial Lump Sum Payment: $[________________________________] (if applicable)
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority

1. Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) -- Restitution must bear a direct causal connection to the offense of conviction; the court may not order restitution for losses from uncharged offenses.

2. Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002) -- The evidence must support the amount of restitution ordered; the State bears the burden of proving the amount by a preponderance of the evidence.

3. Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) -- A restitution order that exceeds the loss proven at trial or hearing constitutes an abuse of discretion.

4. Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) -- The trial court must consider the defendant's ability to pay when ordering restitution as a condition of community supervision.

5. Tex. Code Crim. Proc. Art. 42.037 -- Governs restitution orders, including types of recoverable losses, burden of proof, and payment terms.

Conclusion

For the foregoing reasons, the Defense respectfully requests that this Court:

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Exclude speculative and unsupported damages from the restitution order;
☐ Credit insurance proceeds and collateral source payments against the restitution amount;
☐ Approve the proposed payment plan as set forth herein;
☐ Grant such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
Attorney for Defendant
State Bar No. [________________________________]

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

District Attorney's Office:
[________________________________]
[________________________________]
[________________________________]

Victim(s) / Victim's Attorney (if applicable):
[________________________________]
[________________________________]
[________________________________]

Dated: [__/__/____]

________________________________________
[________________________________]

Texas-Specific Notes

• Mandatory vs. Discretionary: Restitution in Texas is generally discretionary under Art. 42.037(a), but it is mandatory as a condition of community supervision under Art. 42A.301(b)(14). The court must state reasons on the record if it does not order restitution.
• Standard of Proof: Preponderance of the evidence (Art. 42.037(k)).
• Appellate Review: Reviewed for abuse of discretion. The appellate court examines whether the amount is supported by a factual basis in the record.
• Enforcement: Restitution may be enforced through contempt proceedings or revocation of community supervision. A restitution order may also be enforced as a civil judgment under Art. 42.037(n).
• Ability to Pay: The court must consider ability to pay under Art. 42.037(c), particularly when restitution is imposed as a condition of community supervision. (Hanna v. State, 426 S.W.3d 87.)
• Limitation on Amount: When imposed as a condition of community supervision, restitution cannot exceed the amount of the loss or damage, and the court must consider the defendant's ability to pay.