PD-0055-23 & PD-0056-23 04/12/2023
“Did the lower court properly adopt a restitution standard under Bailey [v. State, 171 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2005)] or did this Court’s opinion in Hanna [v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014)] replace any pre-Hanna restitution standards, which eliminated any conflict amongst the sister courts?”
While driving, Johnson collided with a utility pole and a parked antique truck and then drove a short distance away. Johnson never tried to speak with the truck owner’s wife and never traded information with her. He was convicted of attempted failure to perform his statutory duty on striking a fixture and attempted failure to perform his statutory duty when being involved in an accident involving more than $200.00 in damages to a vehicle. See Tex. Transp. Code §§ 550.022 (Accident Involving Damage to Vehicle), 550.023 (Duty to Give Information and Render Aid), 550.025 (Duty on Striking Structure, Fixture, or Highway Landscaping). The trial court ordered restitution in the amount of $200.00 for damage to the pole and $10,000.00 for damage to the truck.
Johnson challenged the restitution orders on appeal. The court of appeals agreed. It cited Hanna for the proposition that “there must be a causal connection between the criminal offense and the recipient of restitution.” See Hanna, 426 S.W.3d at 93. It agreed with Bailey, a court of appeals opinion with similar facts, that restitution did not lie because the offense at issue—the attempt to leave the scene without fulfilling statutory duties—is not what caused the damage to the pole or truck. The court acknowledged but disagreed with courts of appeals that have held to the contrary.
The State asks whether the court of appeals has construed Hanna too narrowly. If the phrase “as a result of the offense,” see Tex. Code Crim. Proc. art. 42.037(k) (defining the burden for proving restitution amount), includes the notion of both actual and proximate causation and can apply even to victimless crimes, as Hanna says, courts should be able to award restitution based on “prerequisite” conduct—the accident—even if that does not comprise a complete offense.
