In a November 14, 2012 opinion, The Texas Court of Criminal Appeals held that the prosecution is not required to prove that a probationer was able to pay fees before he was revoked for nonpayment. The court also held that the court of appeals must determine whether the error raised by the defendant, failure to prove inability to pay fees, was waived by his pleading true to failure to pay fees.

Raimona Kevon Gipson, a Texas state prisoner, was on probation and failed to pay his fees. The state filed for revocation. Gipson pleaded true to failure to pay fees. The trial court sentenced him to eight years in prison. At no time did the state claim he was able to pay the fees, but willfully failed to do so. Gipson also did not raise the issue of inability to pay.

On appeal, Gipson claimed that the state's failure-to-pay statute, art. 42.12 § 21(c), Texas Code of Criminal Procedure, required the state to show that he was able to pay and did not. He also claimed that Bearden

v. Georgia, 461 U.S. 660 (1983) established a constitutional requirement that the state prove this before revoking his probation. The state maintained that by pleading true to the allegation, Gipson waived any such claims.

Without addressing the state's procedural claims, the court of appeals reversed the case, holding that the failure-to-pay statute required that the state first prove an ability to pay before revoking a probation. The state petition the Court of Criminal Appeals (CCA) for discretionary review.

The CCA granted review. It held that the state was correct in that the court of appeals must first determine whether the error had been preserved for review or whether it had been waived by Gipson pleading true to failure to pay the fees. Because a plea of true normally waives any challenge to sufficiency of evidence on appeal of a probation revocation, this analysis must be performed within the framework of marlin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993), in which the CCA held that "certain requirements and prohibitions are absolute and certain rights must be implemented unless expressly waived."

Because it disagreed with the constitutional and statutory analysis of the court of appeals, the CCA also gave its own analysis.

The CCA held that Learden did not impose a duty on prosecutors to prove ability to pay. Rather, it imposed a duty on the trial court to make an inquiry into ability to pay. The CCA also held that the failure-to-pay statute did not cover two of the fees Gipson failed to pay--fees for Crime Stoppers and ;re-sentence investigation. Therefore, if it determines that the pleading of true to failure to pay did not waive the issue for appeal, the court of appeals must determine whether Texas common law or the U.S. Constitution, using the CCA's analysis of Bearden, requires the prosecution to prove inability to pay prior to revocation of probation.

The judgment of the court of appeals was reversed and the case returnee to that court for proceedings consistent with the opinion. See: Gipson v. State, Tex.Crim.App. No. PD-1470-11.

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