PD-0025-21 04/21/2021
1. “Is an objection required to preserve a challenge to restitution ordered payable to the Attorney General for a crime-victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam?”
2. “Alternatively, does a restitution order payable to the Attorney General for a crime-victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam qualify as victim compensation?”
3. “Alternatively, is a restitution order payable to the Attorney General for a crime-victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam a proper reimbursement cost?”
Tex. Code Crim. Proc. art. 42.073(a) authorizes a trial court to order restitution “to the compensation to victims of crime fund established under Subchapter B, Chapter 56, to the extent that fund has paid compensation to or on behalf of the victim.” Additionally, Tex. Code Crim. Proc. art. 42.073(b)(2) authorizes restitution to the fund to the extent paid “on behalf of the victim” who suffered personal injury. The trial court ordered Garcia to pay the Attorney General $1,000 in restitution to cover the cost of the victim’s forensic sexual assault exam. See Tex. Code Crim. Proc. art. 56.06(k)(1) (authorizing the AG to use crime-victim funds for a forensic medical exam). Garcia did not object to the order.
The court of appeals struck the order because it did not compensate the victim for her loss or injury. The court stated: “There was no testimony or other evidence that the victim either paid or was responsible for paying for any part of the cost of the examination conducted by the sexual assault nurse examiner or that the victim incurred any costs associated with the exam.”
The State argues that Garcia procedurally defaulted his claim because he did not object to the propriety of the order at trial. On the merits, the State contends that the Legislature’s use of “on behalf of a victim” implicitly means that the victim was a beneficiary of the exam. A sexual assault victim suffers physical and psychological harm and has a vested interest in seeing a perpetrator prosecuted and punished. And forensic evidence is crucial to sexual assault prosecutions. Regardless, the Legislature has the authority to determine who is a victim for purposes of restitution. Alternatively, the order should be upheld as a reimbursement cost despite its “restitution” label; the money reimburses the State for money expended towards an investigation and prosecution.
