Does Restitution Must Be Made Only to the Victim ?
The restitution statutes have undergone extensive revisions.
Prior to 1987, the only limitation on a restitution order was that it be "just" with a sufficient factual basis in the record. Romine v. State, 722 S.W.2d 494, 495 (Tex. App.-Houston [14th Dist.] 1986), pet. ref'd per curiam, 747 S.W.2d 382 (Tex. Crim. App. 1988); see Cartwright, 605 S.W.2d at 289.
In 1987, however, the Legislature added section 11(b) to article 42.12, which prohibits a restitution order except to the victim of the crime for which the accused is criminally responsible. TEX. CODE CRIM. PROC. ANN. art. 42.12 11(b)(Vernon Supp. 2000).
Another pivotal revision came in 1993, with the creation of article 42.037, devoted exclusively to restitution.
The court of criminal appeals addressed these changes in Martin v. State, 874 S.W.2d 674, 675 (Tex. Crim. App. 1994).
Martin involved a conviction for securities fraud.
On appeal, the issue in Martin involved the propriety of a restitution order which extended payments to investors not linked with the charged offense. Id.
Although the court acknowledged the passage of the more specific article 42.037, the court resolved the issue exclusively within the parameters of article 42.12 and held the trial court erred in ordering the defendant to make restitution payments to parties not harmed by the defendant's action.
As stated by the court:
A plain reading of the two provisions together leads to the conclusion that subsection (b) [of article 42.12 11] serves as a limitation on the restitution that can be ordered under subsection (a).
Subsection (a) sets forth a broad grant of authority, providing that a court may order a variety of terms and conditions of probation, including a condition that the defendant make "restitution or reparation in any sum the court shall determine."
Subsection (b), however, imposes limitations on the types of payments that can be ordered as a condition of probation, providing that no payment can be ordered except "restitution to the victim" and certain other identified payments.
Further, in the context of the probation statute as a whole, we think it logical to conclude that subsection (b)'s limitation of restitution to "the victim" refers to the victim of the crime for which the defendant has been charged, convicted and sentenced. Id. at 677.
This court reached the same conclusion under the more specific statute, article 42.037, in Gonzalez v. State, 954 S.W.2d 98, 106 (Tex. App. -San Antonio 1997, no pet.).
In construing article 42.037, this court held that:
Restitution is limited to the results of the offense or offenses charged, and that restitution must be made only to the victim, except that in the interest of justice, restitution may be made to a person who has compensated the victim for the loss to the extent the person has paid compensation. Id. at 106.
This language acknowledges a very limited expansion in Texas to persons such as insurance companies who compensate victims. See Flores v. State, 513 S.W.2d 66, 69-70 (Tex. Crim. App. 1974); Maloy v. State, 990 S.W.2d 442, 444 (Tex. App.-Waco 1999, no pet.); see generally In re M.S., 985 S.W.2d 278, 279 (Tex. App.-Corpus Christi 1999, no pet.).