BRIMZY, LATORA v. the State of Texas

In the Court of Criminal
Appeals of Texas
════════════
No. PD-0101-25
════════════

LATORA BRIMZY, Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Harris County
═══════════════════════════════════════

YEARY, J., delivered the opinion of the Court in which SCHENCK,
P.J., and KEEL, FINLEY, and PARKER, JJ., joined. RICHARDSON, NEWELL,
and MCCLURE, J.J., concurred in the result. WALKER, J., dissented.

This case involves a dispute in the courts of appeals over the scope
of Article 42A.751(i) of the Texas Code of Criminal Procedure—better
BRIMZY – 2

known as the “failure-to-pay statute.” TEX. CODE CRIM. PROC. art.
42A.751(i). This statute explains:
In a revocation hearing at which it is alleged only that the
defendant violated the conditions of community
supervision by failing to pay community supervision fees or
court costs or by failing to pay the costs of legal services as
described by Article 42A.301(b)(11), the state must prove
by a preponderance of the evidence that the defendant was
able to pay and did not pay as ordered by the judge.

TEX. CODE CRIM. PROC. art. 42A.751(i) (all emphasis added). This
subsection of the community-supervision-revocation statute imposes a
burden on the State to prove a probationer’s ability to pay, and failure
to pay, among other things, court costs and community supervision fees
in certain proceedings. 1
Some courts of appeals have concluded that Article 42A.751(i)
applies only when nonpayment is the sole ground alleged by the State in
its pleading. E.g., Davis v. State, 591 S.W.3d 183, 193 (Tex. App.—
Houston [1st Dist.] 2019, no pet.). Other courts of appeals, including the
court of appeals in this case, have concluded that 42A.751(i) applies

1 This case involves a hearing on a motion to revoke and proceed to

adjudicate following deferred adjudication community supervision rather than
a motion to revoke ordinary community supervision. See TEX. CODE CRIM.
PROC. Chapter 42A, Subchapter C, art. 42A.108 (providing for a hearing upon
a violation of deferred-adjudication community supervision). Because neither
party contests the application of Article 42A.751(i) to a hearing on an alleged
violation of deferred-adjudication community supervision, rather than the
revocation of regular community supervision, we assume, without deciding,
that Article 42A.751(i) applies equally to adjudication proceedings.
Additionally, we note that the terminology of “probation” was converted to
“community supervision” in 1993. See Acts 1993, 73rd Leg., ch. 900, §§ 4.01,
13.03, eff. Sept. 1, 1993. Nevertheless, for ease of reference, we will call a
person serving community supervision a “probationer” throughout this
opinion.
BRIMZY – 3

anytime that nonpayment is the sole basis for the trial court’s order,
regardless of whether the State has also alleged other grounds. E.g.,
Scales v. State, 658 S.W.3d 366, 374 (Tex. App.—Corpus Christi 2022,
no pet.). We conclude that the language of 42A.751(i) plainly does not
apply unless nonpayment is the sole allegation. 2
Because the State proceeded here through its pleadings on other
grounds as well, at least one of which was pursued by the State
throughout the adjudication proceedings, we conclude that Article
42A.751(i) did not apply to Appellant’s case. This is true, even though
the trial court ultimately ordered adjudication only on the nonpayment
ground alleged by the State. We therefore reverse the judgment of the
court of appeals and reinstate the trial court’s order adjudicating
Appellant’s guilt.

2 We do not necessarily conclude that Article 42A.751(i) applies only

when the State’s written motion to revoke or motion to proceed to adjudication
has “alleged only” the nonpayment of the enumerated costs. The statute does
not explicitly limit its application to cases of revocation or adjudication in
which the State’s pleading alleged only such a ground. It does not say, for
example: “In a revocation hearing at which the State’s motion to revoke
community supervision alleged only that . . . .” (Emphasis added). Instead, on
its face, it simply says: “In a revocation hearing at which it is alleged only that
. . . .” (Emphasis added). This difference could lend itself, we think, to broader
interpretation. It could be argued that the limitation on application of the
State’s burden inheres any time the State’s motion to revoke or proceed to
adjudication at least includes an allegation (or allegations) of failure to make
one of the enumerated payments, and the State opts to proceed at the hearing
only on that specific allegation (or those specific allegations), and no other, for
example, by abandoning all but the nonpayment allegation(s) in its motion to
revoke/adjudicate. But we need not resolve that argument to dispose of the
instant case. Our conclusion that the court of appeals erred to hold that Article
42A.751(i) applies even when the State alleges and pursues other, non-
payment-related claims will suffice to resolve the case before us. “We leave for
another day the task of further winnowing the meaning of [the statute], should
the need arise.” Timmins v. State, 601 S.W.3d 345, 356 (Tex. Crim. App. 2020).
BRIMZY – 4

I. BACKGROUND
A. Initial Proceedings
Appellant was indicted for the felony offense of aggravated
assault on a family member. TEX. PENAL CODE § 22.01(b)(2). She pled
guilty to the lesser misdemeanor offense of assault on a family member
in exchange for one year of deferred-adjudication community
supervision. TEX. PENAL CODE § 22.01(a)(1). Then, later, the trial court
extended Appellant’s deferred adjudication for another year.
During that additional year, the State moved to adjudicate
Appellant’s guilt. It alleged that she (1) committed a new offense, (2)
failed to participate in anger management training, and (3) failed to pay,
among other monetary obligations, community supervision fees.
Appellant pled not true to all of the State’s allegations. At the hearing,
however, the State abandoned the new-offense allegation, but it
continued to pursue all of the failure-to-pay allegations and the failure
to participate in anger-management-training allegation.
At the conclusion of the hearing, the trial court adjudicated
Appellant guilty and sentenced her to one year in jail. But the trial
court’s order adjudicating Appellant’s guilt listed only her failure to pay
fees as the basis for the adjudication. Appellant then gave notice of
appeal from the trial court’s order.
B. Appellate Proceedings
In the court of appeals, Appellant argued that the trial court
abused its discretion by adjudicating her guilt because the State did not
meet its statutory burden of proof under the failure-to-pay statute.
Brimzy v. State, ___ S.W.3d ___, No. 14-22-00631-CR, 2024 WL 1313406
BRIMZY – 5

at *1 (Tex. App.—Houston [14th Dist.] Mar. 28, 2024). 3 The court of
appeals sustained Appellant’s claim. It concluded that Article 42A.751(i)
imposes a burden on the State in all cases in which nonpayment is “the
sole ground supporting revocation.” Id. at *1, *5. It made no difference
to the court of appeals whether or not “the State alleged other grounds
for revocation” in its pleading. Id. at *1, *5.
The court of appeals relied primarily for its conclusion on this
Court’s opinion in Stanfield v. State, 718 S.W.2d 734 (Tex. Crim. App.
1986). Brimzy, 2024 WL 1313406 at *5. In Stanfield, this Court had
determined that an early predecessor to the current failure-to-pay
statute, former Article 42.12, Section 8(c), of the Code of Criminal
Procedure, applied to all cases of revocation involving nonpayment of
supervision fees as a ground therefor, regardless of the content of the
State’s motion to revoke the community supervision.
The court of appeals explained that the Legislature evinced an
intent that the statute should not apply exclusively to cases in which
nonpayment is the sole ground alleged when it eventually amended
former Article 42.12, Section 8(c), in 2007, to comply with the United
States Supreme Court decision in Bearden v. Georgia. 461 U.S. 660
(1983); Brimzy, 2024 WL 1313406 at *5. Bearden had imposed certain
due process requirements whenever probation is revoked based on
nonpayment alone. 461 U.S. 660, 665. Finally, the court of appeals

3 Appellant also argued that the trial court violated her federal due

process rights by sentencing her to incarceration for failure to pay community
supervision fees without first determining whether her failure to pay was
willful. Id. But the court of appeals did not address the merits of the due
process claim because it concluded that Appellant had failed to preserve it
during the adjudication proceeding. Id. at *2.
BRIMZY – 6

determined that restricting the statute’s application to cases in which
nonpayment is the sole ground alleged would be absurd because it would
permit the State to avoid application of the statute by simply alleging
additional grounds beyond nonpayment—regardless of merit. Id. (citing
Stanfield, 718 S.W.2d at 736−37).
The State sought discretionary review in this Court, asserting two
issues. We granted review to address the State’s second issue: “Does the
failure-to-pay statute apply to adjudication proceedings where the State
alleges nonpayment and additional non-monetary grounds, but the trial
court adjudicates on solely the nonpayment ground?” 4 Our answer is no.
II. THE HISTORY OF CURRENT ARTICLE 42A.751(i)
The failure-to-pay statute is currently found in Article 42A.751(i),
and it establishes that “[i]n a revocation hearing at which it is alleged
only that the defendant violated the conditions of community
supervision by failing to pay community supervision fees . . . the state
must prove by a preponderance of the evidence that the defendant was
able to pay and did not pay[.]” TEX. CODE CRIM. PROC. art. 42A.751(i)
(emphasis added). The present iteration of the statute is not the first of
its kind.
A. Before 1977
Before 1977, this Court had concluded that the State had the
burden to prove both a probationer’s ability to pay and his intentional
failure to do so whenever it alleged nonpayment as at least one basis for
revocation and no other ground for revocation was sufficiently

4 In its first issue, the State asked whether probationers must object

during revocation proceedings when the State fails to meet its burden under
the failure-to-pay statute. We did not grant review on that issue.
BRIMZY – 7

established. See Herrington v. State, 534 S.W.2d 331 (Tex. Crim. App.
1976) (concluding that the trial court abused its discretion in revoking
probation when the State did not prove intentional failure to pay, and it
also failed sufficiently to establish four other grounds relied on for
revocation). 5 In 1977, however, the 65th Legislature passed Article
42.12, Section 8(c), which shifted the burden of proof on the issue of
ability to pay from the State to the probationer, making inability to pay,
by statute, an affirmative defense. The statute did not speak, however,
to the issue of intentionality.
B. The 1977 Statute[s]
Curiously, the 65th Legislature enacted two versions of Section
8(c), which were nearly, but not quite, identical. The first version of
Section 8(c), proposed in Senate Bill 32 (S.B. 32), applied in probation
revocation hearings in which “it is alleged only that the probationer . . .
failed to pay probation fees, court costs, or reparations.” S.B. 32, 65th
Leg., § 1 (1977) (emphasis added). The original version of S.B. 32 had
not included the adverb “only” to modify “alleged,” but the Senate
amended the statute to include the adverb after the bill initially failed
to pass in the House. Id. The second version of Section 8(c), proposed in
Senate Bill 61 (S.B. 61), did not include the word “only” to modify
“alleged,” but it added “compensation paid to appointed counsel” as an

5 See also Gipson v. State, 383 S.W.3d 152, 158 (Tex. Crim. App. 2012)

(“Prior to the 1977 codification of the law pertaining to revocation proceedings
involving failure to make required payments, this Court, in reviewing a
sufficiency challenge to revocation based on failure to pay, routinely held that
the evidence must show (1) that a defendant was able to pay and (2) that he
had acted intentionally.”).
BRIMZY – 8

additional category of payment for which a probationer must establish
an inability to pay. 6 S.B. 61, 65th Leg., § 4 (1977).
Both versions of Section 8(c) shifted the burden of proof with
respect to the probationer’s ability to pay from the State to the
probationer himself. But S.B. 32 seemed to do so only when the only
allegation that the State pursued at the revocation hearing was one of
the enumerated nonpayment allegations. In contrast, S.B. 61 seemed to
shift the burden to the probationer regardless of whether the State
alleged grounds for revocation beyond mere nonpayment of one of the
enumerated costs or fees. Both duplicate subsections passed, and they
were made effective on the same date, and they co-existed on the books
of our statutory law for four years.
C. The 1981 Amendment

6 The two subsections in § 8(c) read:

(S.B. 32) “(c) In a probation revocation hearing at which it is alleged
only that the probationer violated the conditions of probation by failing
to pay probation fees, court costs, restitution, or reparations, the
inability of the probationer to pay as ordered by the court is an
affirmative defense to revocation, which the probationer must prove by
a preponderance of the evidence.”

Acts 1977, 65th Leg., ch. 342, § 2, p. 909, eff. Aug. 29, 1977 (emphasis added).

(S.B. 61) “(c) In a probation revocation hearing at which it is alleged
that the probationer violated the conditions of probation by failing to
pay compensation paid to appointed counsel, probation fees, court costs,
restitution, or reparations, the inability of the probationer to pay as
ordered by the court is an affirmative defense to revocation, which the
probationer must prove by a preponderance of the evidence.”

Acts 1977, 65th Leg., ch. 388, § 2, p. 1058, eff. Aug. 29, 1977 (emphasis added).
BRIMZY – 9

It was not until 1981 that the Legislature acted to remedy this
duplication. It repealed what had started out as S.B. 61 and amended
what had been S.B. 32, creating a new version of Article 42.12, Section
8(c), which effectively blended the duplicate statutes:
(c) In a probation revocation hearing at which it is
alleged only that the probationer violated the conditions of
probation by failing to pay compensation paid to appointed
counsel, probation fees, court costs, restitution, or reparations,
the inability of the probationer to pay as ordered by the court is
an affirmative defense to revocation, which the probationer must
prove by a preponderance of the evidence.
Acts 1981, 67th Leg., ch. 538, §§ 1 & 2, p. 2246, eff. June 12, 1981
(emphasis added). It should be noted that the adverb “only,” modifying
“alleged,” was retained in the 1981 amendment, while the version of the
statute that did not include “only” was expressly repealed. Of course,
this legislative fix occurred more than five years before Stanfield.
D. Stanfield
In October of 1986, this Court was called upon for the first time,
in Stanfield, to reconcile the 1977 duplicate versions of Section 8(c) with
respect to the scope of the statute’s burden-shifting applicability. The
Court was required to construe the competing 1977 versions of Section
8(c) (instead of the blended version in the 1981 amendment) at this time
because Stanfield’s own revocation hearing had occurred before the 1981
amendment’s effective date. See Stanfield, 718 S.W.2d at 735 n.1; id. at
740 (Davis, J., dissenting) (“The probation revocation hearing in the
instant case was held on January 16, 1981, prior to the effective date of
the 1981 new version of [Section] 8(c) which did away with the dual
enactment of 1977.”). Thus, the original 1977 incarnations of Section 8(c)
BRIMZY – 10

were already long defunct by the time this Court came to reconcile them
in its opinion in Stanfield.
In Stanfield, the State had alleged two grounds for revocation of
the probationer’s regular probation: (1) commission of a subsequent
offense and (2) failure to pay his probation fee. Id. at 735. The trial court
found that Stanfield committed both violations. Stanfield v. State, 638
S.W.2d 127, 128 (Tex. App.—Fort Worth 1984). On appeal, Stanfield
argued that the evidence was insufficient to support the revocation. Id.
On original submission, the court of appeals agreed. Id. at 129. It held
that the evidence failed to establish commission of the subsequent
offense. Id.
With respect to the nonpayment ground for revocation, the court
of appeals first observed that, even after the 1977 addition of Section
8(c) to Article 42.12, the State was still required to prove both Stanfield’s
inability to pay and that his failure to pay was intentional. Id. It
apparently came to this conclusion by considering only the S.B. 32
version of Section 8(c)—the one with the adverb “only” modifying
“alleged”—and concluding that, because the State had alleged a ground
for revocation beyond nonpayment, the burden-shifting to the
probationer on the issue of ability to pay, embodied in Section 8(c), did
not apply. Id. at 128−29; Stanfield, 718 S.W.2d at 735. Ultimately, the
court of appeals concluded that the State did satisfy (what it believed to
be) its burden to prove Stanfield’s ability to pay, but that it nevertheless
failed to prove intentionality. Stanfield, 638 S.W.2d at 129. On that
basis, the court of appeals reversed the revocation order and remanded
the cause. Id.
BRIMZY – 11

In a motion for rehearing in the court of appeals, the State pointed
out that the 1977 Legislature had in fact passed two versions of Section
8(c), only one of which contained the adverb “only.” Id. In its opinion on
rehearing, however, the court of appeals did not bother to try to
harmonize the two competing versions of Section 8(c). Instead, it
concluded that, regardless of the scope of Section 8(c) with respect to
shifting the burden of proof as to the probationer’s ability to pay, it did
nothing to change the burden remaining on the State to prove that the
nonpayment was intentional. Id at 130 (op. on reh’g). And on that basis,
it persisted in its conclusion that the State’s evidence had been deficient
in that respect. Id.
On discretionary review, this Court reversed the court of appeals’
judgment. Stanfield, 718 S.W.2d at 739. But the reversal did not
ultimately turn on the Court’s observations with respect to the
significance of the adverb “only” in S.B. 32. It is true that this Court’s
Stanfield opinion suggested that the word’s meaning was subject to an
interpretation that would avoid what it considered to be an “anomalous”
result. 7 Id. at 736−37. The Court seemed to regard a construction of the
words “alleged only” that would result in the statute applying only when

7 In a footnote, the Court in Stanfield suggested that usage of the adverb

“only,” as well as its placement in a sentence, can result in ambiguity, and that
it “also has several meanings, including ‘at the very least.’” 718 S.W.2d at 736
n.3. Later in its opinion, the Court further suggested that “we avoid the
anomalous result” it alluded to earlier in its opinion (but never adequately
described) by reading “only” not in its natural sense as used in Section 8(c), but
in the alternative sense of “at the very least.” Id. at 737. The Court’s obiter
dicta might have proved more “persuasive,” see note 10, post, had it better
explained what it regarded as the anomaly of reading “alleged only” in its
natural sense in the context of the statute as a whole.
BRIMZY – 12

a failure to pay was the only ground alleged to be, at least “quirky,” if
not downright absurd. Id. For these reasons, the Court suggested that
the phrase “alleged only” in the statute should not be given its most
natural reading. But the Court’s suggestion was no more than obiter
dictum, because the Court would unquestionably have reached the same
bottom line in the case even without it. 8
This is so because this Court ultimately agreed with the court of
appeals’ conclusion, in its opinion on rehearing, that Section 8(c) simply
did not speak to the burden of proof with regard to the intentionality of
a probationer’s failure to pay. Both the court of appeals and this Court
concluded that the State’s evidence was sufficient to establish that
Stanfield had the ability to pay his probation fees. See id. at 737
(“[I]nability to pay was not an issue in the revocation hearing.”); 638
S.W.2d at 129 (“The State proved ability, but did not prove intent, and
[on that basis] we sustain [Stanfield’s] first ground of error.”). Thus, it
did not matter what this Court had to say about the proper allocation of
the burden under the statute with respect to ability to pay. The Court
ultimately reversed the court of appeals’ judgment because it erred to
conclude that the State had not adequately proven Stanfield’s

8 See BLACK’S LAW DICTIONARY (12th ed. 2024), at 570 (defining obiter

dictum as “[a] judicial comment made while delivering a judicial opinion, but
one that is unnecessary to the decision in the case and therefore not
precedential (although it may be considered persuasive)”). Nothing about this
Court’s discussion in Stanfield about what it perceived to be the legislative
intent behind the use of the adverb “only” in S.B. 32’s version of Section 8(c)
was necessary to its wholly dispositive conclusion that, in any event,
Stanfield’s ability to pay was never in issue and the State had satisfied its
common law burden to prove that he had intentionally failed to pay his
probation fee. See text, post.
BRIMZY – 13

intentional nonpayment, as both courts believed was still required. It
was on that basis—having nothing to do with the proper construction of
Section 8(c)—that this Court reversed the court of appeals and affirmed
the trial court’s order revoking probation.
In any event, Stanfield had not yet been decided in 1981, when
the Legislature amended Section 8(c) of Article 42.12 to unify the two
competing 1977 versions of that provision. When it chose to retain the
adverb “only” in the 1981 amendment, the Legislature could not possibly
have predicted Stanfield’s peculiar obiter dicta, and it could not have
had it in mind when retaining the word “only” in the statute while
enacting its legislative fix.
E. Subsequent Amendments in 2007 and 2015
Later, the Legislature once again included the adverb “only” to
modify “alleged,” in a 2007 amendment to the (by then renumbered)
failure-to-pay statute. Under the 2007 amendment, now-Article 42.12,
Section 21(c), was made to read:
In a community supervision hearing at which it is alleged
only that the defendant violated the conditions of
community supervision by failing to pay compensation paid
to appointed counsel, community supervision fees, or court
costs, the state must prove by a preponderance of the
evidence that the defendant was able to pay and did not pay.
Acts 2007, 80th Leg., ch. 604, §1, p. 1160, eff. Sept. 1, 2007 (amending
then-TEX. CODE CRIM. PROC. art. 42.12, § 21(c)) (emphasis added). 9 In

9 Between 1981 and 2007, the ability-to-pay statute was shuffled from

one section of Article 42.12 to another, without substantive amendment, other
than substituting the language of “community supervision” for that of
“probation.” See Acts 1989, 71st Leg., ch. 785, § 417, p. 3517, eff. Sept. 1, 1989
(recodifying Section 8(c) as Section 24(b) of Article 42.12); Acts 1993, 73rd Leg.,
BRIMZY – 14

contrast to the 1981 version, the 2007 amendment thus flipped the
burden of proof regarding ability to pay back to the State. Moreover, for
the first time, the provision included within the burden (now re-assigned
to the State) the obligation to prove, not just that the probationer had
the ability to pay, but that he in fact “did not pay[.]” 10 And finally, the
list of enumerated payments to which the provision applied no longer
included “restitution” and “reparations[.]”
In 2015, the Legislature again recodified the failure-to-pay
statute, moving it from Article 42.12, Section 21(c), into Article
42A.751(i), where it currently resides. Acts 2015, 84th Leg., ch. 770, §
1.01, p. 2362, eff. Jan. 1, 2017. No substantive changes were enacted at

ch. 900, § 4.01, p. 3740, eff. Sept. 1, 1993 (recodifying Section 24(b) of Article
42.12 as Section 21(c) and changing the nomenclature of “probation” to
“community supervision”).

10 It might be argued that what was thought to be the former common

law requirement that the State prove that the probationer’s failure to pay was
intentional has thus now been expressly incorporated into the statute. But this
Court seems to have concluded otherwise, in 2012. See Gipson v. State, 383
S.W.3d 152, 159 n.3 (Tex. Crim. App. 2012) (“[W]e conclude that the 2007
amendment dispensed with [the common-law] requirement [that the State
prove intentionality] with respect to the payments listed in the statute
because, by its plain language, the ability-to-pay statute requires only that the
State demonstrate . . . that the defendant was able to pay and did not.”).
Nonetheless, prior to the 2007 amendment, it was thought that the common
law required the State to prove intentionality notwithstanding the statute. See
Stanfield, 718 S.W.2d at 738 (“We conclude the State still has the burden of
proving an alleged failure to pay fees, costs and the like was intentional.”).
Indeed, it was Stanfield’s conclusion with respect to intentionality that
essentially rendered its observations about the meaning of “alleged only” in the
statute pure obiter dicta. In any event, we need not revisit the question of the
burden (if any) with respect to intentionality today.
BRIMZY – 15

that time. 11 Thus, since 1981, the failure-to-pay statute has expressly
applied “[i]n a [probation/community supervision] revocation hearing at
which it is alleged only that” certain required payments were not made.
(Emphasis added). The major changes since the 1981 amendment
include re-assigning the burden of proof on ability (and, perhaps, also
now, intentionality 12) to the State, and the deletion of some of the
original enumerated costs, namely, “restitution” and “reparations[.]”
III. THE COURTS OF APPEALS ARE SPLIT
The courts of appeals are split into two camps with respect to the
meaning of the word “only” as it currently appears in Article
42A.751(i). 13 Courts of appeals in the first camp, which includes the
Fourteenth Court of Appeals in this case, have read the failure-to-pay
statute consistently with Stanfield’s construction. See Brimzy, 2024 WL

11 Article 42A.751(i) itself was amended in 2017, but that amendment

is not relevant to the question of what “alleged only” means in the context of
the provision. The 2017 amendment removed the phrase “compensation paid
to appointed counsel” and replaced it with the phrase “and by failing to pay the
costs of legal services as described by Article 42A.301(11)[.]” Acts 2017, 85th
Leg., ch. 324, § 23.014(a), p. 953, eff. Sept 1, 2017; see note 1, ante.

12 See note 10, ante.

13 The first camp includes the Second, Thirteenth, and Fourteenth
Courts of Appeals. See Brown v. State, 354 S.W.3d 518, 520 n.3 (Tex. App.—
Fort Worth 2011, pet. ref’d); Scales v. State, 658 S.W.3d 366, 372−73 (Tex.
App.—Corpus Christi 2022, no pet.); Brimzy v. State, 2024 WL 1313406, at *1.
The second camp includes the Seventh, Ninth, and Twelfth Courts of Appeals.
See Johnson v. State, No. 07-19-00031-CR, 2019 WL 2872292, at *4 (Tex.
App.—Amarillo July 3, 2019) (mem. op., not designated for publication); Bush
v. State, Nos. 09-18-00414-CR & 09-18-00424-CR, 2019 WL 2607592, at *2
(Tex. App.—Beaumont June 26, 2019) (mem. op., not designated for
publication); Rushing v. State, No. 12-21-00052-CR, 2022 WL 868715 (Tex.
App.—Tyler Mar. 23, 2022, no pet.) (mem. op., not designated for publication).
BRIMZY – 16

1313406 at *5. That is to say, they have read “only” essentially to mean
“at the very least.” They have therefore applied the failure-to-pay
statute to all cases in which nonpayment is at least one of the grounds
alleged and pursued for revocation. Id. at *4; Scales v. State, 658 S.W.3d
366, 372–73 (Tex. App.—Corpus Christi 2022, no pet.).
These courts of appeals have concluded that a literal reading of
the failure-to-pay statute, which would apply only when nonpayment is
the sole ground alleged and pursued by the State, results in an absurdity
that the Legislature could not possibly have intended. Brimzy, 2024 WL
1313406 at *4; Scales, 658 S.W.3d at 372–73. The absurd result, in those
courts of appeals’ opinion, is allowing the State to allege frivolous
grounds for revocation in addition to failure to pay, just to avoid the
additional burden that the failure-to-pay statute would impose. 14 Brown
v. State, S.W.3d 518, 520 n.3 (Tex. App.—Fort Worth 2011, pet. ref’d)
(citing Stanfield, 718 S.W.2d at 736).
Additionally, these courts of appeals relied heavily upon their
own perception of the legislative history and what they believed to be
the legislative intent behind the law. See Brimzy, 2024 WL 1313406 at
*4; Scales, 658 S.W.3d at 372–73. These courts of appeals have insisted
that the Legislature was aware of Stanfield’s construction of the word
“only” when it drafted the 2007 amendment to the statute that re-
assigned the burden of proof to the State. Brimzy, 2024 WL 1313406 at
*5. Therefore, they have concluded, the Legislature must have intended
to use the Stanfield meaning of “only” when crafting the new statute. Id.

14 But see TEX. R. PROF. COND. Rule 3.01 (“A lawyer shall not bring or

defend a proceeding, or assert or controvert an issue therein, unless the lawyer
reasonably believes that there is a basis for doing so that is not frivolous.”).
BRIMZY – 17

What is more, these courts of appeals have bolstered their position by
arguing that Stanfield’s definition of the word “only” is consistent with
the due process requirements announced in Bearden, and they believe
the legislative history shows that the 2007 amendment was passed to
accommodate that very due process decision by the United States
Supreme Court. Id.
Some other Texas courts of appeals have read the failure-to-pay
statute consistently with what they perceive to be its plain language.
See, e.g., Rushing v. State, No. 12-21-00052-CR, 2022 WL 868715 (Tex.
App.—Tyler Mar. 23, 2022, no pet.); Johnson v. State, No. 07-19-00031-
CR, 2019 WL 2872292, at *4 (Tex. App.—Amarillo July 3, 2019) (mem.
op., not designated for publication). Rushing, for example, distinguished
Stanfield’s construction of “only” and relied on the widely accepted
meaning of the word as a limiting adverb. See id. at *3. Thus, the court
of appeals concluded there that, the failure-to-pay statute applies
exclusively when the State’s sole allegation is nonpayment. Rushing
refused to “presume that the Legislature unintentionally included the
word ‘only’ or intended that it be ignored.” Id. (citing Wagner v. State,
539 S.W.3d 298, 306 (Tex. Crim. App. 2018)). Finally, these courts of
appeals seem to have rejected the proposition that to apply the failure-
to-pay statute in this more restrictive way leads to absurd results.
Rushing, 2022 WL 868715 at *3.
With this statutory history and description of the competing
courts of appeals’ viewpoints in mind, we now address the proper scope
of Article 42A.751(i).
BRIMZY – 18

IV. ANALYSIS
A. Statutory Construction
In construing a statute, a reviewing court begins with “its literal
text[.]” Chiarini v. State, 442 S.W.3d 318, 320 (Tex. Crim. App. 2014). If
the meaning of a statutory word is plain, when read in context and in
accordance with the rules of grammar and common usage, then that is
the meaning the reviewing court should attribute to the Legislature.
Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). The
reviewing court may not deviate from the literal text unless “the text
does not bear a plain contextual meaning,” or “the text’s unambiguous
meaning would lead to” absurd results the Legislature could not have
intended. Timmins v. State, 601 S.W.3d 345, 348 (Tex. Crim. App. 2020).
B. Is the Meaning Plain?
So, is the meaning of the word “only”—as an adverb modifying
“alleged” in Article 42A.751(i)—ambiguous, or is its import to be
regarded as plain when read in the context of the statutory scheme,
according to the rules of grammar and common usage, and in light of the
statute’s history of amendments? The Court has said that a statute is
ambiguous if reasonably informed persons would understand it to be
susceptible to two or more different interpretations. State v. Green, 682
S.W.3d 253, 264 (Tex. Crim. App. 2024). Moreover, in considering an
amended statute, the Court has also said that reviewing courts typically
consider the amended statutory language as if it had originally been
enacted in its amended form. Id. at 266.
The parties in this case do not seriously dispute that the meaning
of the word “only” in Article 42A.751(i) is plain enough—at least when
BRIMZY – 19

read in context and as if the statute had been originally enacted in what
is essentially its current form, in 2007. 15 The word “only” operates in the
context of the statute as an adverb, directly modifying the transitive
verb “alleged.” The direct object of that transitive verb—the thing that
completes its meaning—is the clause that comes directly after the word
“that” in the sentence, namely: “the defendant violated the conditions of
community supervision by failing to pay” community supervision fees,
court costs, or the cost of legal services. TEX. CODE CRIM. PROC. art.
42A.751(i). The most natural meaning to attribute to the word “only” in
this context is the primary definition (in its adverbial form) in the
dictionaries we have consulted; to wit: “as just the one simple thing and
nothing more or different[,]” or “[w]ithout anything or anyone else:
ALONE[.]” 16 According to this definition, the last clause of the sentence,

15Besides being simply recodified in Chapter 42A in 2015, with no
substantive change, Article 42A.751(i) has been amended again only once, in
2017. See note 13, ante. As we have already observed, nothing about the 2017
amendment could be read as affecting the meaning of “alleged only” as it
appears in the context of the provision as a whole.

16 See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE UNABRIDGED, at 1577 (2002), and WEBSTER’S II NEW
COLLEGIATE DICTIONARY, at 765 (1999), respectively. Both dictionaries also
provide, as alternatives for the adverbial form of “only,” the definition “at the
very least[.]” Id. But we note that in the illustrations given of the use of the
word “only” in this sense, the adverb precedes the transitive verb instead of
following it, as in Article 42A.751(i). See WEBSTER’S II, at 765 (“I only ask that
justice be done.”); see also THE AMERICAN HERITAGE COLLEGE DICTIONARY, at
954 (3d ed. 2000) (giving as an example of “at the very least”: “if you would only
come home.”). It seems highly doubtful, even in 1977—notwithstanding the
obiter dictum to the contrary in Stanfield—that the Legislature meant for
“only” to be understood in this less-common sense when it deliberately added
the word “only” in S.B. 32 (causing it to be enacted after S.B. 61) and then later
expressly repealed the version of Section 8(c) that did not include “only” while
deliberately amending the version that did. See note 8, ante. It would be
BRIMZY – 20

which assigns a burden to the State, applies only “[i]n a revocation
hearing at which it is alleged” that a failure to pay the enumerated fees,
“and nothing more or different[,]” has occurred. By this plainly evident
understanding of the statute, any time the State proceeds at the
revocation hearing upon a pleading that contains allegations beyond the
“simple” claim of nonpayment of one of the enumerated fees, the
statutory condition is not triggered, and the State has no burden (at
least none imposed by the statute) to prove that the probationer could
have paid but did not.
C. The Prior-Construction Canon
The court of appeals declined to follow this most natural reading
of the statute, however, because of this Court’s “guidance in Stanfield,”
and “the legislative history of amendments to the statute[.]” Brimzy,
2024 WL 1313406, at *4, *5. Albeit without expressly saying so, the
court of appeals thus seems to have relied on the prior-construction
canon. In its purest form, that canon provides: “If a word or phrase [in a
statute] has been authoritatively interpreted by the highest court in a
jurisdiction, . . . a later version of that [statute] perpetuating the
wording is presumed to carry forward that interpretation.” Antonin
Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS, at 322 (2012). In Appellant’s reply brief, she now specifically

exceedingly odd to think the Legislature would go to such lengths to retain a
word in a statute that it did not intend to carry its most natural meaning. Were
we to construe current Article 42A.751(i) in accordance with the obiter dictum
in Stanfield, it would effectively read the word “only” out of the statute. But in
construing a statute, a reviewing court must presume that every word therein
has a purpose that should be given effect if reasonably possible. Wagner, 539
S.W.3d 298, 306 (Tex. Crim. App. 2018); TEX. GOV’T CODE § 311.021(2).
BRIMZY – 21

invokes the prior-construction canon to argue that this Court’s
interpretation of the adverb “only” in Stanfield should control our
construction of the phrase “alleged only” in current Article 42A.751(i).
We disagree. This Court has explained that, “when there has been
no settled interpretation of the statutory phrase about which the
[L]egislature could have been made aware, the [prior-construction]
presumption does not apply.” Watkins v. State, 619 S.W.3d 265, 281
(Tex. Crim. App. 2021); see also Scalia & Garner, at 326 (“[W]e
emphasize that [the prior-construction canon] applies only to presumed
legislative approval of prior judicial . . . interpretations in statutes
adopted after those interpretations.”). Because, as we have shown,
Stanfield’s construction of “only” was pure dicta, it did not constitute a
settled interpretation of the statutory phrase. “Moreover, the general
rule that a later statute will be interpreted in accordance with a judicial
construction of a prior statute does not apply where the later statute is
unambiguous.” 82 CJS Statutes § 466, at 651 (2022). Given these
qualifications to the prior-construction canon, we reject the court of
appeals’ construction and Appellant’s reliance on it here, for the
following reasons.
Principally, as we have explained, the text of current Article
42A.751(i) is unambiguous with respect to how the adverb “only” should
operate within it. That being so, we will not invoke the prior-
construction canon to distort it. In any event, even if we believed it would
be appropriate to invoke the prior-construction canon despite the lack of
ambiguity, it would not avail Appellant at all given the statutory history
as we have outlined it above. We reach this conclusion for two reasons.
BRIMZY – 22

First, as we have shown, the Court’s remarks in Stanfield—with
respect to what it regarded as the preferred construction of “only” in one
of the competing versions (S.B. 32) of former Article 42.12, Section 8(c)—
were pure obiter dicta, meaning that they were utterly unnecessary to
the Court’s disposition of the case. As such, those observations do not
provide an authoritative prior construction that would serve to bind us
now. They certainly do not present a compelling reason to ignore the
otherwise plain import of the word “only” in the current iteration of the
statute.
The second reason we decline to invoke the prior-construction
canon to alter the plain meaning of Article 42A.751(i) is because of the
timing of the Court’s decision in Stanfield. In applying the prior-
construction canon, the court of appeals appears to have focused its
attention on the 2007 amendment to then-Article 42.12, Section 21(c),
wherein the Legislature shifted the burden of proof on the issue of ability
to pay from the probationer back to the State. Brimzy, 2024 WL
1313406, at *4. Because that amendment came after Stanfield was
decided, the court of appeals was able to presume that the Legislature
had before it a construction of the word “only” that it could fall back on
as the established meaning for purposes of subsequent enactments.
But the court of appeals skipped a step—it failed to account for
the 1981 amendment. There, the Legislature united the two competing
versions of former Article 42.12, Section 8(c), as it had been passed in
1977. In doing so, the Legislature quite deliberately retained the adverb
“only” as it had first appeared in S.B. 32—and it did so more than five
years before Stanfield was decided. Under these circumstances, we
BRIMZY – 23

cannot presume that the 1981 legislative fix was meant to incorporate
Stanfield’s peculiar construction of “only,” since it did not yet exist at the
time of that amendment.
We likewise refuse to presume, as the court of appeals did, that
in passing a subsequent amendment, in 2007, the Legislature tacitly
chose Stanfield’s peculiar construction of “only” over the plain-language
construction it had all but certainly adopted in its 1981 unification of
1977’s competing Section 8(c)’s. For this reason, as well, we do not
regard application of the prior-construction canon as a reliable basis to
justify deviating from the otherwise clear import of the language of
current Article 42A.751(i). “Only,” as used in the statute means “only,”
as understood in common parlance, not “at the very least.”
D. Is the Result Absurd?
Absurd results are those “that the Legislature could not possibly
have intended[.]” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.
1991). The absurdity doctrine provides only a narrow exception to the
general rule to effectuate plain language because reviewing courts must
presume that the Legislature does not act in absurd ways. Id. Moreover,
judicial disagreement with a legislative policy decision does not equate
with an absurd result. Cockrell v. State, ___ S.W.3d ___, PD-0760-24,
2025 WL 2417047, at *4 (Tex. Crim. App. Aug. 20, 2025). Reviewing
courts are not at liberty to “construe a statute in a manner that
substitutes what [they] believe is right or fair for what the Legislature
has written.” Ex parte Kibler, 664 S.W.3d 220, 233 (Tex. Crim. App.
2022). Simply put, reviewing courts do not disturb policy decisions of the
Legislature. Id.
BRIMZY – 24

So, would it be patently absurd for the Legislature to impose a
burden of proof on the State “in a revocation hearing”—but only when
the State has “alleged only”—that is to say, alleged “nothing more or
different” than—nonpayment? 17 Guided by Stanfield, the court of
appeals believed so—if only because it believed, like the Stanfield Court,
that the failure to impose the burden under broader circumstances
would encourage the State to proceed in bad faith, alleging other claims
in support of revocation/adjudication despite knowing it had an
insufficient basis to prove those claims. Brimzy, 2024 WL 1313406, at
*5; see also Scales, 658 S.W.3d at 372 (concluding that application of
Article 42A.751(i)’s plain meaning would be “absurd” because it would
“reward[] the State for alleging additional violations that the trial court
ultimately found unconvincing”).
But here again, we conclude that Stanfield does not control.
Whatever absurdity Stanfield may have perceived in construing “only”
in its most natural sense in the context of a statute assigning the burden
of proof on the issue of ability to pay to the probationer does not
necessarily apply now that the statute re-assigns the burden to the
State. In restoring the burden of proof to the State in 2007, the
Legislature may well have made a deliberate policy choice to limit its
application to cases in which the State opts to proceed only on an
allegation of nonpayment, as a way of encouraging the State to rely upon
grounds more substantial than mere nonpayment of fees or costs,
whenever possible, to adjudicate guilt or revoke community supervision.

17 TEX. CODE CRIM. PROC. art. 42A.751(i); see WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY, at 1577 (“as just the one simple thing and
nothing more or different”).
BRIMZY – 25

“[T]he fundamental fairness required by the Fourteenth
Amendment” Due Process Clause, the United States Supreme Court has
said, prohibits a trial court from revoking a probationer’s community
supervision and then imprisoning him for failure to pay probationary
assessments if he “has made bona fide efforts to pay.” Bearden, 461 U.S.
at 672. To protect a probationer’s due process right, Bearden imposed a
duty on the trial court to “inquire into the reasons for the failure to pay.”
Id. But Bearden said nothing about whether or how to assign a burden
of proof on the issue of the probationer’s ability to pay, instead assigning
a due process obligation on the trial court sua sponte to inquire. Id.
Due process does not obligate state legislatures to pass statutes
that assign a burden of proof to the State. That the Texas Legislature
has done so means it has provided greater protection to probationers
than due process requires. But the Legislature is free, consistent with
due process, to circumscribe the application of that greater protection,
for policy reasons. Cf. Rushing v. State, 85 S.W.3d 283, 285−86 (Tex.
Crim. App. 2002) (when the Legislature confers rights by statute that
exceed the constitutional minimum, it may limit the application of those
statutorily conferred rights); Moon, 667 S.W.3d at 804 n.11 (same).
It would also not be inconsistent with Bearden for the Legislature
to impose a burden on the State only under these narrow circumstances.
The Legislature might have decided that such a heightened burden was
most appropriate when a probationer’s ability to pay would necessarily
prove to be the decisive issue in a hearing to revoke or adjudicate guilt—
namely, when that is the only issue upon which the State’s pleading
purports to proceed at the hearing itself. And, by limiting the greater
BRIMZY – 26

protection of an assigned burden on the State to this circumstance, the
Legislature might have sought to encourage the State, whenever
possible, to proceed to revoke or adjudicate on grounds beyond the
failure to pay, since that ground, when pursued alone, is fraught with
due process complications. It is not innately absurd to think that the
Legislature would choose to add more protection than what due process
requires—but only under these limited circumstances.
What is more, it does not necessarily demonstrate an absurd
result that a prosecutor might try to thwart the intended operation of
the statute, as plainly construed, by alleging a patently baseless ground
for revocation/adjudication simply to avoid assuming the statutory
burden. A prosecutor is ethically bound to refrain from bringing such
frivolous claims. See TEX. R. PROF. COND. Rule 3.01 (“A lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein,
unless the lawyer reasonably believes that there is a basis for doing so
that is not frivolous.”). Prosecutors may act in many ways, intentionally
or not, that could subvert criminal proceedings, but “[t]he primary
safeguard against abuses is . . . the ethical responsibility of the
prosecutor.” United States v. Ash, 413 U.S. 300, 320 (1973). Both the
court of appeals and Appellant would have us believe that prosecutors—
and the State generally—would jump at the chance to be deliberately
manipulative in this way. But the Legislature is entitled to enact law
under the assumption that a prosecutor’s “primary duty” to “see that
justice is done” will abide. See Grey v. State, 298 S.W.3d 644, 651 (Tex.
Crim. App. 2009) (citing TEX. CODE CRIM. PROC. art. 2.01). And the
Legislature might well have reasoned that justice is better served in any
BRIMZY – 27

given revocation or adjudication hearing if colorable claims of probation
violations—beyond those of mere nonpayment of fees or costs—are in
play.
Finally, the Legislature would not act “irrationally” to enact such
a circumscribed statute with the understanding that, even if ethical
safeguards were to fail, “review remains available under due process
standards.” 18 Ash, 413 U.S. at 320. If a prosecutor were to allege purely
frivolous claims in a revocation/adjudication motion merely to avoid the
statutory burden, then the trial court would presumably revoke, if at all,
based on nonpayment alone. Under those circumstances, Bearden’s due
process protections would be triggered, requiring the trial court to
determine that the probationer’s nonpayment was willful—i.e., that the
probationer could pay but did not—before imposing imprisonment on
the probationer. Id. at 667. 19 It is not absurd to suppose that the

18 See Brimzy, 2024 WL 1313406, at *4 (quoting this Court’s
characterization, in Stanfield, of a plain-view construction of “alleged only” in
addressing the competing versions of former Article 42.12, Section 8(c), as
“irrational”).

19 To be clear, we are not here addressing Appellant’s due process claim

that she raised in the court of appeals. That court concluded she failed to
properly preserve that claim. See Brimzy, 2024 WL 1313406 at *2. Rather, our
discussion of Bearden is intended to emphasize that a plain-view reading of the
failure-to-pay statute does not render absurd results, since a prosecutor’s
impulse to manipulate will be held in check through ethical obligations, and
due process principles will still serve to protect the interests of the probationer
in any event. None of this is to say that Appellant could not eventually litigate
the gist of her due process claim under some other constitutional guise, such
as the ineffective assistance of counsel, in a post-conviction application for writ
of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.09.
BRIMZY – 28

Legislature might have passed Article 42A.751(i)’s limited burden of
proof while mindful of this due process failsafe. 20
We conclude that Article 42A.751(i), the failure-to-pay statute, is
not absurd when read according to its plain dictates. The Legislature
could rationally have intended to impose a higher burden on the State
in limited situations, and because ethical and due process safeguards
protect a probationer in the unlikely event that a prosecutor should
scheme to avoid his burden under the statute. We will not condone
deviating from the plain import of the statute on account of absurdity
when no actual absurdity is discernable.
V. CONCLUSION
Here, the motion to adjudicate alleged grounds in addition to
Appellant’s nonpayment of supervision fees; indeed, the State pursued
those additional grounds in the revocation/adjudication hearing. Under
these circumstances, Article 42A.751(i) does not assign an additional
burden of proof to the State—even where, as here, the trial court
ultimately ordered adjudication based on the nonpayment ground alone.
The court of appeals erred to conclude that the trial court’s order was
invalid on the ground that the State failed to satisfy a statutory burden

20 The absurdity doctrine does not justify judicial rejection of outcomes

that are merely “odd” or (in Stanfield’s description, “anomalous”); instead, it is
“meant to correct obviously unintended dispositions, not to revise purposeful
dispositions that, in light of other provisions of the applicable code, make little
if any sense.” Scalia & Garner, at 237, 239. Accordingly, even if we agreed that
applying the plain meaning of “alleged only” in Article 42A.751(i) would result
in “anomalous” consequences, Stanfield, 718 S.W.2d at 737, that would not by
itself justify our application of the absurdity doctrine to avoid them. Instead,
another legislative fix would be required. Getts v. State, 155 S.W.3d 153, 158
(Tex. Crim. App. 2005).
BRIMZY – 29

to show that Appellant was able to, but did not, pay her community-
supervision fees. The State acquired no such burden in this case.
The judgment of the court of appeals is reversed and the trial
court’s order to adjudicate is reinstated.

DELIVERED: October 30, 2025
PUBLISH