DeGay v. State

711 S.W.2d 419, 1986 Tex. App. LEXIS 7827

• Court: Court of Appeals of Texas
• Decided: June 4, 1986
• Docket: No. 09-85-226-CR
• Status: Published

Opinions

OPINION

BROOKSHIRE, Justice.

Appeal from a revocation of probation proceedings. The Appellant had pleaded guilty to a felony theft charge on May 22, 1985, and was assessed punishment at 6 years confinement in the state penitentiary. The confinement sentence was then probated for 6 years, on certain terms and conditions. The motion to revoke probation was filed on July 12, 1985.

Condition (n) was to “[rjemain under custodial supervision in a community-based facility, namely: Jefferson Co. Restitution Center. Obey all rules and regulations of such facility and pay a percentage of his income, $7.00 per day to the facility for room and board. Probationer is to remain in such facility for (12) [months].” (Emphasis added)

In the order of revocation we find:

“... [Tjhe Court is of the opinion that the Defendant, AVERY DEGAY, violated the terms and conditions of his probation in this respect:

“[Cjondition (n) the defendant, Avery Degay violated the following rules of the Jefferson County Restitution Center: ‘Prohibited act # 116, refusing to obey an order of any staff member’, by failing to turn over his entire check to the Director of the Jefferson County Restitution Center on July 5, 1985....”

The “ ‘Prohibited act # 116, refusing to obey an order of any staff member’, by failing to turn over his entire check to the Director of Jefferson County Restitution Center” is the sole ground in the order of the court for revoking probation. We are constrained to affirm.

Appellant voluntarily testified in his own behalf. On direct examination, he admitted that he did not deliver his wage check for July 5, 1985. He had been ordered to do so by the Director of the Jefferson County Restitution Center, or by one of the staff members of the center. Hence, Appellant did not obey all of the rules and regulations of the facility, having refused to follow an order of a staff member of the center.

The district judge was empowered to commit Appellant to the Restitution Center. TEX.CODE CRIM.PROC.ANN art. 42.12, sec. 6e(a) (Vernon Supp.1986). We conclude that requiring Degay to obey the rules and regulations of the facility was not an improper delegation of authority to the Restitution Center to specify the terms and conditions of probation. Nor was such authorization an impermissible delegation of judicial power. Salmons v. State, 571 S.W.2d 29 (Tex.Crim.App.1978).

Since DeGay testified in court to a violation, the trial bench was presented with sufficient evidence to revoke probation. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980). We cannot hold that the trial bench abused its discretion.

AFFIRMED.