The Book of Job states that “[a]ccording to his substance shall the restitution be, and he shall not rejoice therein.”1 Apart from being biblically significant, restitution in a Texas criminal proceeding is the court-ordered requirement that a person determined responsible for a crime return property to the crime victim or place the crime victim in the same financial or economic position that existed before the crime occurred.2 Courts recognize restitution as both a form of punishment3 and a type of remedy.4 In most jurisdictions in the United States, a court handling a criminal proceeding can order a person found responsible for a crime to pay the crime victim restitution for all actual financial loss, or actual damages, directly resulting from the crime.5 Restitution not only compensates the crime victim for actual loss in applicable cases, but also furthers the socially desirable goal of rehabilitation “[b]ecause it forces the defendant to confront, in concrete terms, the harm his actions have caused.”6

Before 1989, Article 42.12 of the Texas Code of Criminal Procedure empowered a trial court with authority to order a defendant placed on probation, now referred to as “community supervision,”7 to “make restitution or reparation to a crime victim in any sum that the court shall determine” as a condition of probation.8 But a crime victim had no legally enforceable right to obtain restitution in a criminal proceeding at that time because under the statute a trial court was empowered with absolute discretion as to whether to order a defendant adjudged responsible for a crime to pay any restitution to a crime victim as a condition of probation.9

In 1989, the Texas Legislature proposed an amendment to the Texas Constitution to establish constitutional rights for crime victims.10 The people of Texas approved the proposed constitutional amendment at a general election on November 7, 1989, and thereby adopted Article I, § 30 (“the Article”) as part of the Texas Bill of Rights.11 The Article guarantees specified rights to crime victims,12 including the right to restitution.13

But the award of restitution to a crime victim is not automatic. A crime victim has standing to enforce the rights guaranteed by the Article, but has no standing to participate as a party in a criminal proceeding, and must therefore rely on the State’s prosecuting attorney or the trial court to obtain restitution in an applicable case.14 Whether those officials owe a crime victim any legal or ethical duty with respect to restitution is presently unclear.15 Further, the Article expressly provides that restitution must be requested by or on behalf of a crime victim, but does not state how, to whom, or when such a request should be manifested.16 In other words, the right to restitution must be invoked to be effective, and may be forever forfeited if not invoked.17 Presumably any request on the record will suffice, but the matter has not been addressed by any of the appellate courts and is presently unsettled.

Article I, § 30 expressly empowers the Legislature with authority to enact laws to define the term “victim” and enforce the constitutional rights of crime victims.18 Pursuant to the Article, the Legislature enacted statutes in the Code of Criminal Procedure empowering courts handling criminal proceedings with authority to order a person adjudged responsible for commission of a crime to pay restitution to the victim. Article 42.037,19 a general procedural statute enacted in 1993,20 comprehensively addresses the subject of restitution in criminal proceedings.21

Among other things, Article 42.037 specifies the relatively simple procedures for determining the amount of restitution that a court handling a criminal proceeding should award to a crime victim. Restitution is always determined by the trial court without a jury at the punishment or sentencing stage of the proceeding.22 The trial court can determine the amount of restitution necessary in a case based on an agreement between the parties, an unchallenged presentence investigation report, or, if there is a dispute concerning the amount of restitution the court should award the crime victim, from evidence presented at a hearing for that purpose.23

In the event such a hearing is required, the State’s prosecuting attorney bears the burden of proving, by a preponderance of the evidence, the amount of financial loss sustained by the crime victim.24 The State’s evidence need only show a reasonable basis for estimating the loss.25 The testimony of a crime victim with personal knowledge of actual financial loss resulting from the crime is ordinarily sufficient in itself to support a court’s restitution order.26 The defendant bears the burden of proving his or her financial resources and needs to enable the trial court to reasonably determine how the restitution awarded to the crime victim should be paid.27

A trial court’s restitution order will be upheld on appeal where the appellate record in the case shows that the restitution ordered directly resulted from the crime for which the defendant was adjudged responsible,28 compensates only a victim of that crime,29 and is just in that there is a factual basis for it.30 But an appellate court must remand a case for a new restitution hearing if the evidence is insufficient to support the trial court’s restitution order,31 and may otherwise delete from the trial court’s judgment any amount of restitution ordered that is not authorized by law.32

Article 42.037 brought about some very important changes pertaining to restitution in criminal proceedings. Most significantly, the article authorizes a sentencing court to order a person determined responsible for a crime to pay restitution to a crime victim in any criminal case where the crime victim has sustained actual financial loss directly resulting from that crime.33 Consequently, restitution is no longer a matter relevant only in a case where a defendant is placed on community supervision.

Article 42.037 also specifies various ways in which a court’s restitution order can be implemented or enforced. A court may require a defendant to make restitution ordered under the article immediately, within a specified period, or in specified installments during either a period of community supervision ordered or the five-year period after the end of a term of imprisonment.34 A parole panel is required to order payment of any unpaid court-ordered restitution as a condition of parole or mandatory supervision when an offender is released from confinement on either.35 Furthermore, a court’s restitution order “may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.”36 The availability of these far-reaching enforcement options is a compelling reason why restitution should be ordered in any applicable case when desired by the crime victim regardless of the offender’s present financial circumstances (which are always subject to future change) because restitution may otherwise be forever lost to the victim if not imposed at sentencing.

Apart from its positive attributes, Article 42.037 contains provisions that trial courts sometimes interpret and apply in ways that effectively deprive a crime victim of constitutionally-guaranteed restitution. Some provisions can be and are interpreted as empowering a trial court with discretion to either refuse to award or only partially award restitution to a crime victim in proper case37 because they use the statutorily ambiguous term “may” instead of mandatory language38 or contain other language implying a court has discretion in the matter.39 A related provision purports to empower a court with discretion to require an offender to perform community service or other acts instead of paying restitution to a crime victim.40 Moreover, current Texas case law relies upon cases decided before the Article became effective in 1989, and holds (without reference to the Article) that a trial court has discretion regarding whether to award any restitution to a crime victim.41

Other Article 42.037 provisions purport to specify -- and thereby limit -- the types of actual financial loss elements for which a trial court can award restitution. Article 42.037(b)(1), the provision applicable to cases involving property loss or damage, currently specifies that a court may order the offender to return the property, or, if that is “impossible or impractical or is an inadequate remedy,” pay the greater of “the value of the property on the date of the damage, loss, or destruction” or “the value of the property on the date of sentencing, less the value of any part of the property that is returned on the date the property is returned.”42 Article 42.037(b)(2), the provision applicable to cases involving personal injury or death, currently specifies that a court may order the offender to make restitution to the victim “for any expenses incurred by the victim as a result of the offense” or to “the compensation of victims of crime fund to the extent it has paid compensation to or on behalf of the victim.”43

Obviously, a crime victim can sustain many types of actual financial loss not currently specified in either Article 42.037(b)(1) or Article 42.037(b)(2), such as lost income in cases involving personal injury or death,44 and may be denied constitutionally-required restitution when those provisions are interpreted by trial courts as exhaustive and so applied. In contrast, statutory provisions in the Texas Family Code empower a court handling a juvenile proceeding to require a child found to have engaged in delinquent conduct or conduct indicating a need for supervision, or the juvenile’s parents, to make restitution to the victim of the offense for “actual damages” resulting from that conduct.45

Statutory provisions that can be interpreted as either (1) empowering a trial court with the discretion to refuse to award or only partially award restitution to a crime victim or (2) limiting the types of actual financial loss for which a trial court can award restitution may be unconstitutional, especially if applied in a manner depriving a crime victim of constitutionally-guaranteed restitution in a proper case.46 Article I, § 30 of the Texas Constitution is part of the Bill of Rights, and is accordingly subject to the inviolability provisions of Article I, § 29, which expressly provides that any provision in the Bill of Rights is “excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.”47 A right guaranteed by the Bill of Rights is self-executing to the extent that anything done by any branch of government in contravention of it is void.48 

The Legislature does not have power or authority to enact any statute conflicting with a provision of the Texas Constitution, whether in the Bill of Rights or otherwise, and any statute or portion thereof conflicting with a constitutional provision is void and of no effect.49 While the Article expressly authorizes the Legislature to enact laws to enforce the rights it bestows upon crime victims,50 such a power does not include the power to enact laws impairing or limiting those rights.51 Moreover, even though the Legislature is constitutionally empowered to regulate procedure in criminal cases,52 the Legislature may not directly or indirectly deny or impair constitutional rights under the guise of procedural regulation.53 Consequently, it appears that a trial court cannot lawfully be empowered with discretion to refuse to award or only partially award restitution to a crime victim in a proper case, and instead is constitutionally required to fully award it.

It also appears that the Legislature is without authority to limit the types of actual financial loss elements for which a trial court may award restitution because, in addition to the aforementioned constitutional considerations, a statute attempting to do so essentially attempts to define the meaning of the term “restitution.” The Article neither defines the term “restitution” nor expressly empowers the Legislature with authority to define the term. Because fully-functional Texas statutes existing before the Article’s effective date empowered courts to award restitution and contained no definition of the term,54 the Legislature does not need the power to define the term in order to carry out its expressly granted power of enacting laws to enforce the rights of crime victims, and therefore that power cannot reasonably be considered to be a power implied by the Article.55

Words used in the Constitution are construed as generally understood by the people of Texas based on the plain language of the Constitution’s literal text.56 The words will be considered to have been used in their ordinary significance unless the context indicates the contrary,57 and are usually given a broad and liberal meaning in order to effectuate the purpose of the constitutional provision of which they are a part.58 Appellate courts may consider definitions of words in legal or other dictionaries to determine the commonly understood meaning of undefined words used in constitutional provisions, statutes, or rules.59

The Court of Criminal Appeals and intermediate appellate courts recognized and used the following Black’s Law Dictionary definition of the term “restitution” both before and after the Article became effective: “Act of restoring; restoration, restoration of anything to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury; and indemnification.”60 This definition is substantially similar to definitions of the term found in ordinary dictionaries.61

As a result, the meaning of the term “restitution” is necessarily its generally understood meaning at the time the Article was adopted and became effective, which, as expressed in appellate court opinions and dictionaries at that time, requires that a trial court order a defendant determined responsible for a crime to compensate the victim of that crime for any andall actual financial loss directly resulting from the crime. The Legislature has no authority to change that meaning at any subsequent time.62

Surprisingly, Texas appellate courts have never, for any reason, addressed a claim presented by the State or a crime victim asserting that a trial court failed to award constitutionally-required restitution to a crime victim in a proper case. The reason for that may be present uncertainty concerning whether or by what post-trial remedy the State or a crime victim can present such a claim to an appellate court. Several post-trial remedies may be applicable for that purpose, but have apparently never been tried.

A crime victim has no standing to either participate as a party in a Texas criminal proceeding or contest the disposition of a charge, and therefore has no standing to independently appeal a trial court’s erroneous failure to award the victim constitutionally-required restitution.63 But the State, which has both party standing and standing to enforce a crime victim’s rights,64 may be able to present such a claim to an appellate court in a direct appeal brought on the basis that the sentence or punishment imposed by the trial court is illegal.65

In that regard, a sentence is that portion of the judgment setting out the terms of punishment.66 Restitution is specifically recognized as a form of punishment,67 and is considered as part of both the sentencing process and the sentence to the extent that a sentence in a criminal case is not complete until restitution is determined and imposed.68 A sentence not including punishment required by law is illegal,69 and, since restitution is constitutionally required in a proper case,70 a trial court’s erroneous failure to award a crime victim constitutionally-required restitution in a proper case arguably renders the sentence imposed illegal and subject to challenge on a direct appeal brought by the State.

The State may also be able to present such a claim to an appellate court as a question of law if the defendant is convicted in the case and appeals the judgment.71 Additionally, both the State, which has standing to enforce the rights of a crime victim, and a crime victim, who has standing to enforce constitutionally guaranteed rights,72 may be able to utilize extraordinary remedies73 such as mandamus74 or certiorari75 to present such a claim to an appellate court in situations where the remedy of appeal is unavailable, particularly since a crime victim has no standing in a criminal proceeding76 and therefore can never have an adequate remedy at law via appeal.

In conclusion, it should be readily apparent that while a crime victim has a constitutional right to restitution in Texas criminal proceedings, statutes addressing restitution in those proceedings contain some provisions that courts can interpret and apply in ways that can deprive a crime victim of constitutionally-required restitution, and such provisions are accordingly in need of modification or clarification by either the Legislature or appellate courts to ensure that the crime victim’s constitutional right to restitution is fully effectuated in all applicable criminal proceedings. The fact that Texas appellate courts have never addressed any of those constitutionally-questionable statutory provisions in a post-trial proceeding brought by or on behalf of a crime victim or otherwise since Article I, § 30 became effective suggests that prosecutors and judges throughout the State, who may have a legal and ethical duty to implement a crime victim’s constitutional right to restitution in a proper case, have not been exceptionally proactive in taking steps to ensure that crime victims are fully awarded constitutionally-required restitution in criminal or juvenile proceedings.

In any event, when properly awarded, restitution provides a crime victim with a legally enforceable mechanism to recover from the offender actual financial loss directly resulting from a crime. Since a restitution order in a criminal proceeding can be enforced by the State or a crime victim in the same manner as a civil judgment, awarding restitution may eliminate a crime victim’s need to bring a separate civil action against a criminal offender in many cases. At the same time, restitution is rehabilitative because it forces the offender to directly confront and take financial responsibility for the consequences of the crime. Restitution is accordingly the most significant right afforded to a crime victim in an applicable case, and, particularly because it is guaranteed to a crime victim by the Texas Constitution’s Bill of Rights, should be sought by prosecutors and fully awarded by trial courts in any case where it is requested by a crime victim and appropriate.

Don Rogers is an assistant district attorney with the Harris County District Attorney’s Office, and a member of the editorial board of The Houston Lawyer.  He received his B.B.A., J.D., and LL.M. degrees from the University of Houston, and is board certified in criminal law by the Texas Board of Legal Specialization.

Endnotes

1. Job 20:18.   2. See Thompson v. State, 557 S.W.2d 521, 525 (Tex. Crim. App. 1977).   3. See, e.g., Kelly v. Robinson, 479 U.S. 36, 49 n.10 (1986); Cabla v. State, 6 S.W.3d 543, 545-46 (Tex. Crim. App. 1999) (“Society is benefited by punishment, including restitution, that is directly related to the offenses for which a defendant has been charged and convicted.”).   4. See, e.g., United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000); United States v. Visinaiz, 344 F. Supp. 2d 1310, 1320-23 (D. Utah 2004), aff’d 428 F.3d 1300 (10th Cir. 2005), cert. denied, 126 S.Ct. 1101 (2006).   5. See George Blum, Annotation, Measure and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute, 15 A.L.R.5th 391 (1993).    6. See Kelly, 479 U.S. at 49 n.10.   7. See Tex. Code Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp. 2008) (defining “community supervision”).   8. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a)(8) (Vernon Supp. 1989). The quoted language remained in Article 42.12 until 1993, when it was deleted from renumbered Section 11(a)(8), see Act of May 27, 1993, 73d Leg., ch. 806, § 2, 1993 Tex. Gen. Laws 3209 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(8) (Vernon Supp. 2008)), contemporaneously with the enactment of Article 42.037 of the Code of Criminal Procedure, a more comprehensive statue addressing restitution which is hereinafter discussed.  See alsoMartin v. State, 874 S.W.2d 674, 676-77 (Tex. Crim. App. 1994) (discussing deletion of quoted language from Article 42.12, § 11(a)(8)).   9. See, e.g., Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Hefner v. State, 735 S.W.2d 608, 613 (Tex. App.—Dallas 1987, pet. ref’d).   10. See Tex. H.R.J. Res. 19, §§ 1, 2, 71st Leg., R.S., 1989 Tex. Gen. Laws 6426.   11. See Tex. Const. art. I, § 30, historical notes.   12. See Tex. Const. art. I, §§ 30(a), (b).   13. See Tex. Const. art. I, § 30(b)(4).   14. See Tex. Const. art. I, §§ 30(d), (e).   15. The fact that the Article empowers the Legislature to enact laws providing that a judge, prosecutor, or other listed official or agency is not liable “for a failure to provide a right enumerated in this section,” see Tex. Const. art. I, § 30(e), implies that they may have a legal duty to implement the constitutional rights of crime victims, and the implication might therefore be sufficient to support an action for damages.  See Brown v. De La Cruz, 156 S.W.3d 560, 563 (Tex. 2004) (observing Texas Constitution creates a private right of action for damages only if the language of the specific provision clearly implies one). Pursuant to the Article, the Legislature enacted a statute shielding judges, prosecutors, and others from liability for failure or inability to provide an Article 56.02 statutory right to a crime victim.  See Tex. Code Crim. Proc. Ann. art. 56.02(d) (Vernon Supp. 2008) (“A judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this article.”).  But restitution is not listed among the statutory rights Article 56.02 bestows upon a crime victim, so there is currently no liability shield for failure to provide a crime victim with constitutionally-required restitution in a criminal proceeding.  See Tex. Code Crim. Proc. Ann. arts. 56.02(a), (b) (Vernon Supp. 2008). In any event, a statutory liability shield does not negate the existence of a legal duty, but only eliminates liability for a breach of the duty.  Nor does such a liability shield negate the existence of an applicable ethical duty.   16. Subsection 30(a) rights are unconditional, whereas Subsection 30(b) rights, including the right to restitution, are expressly conditioned upon a request by a crime victim.  17. Even constitutional rights can ordinarily be forfeited if not timely asserted in the trial court.  See Tex. R. App. P. 33.1(a)(1)(A); Texas Dept. of Protective and Regulatory Services v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). But whether and to what extent an appellate court can apply traditional preservation of error doctrines that may effectively deprive a crime victim, who lacks party standing in a criminal proceeding, of constitutionally-required restitution presents an interesting conundrum involving due process and due course of law considerations.    18. See Tex. Const. art. I, § 30(c).   19. See Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 2008).   20. See Act of May 29, 1993, 73d Leg., ch. 806, § 1, 1993 Tex. Gen. Laws 3207; Tex. Code Crim. Proc. Ann. art. 42.037 historical notes (Vernon 2006).   21. The Legislature also enacted statutes in the Family Code empowering courts handling juvenile proceedings with authority to order payment of restitution for “actual damages” resulting from delinquent conduct or conduct indicating a need for supervision. See, e.g., Tex. Fam. Code Ann. §§ 54.041(b), (c) (Vernon Pamph. Supp. 2008). Discussion of restitution in juvenile proceedings is beyond the scope of this article, but the constitutional considerations addressed herein are equally applicable in those proceedings.   22. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2008); Campbell v. State, 5 S.W.3d 693, 698 (Tex. Crim. App. 1999) (holding amount of restitution court can order is not limited by the upper limit of the jurisdictional property-value amount of the crime alleged) (“At common law, the power to impose restitution rested with the judge.  Since then, the authority to impose restitution has remained by statute with the judge.”) (citation omitted).   23. See Tex. Code Crim. Proc. Ann. arts. 42.037(j), (k) (Vernon Supp. 2008).   24. See Tex. Code Crim. Proc. Ann. art. 42.037(k) (Vernon Supp. 2008).   25. See Barrera v. State, No. PD-1642-07, 2008 WL 4149709, at *3 n.1 (Tex. Crim. App. Sept. 10, 2008).   26. See, e.g., Burris v. State, 172 S.W.3d 75, 78 (Tex. App.—Fort Worth 2005, no pet.).   27. See Tex. Code Crim. Proc. Ann. art. 42.037(k) (Vernon Supp. 2008).   28. See Bailey v. State, 171 S.W.3d 639, 641-42 (Tex. App.—Houston [14th Dist.] 2005, no pet.).   29. See Lemos v. State, 27 S.W.3d 42, 48-49 (Tex. App.—San Antonio 2000, pet. ref’d). Restitution may also be awarded in the interest of justice to a person who otherwise compensated a crime victim for loss resulting from the crime.  See Tex. Code Crim. Proc. Ann. art. 42.037(f)(1) (Vernon Supp. 2008); Lemos, 27 S.W.3d at 48-49.   30. SeeCampbell, 5 S.W.3d at 699; Cartwright, 605 S.W.2d at 289.   31. See Barrera, 2008 WL 4149709, at *3.   32. See Barrera, 2008 WL 4149709, at *2.   33. See Tex. Code. Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2008).   34. See Tex. Code Crim. Proc. Ann. art. 42.037(g) (Vernon Supp. 2008).   35. See Tex. Code Crim. Proc. Ann. art. 42.037(h) (Vernon Supp. 2008).   36. See Tex. Code. Crim. Proc. Ann. art. 42.037(m) (Vernon Supp. 2008).  The Legislature also enacted a statute providing that “the attorney representing the state in a criminal case in which a victim is determined by the court to be entitled to restitution or in which a defendant is ordered to pay fines or costs” or “a victim in a criminal case determined by the court to be entitled to restitution” can perfect a “restitution lien” that attaches to the real and personal property of a defendant who owes restitution by filing an affidavit that is “signed by the attorney representing the state or a magistrate” and contains specified information with the Secretary of State, the Texas Department of Transportation, and the county clerk of the county where the crime was committed, the defendant resides, or the property is located.  See Tex. Code Crim. Proc. Ann. art. 42.22 (Vernon 2006). Assuming that a court’s restitution order can be enforced by the State or a crime victim in the same manner as a civil judgment, as Article 42.037(m) states, it follows that either the State or the crime victim can perfect an ordinary judgment lien based on the restitution order, so the need for a separate “restitution lien” is not readily apparent. But no Texas appellate court has addressed or construed the precise meaning and scope of either Article 42.037(m) or Article 42.22.  Consequently, the extent to which civil rules and procedures for enforcement of judgments may apply to a restitution order entered in a criminal proceeding is presently unsettled.   37. For the purpose of this article, a proper case for restitution is one where evidence in the record establishes that the victim of the crime for which the defendant is determined responsible has suffered actual financial loss directly resulting from that crime, and the record shows the crime victim or the victim’s legal representative manifested a request for restitution sufficient to invoke the victim’s constitutional right to it.    38. See Tex. Code. Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2008) (“[T]he court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense . . . .”). The term “may” is statutorily ambiguous in that it either “creates discretionary authority or grants permission or a power,” see Tex. Gov’t Code Ann. § 311.016(1) (Vernon 2005), but courts often interpret it as only giving discretionary authority,  see, e. g., Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.—Texarkana 2005, no pet.) (“The use of the word ‘may’ in a statute shows that the provision is discretionary and not mandatory.”), when it could also be interpreted as merely granting a power.   39. See, e.g., Tex. Code Crim. Proc. Ann. arts. 42.037(a) (“If the court does not order restitution ororders partial restitution under this subsection, the court shall state on the record the reasons for not making the order or for the limited order.”), (c) (“The court, in determining whether to order restitution and the amount of restitution, shall consider: . . . .”) (Vernon Supp. 2008) (emphasis added). Moreover, a related statute purports to require “mandatory restitution” for kidnapped or abducted children, see Tex. Code Crim. Proc. art. 42.0371 (Vernon 2006), and uses the mandatory term “shall,” which “imposes a duty,” see Tex. Gov’t Code Ann. § 311.016(2) (Vernon 2005), and that in itself suggests the Legislature views restitution authorized by Article 42.037 as a matter subject to a court’s discretion.   40. See, e.g., Tex. Code Crim. Proc. Ann. arts. 42.037(p)(2)(A), (s)(2) (Vernon Supp. 2008).   41. See, e.g., Carroll v. State, 915 S.W.2d 246, 247 (Tex. App.—Beaumont 1996, no pet.) (“Whether to order any restitution is within the discretion of the trial court.”), citing Cartwright, 605 S.W.2d at 289.   42. See Tex. Code Crim. Proc. Ann. art. 42.037(b)(1) (Vernon Supp. 2008).   43. See Tex. Code Crim. Proc. Ann. art. 42.037(b)(2) (Vernon Supp. 2008).   44. From its 1993 enactment until 2005, when the relevant subsection was deleted, Article 42.037 authorized courts to award restitution to a crime victim for lost income resulting from personal injury.  See Act of May 27, 1993, 73d Leg., R.S., ch. 806, § 1, 1993 Tex. Gen Laws 3207 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 42.037(b)(2) (Vernon Supp. 2008)); Tex. Code Crim. Proc. Ann. art. 42.037(b)(2)(C) (Vernon Supp. 2004). Appellate courts relied upon the subsection to uphold restitution awards for present and future lost income in criminal cases.  See Lemos, 27 S.W.3d at 49; Richardson v. State, 957 S.W.2d 854, 859-60 (Tex. App.—Tyler 1997, pet. ref’d). The amendment may have resulted from the Legislature’s apparent concern that convicted criminals not be overly burdened with court-ordered payments. See Martin, 874 S.W.2d at 681 n.3 (Baird, J., dissenting) (discussing in context of restitution the concern of certain members of the Legislature that “a defendant would be overloaded with too many payments”).   45. See Tex. Fam. Code. Ann. §§ 54.041(b), (c) (Vernon Pamph. Supp. 2008).   46. A claim that a statute is facially unconstitutional is a claim asserting the statute always operates unconstitutionally. See Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006).  A claim that a statute is unconstitutional as applied is a claim asserting that the statute, while generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances as shown by the evidence in the case. Id., 205 S.W.3d at 536 nn.3-4.  A claim that a statute is unconstitutional as applied must ordinarily be presented to a trial court, and cannot be raised for the first time on appeal. See Curry, 910 S.W.2d at 496.   47. See Tex. Const. art. I, § 29.   48. SeeCity of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995); Alvarado v. State, 83 Tex. Crim. 181, 202 S.W. 322, 323 (1918).   49. See City of Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615, 618 (1951); Cook v. State, 902 S.W.2d 471, 478-79 (Tex. Crim. App. 1995).    50. See Tex. Const. art. I, § 30(c).   51. See Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1029 (1934) (“This power, however, to ‘pass such laws,’ etc., is subject to the limitations contained in the Bill of Rights . . . .”).   52. See Meshell v. State, 739 S.W.2d 246, 255 (Tex. Crim. App. 1987).   53. See Langever, 76 S.W.2d at 1029; Johnson v. State, 42 Tex. Crim. 103, 58 S.W. 69, 70-71 (1900) (observing Legislature may enact procedural laws regulating the court’s appellate jurisdiction “so long as in the enactment of laws regulating procedure in the courts they do not deny to defendants any constitutional right”).   54. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a)(8) (Vernon Supp. 1989); Tex. Fam. Code Ann. § 54.041(b) (Vernon 1986).   55. See Tex. Cent. Ry. Co. v. Bowman, 97 Tex. 417, 79 S.W. 295, 297 (1904) (recognizing a power will be implied under the Constitution only where necessary for the exercise of  a power expressly granted).    56. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000).   57. See Gallagher v. State, 690 S.W.2d 587, 592 (Tex. Crim. App. 1985).   58. See Brown County Water Improvement Dist. No. 1 v. Austin Mill & Grain Co., 135 Tex. 140, 138 S.W.2d 523, 525 (1940).   59. See, e.g., Gallagher, 690 S.W.2d at 592;  Thomas v. State, 923 S.W.2d 645, 648 (Tex. App.—Houston [1st Dist.] 1995, no pet.).   60. See Thompson, 557 S.W.2d at 525 (quoting Black’s Law Dictionary, Rev. 4th Ed.); Matter of J.R., 907 S.W.2d 107, 109 (Tex. App.—Austin 1995, no pet.) (accord); Davis v. State, 757 S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.) (accord).   61. See, e.g., The Compact Edition of the Oxford English Dictionary 2516 (Oxford University Press 1971) (defining “restitution” as including “action of restoring or giving back something to its proper owner, or making reparation to one for loss or injury previously inflicted” and “action of restoring a person or persons to a previous status or position”).    62. See Jones v. Ross, 141 Tex. 415, 419, 173 S.W.2d 1022, 1024 (1943) (“It is the settled law of this State that the provisions of our State Constitution mean what they meant when they were promulgated and adopted, and their meaning is not different at any subsequent time.”); Ex parteGiles, 502 S.W.2d 774, 784 (Tex. Crim. App. 1974) (“[T]he  meaning of words of a Constitution at the time they were placed therein cannot be altered or amended by legislation at a subsequent time.”).   63. See Tex. Const. art. I, § 30(e).   64. See Tex. Const. art. I, § 30(d).   65. See Tex. Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp. 2008) (“The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal.”). In contrast, the State has no right to appeal in a juvenile proceeding. See Tex. Fam. Code Ann. § 56.01 (Vernon 2002); In re F.C., 108 S.W.3d 384, 385 (Tex. App.—Tyler 2003, no pet.).   66. See State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997).   67. SeeCabla, 6 S.W.3d at 545-46.   68. See Bailey v. State, 160 S.W.3d 11, 15-16 (Tex. Crim. App. 2004).   69. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A party can complain of an illegal sentence for the first time on appeal.  Id.   70. See Tex. Const. art. I, § 30(b)(4).   71. See Tex. Code Crim. Proc. Ann. art. 44.01(c) (Vernon Supp. 2008) (“The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment.”).    72. See Tex. Const. art. I, § 30(e).   73. See Bouillion, 896 S.W.2d at 149 (observing that violations of constitutional rights may be addressed in suits seeking equitable remedies).   74. Mandamus is an extraordinary remedy that can be used to correct a clear abuse of discretion by a trial court. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (“Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in an appellate reversal by extraordinary writ.”).  A trial court’s failure to award a crime victim constitutionally-required restitution in a proper case may be a clear abuse of discretion that can be reviewed by an appellate court in a mandamus proceeding.   75. Certiorari is a common law remedy allowing an appellate court to review acts of an inferior tribunal where no right of appeal exists, and therefore may be a remedy the State or a crime victim can use to request the Court of Criminal Appeals to review a trial court’s constitutionally-inadequate restitution order.  See Ex parte Brand, 822 S.W.2d 636, 637-39 (Tex. Crim. App. 1992) (recognizing authority of Court of Criminal Appeals to issue writ of certiorari) (“While we reserve for another day the decision regarding what type of cases over which we shall exercise common law certiorari, we now decide that the writ shall not issue in any case in which there is a right to appeal.”).   76. See Tex. Const. art. I, § 30(e).

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