Ability to Pay

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State Statute Description/Statute Name Statutory language Level of offense Definition of ability to pay Timeline Burden of proof Method of determination Mandatory Remedies if unable to pay
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Arkansas Ark. Code Ann. § 5-4-205(e)(2);(f)(3) Restitution

(e)(2)In determining the method of payment, the court shall take into account: (A) The financial resources of the defendant and the burden that payment of restitution will impose with regard

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to another obligation of the defendant; (B) The ability of the defendant to pay restitution on an installment basis or on another condition to be fixed by the court; and (C) The rehabilitative effect on the defendant of the payment of restitution and the method of payment....(f) (3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider: (A) The defendant's employment status; (B) The defendant's earning ability; (C) The defendant's financial resources; (D) The willfulness of the defendant's failure to pay; and (E) Any other special circumstances that may have a bearing on the defendant's ability to pay.

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"The financial resources of the defendant and the burden that payment of restitution will impose with regard to another obligation of the defendant; The ability of the defendant to pay

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restitution on an installment basis or on another condition to be fixed by the court."

Not provided for Not provided for Determined by judge after hearing Yes Not provided for
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Arkansas Ark. Const. Art. 2, § 9 Excessive Bail or Punishment Prohibited -- Witness -- Detention

Excessive bail shall not be required; nor shall excessive fines be imposed; nor shall cruel or unusual punishments be inflicted; nor witnesses be unreasonably detained.

All

Fines cannot be "excessive".

Not provided for Not provided for Not provided for Yes Not provided for
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Arkansas Ark. Code Ann. § 5-4-303(f) Conditions of Suspension or Probation

(1) If the court suspends imposition of sentence on a defendant or places him or her on probation conditioned upon his or her making restitution under subdivision (c)(6) of this section,

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the court, by concurrence of the victim, defendant, and the prosecuting authority, shall determine the amount to be paid as restitution. (2) After considering the assets, financial condition, and occupation of the defendant, the court shall further determine: (A) Whether restitution shall be total or partial; (B) The amounts to be paid if by periodic payments; and (C) If a personal service is contemplated, the reasonable value and rate of compensation for the personal service rendered to the victim.

All Not provided for Before imposition of fine or fee Not provided for Not provided for Yes Not provided for
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Arkansas Ark. Code Ann. § 16-93-104(b)-(d) Supervision Fee -- Direct Payment by Offender -- Failure to Pay

(b) (1) When an offender on probation defaults in the payment of supervision fees or any installment thereof, the court may require the offender to show cause why he or

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she would not be imprisoned for nonpayment. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so to the court in writing, under oath, and the court so finds. (3) Unless the offender shows that his or her default was not attributable to a purposeful refusal to obey the sentence of the court or to a failure on his or her part to make a good faith effort to obtain the funds required for payment, the court may order the defendant imprisoned until the payments are made. (4) If the court determines that the default in payment is not attributable to the causes specified in subdivision (b)(3) of this section, the court may enter an order allowing the offender additional time for payment, reducing the amount of each installment, or revoking the fees or the unpaid portion thereof in whole or in part. (c) (1) The offender on parole may be imprisoned for violation of parole if the offender is financially able to make the payments and if the payments are not made and the Parole Board so finds, subject to the limitations set out in this subsection. (2) The offender shall not be imprisoned if the offender is financially unable to make the payments and states so under oath to the Parole Board in writing, and the Parole Board so finds. (d) Court costs under § 16-10-305 shall be collected in full before any fees are collected under this section.

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"The offender is financially unable to make the payments."

Not provided for Burden on defendant to show inability to pay Determined by judge without hearing Yes

Additional Time, Reduced Payments, Revoke Fees.

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Arkansas Ark. Code Ann. § 5-65-114   Inability to Pay -- Alternative Public Service Work

If a court finds that a person against whom fines, fees, or court costs are levied for violating this chapter is financially unable to pay the fines, fees, or costs,

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the court shall order the person to perform public service work as the court determines is appropriate.

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"Financially unable to pay the fines, fees, or costs."

Not provided for Not provided for Not provided for Yes

Community Service.

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Arkansas Ark. Code Ann. § 5-4-303(g)(2)(B) Conditions of Suspension or Probation

The amount of the assessed attorney's fee shall be commensurate with the defendant's ability to pay.

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Waiver/Reduction of Fee.

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Arkansas A.C.A. § 5-2-331 Cost of Mental Health Services, Examination, and Treatment of Defendant

Rules establishing reasonable charges for the cost of treatment or other mental health services under this section shall provide for waiving or postponing the collection of the charges based on:

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(A)  Clinical considerations; (B)  The defendant's inability to pay; or (C)  A court determination that the defendant is wholly or partly indigent and qualifies for the appointment of an attorney under § 16-87-213.

All Not provided for At enforcement of fine or fee Not provided for Administrative decision No Not provided for
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Arkansas A.C.A. § 16-13-704 Installment Payments -- Definition

(a) (1)  If the court concludes that the defendant has the ability to pay the fine, but that requiring the defendant to make immediate payment in full would cause a severe and

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undue hardship for the defendant and the defendant's dependents, the court may authorize payment of the fine by means of installment payments in accordance with this subchapter;  (d)  "Ability to pay" means that the resources of the defendant, including all available income and resources, are sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence compatible with health and decency.

All

"The resources of the defendant, including all available income and resources, are sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence

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compatible with health and decency."

Before imposition of fine or fee Not provided for Not provided for No Not provided for
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Texas Tex. Code Crim. Proc. Art. 37.073 Repayment of Rewards

(a) After a defendant has been convicted of a felony offense, the judge may order a defendant to pay a fine repaying all or part of a reward paid by a

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crime stoppers organization.

(b) In determining whether the defendant must repay the reward or part of the reward, the court shall consider: (1) the ability of the defendant to make the payment and the financial hardship on the defendant to make the required payment; and (2) the importance of the information to the prosecution of the defendant as provided by the arresting officer or the attorney for the state with due regard for the confidentiality of the crime stoppers organization records.

Felony

Not provided for

Before imposition of fine or fee Not provided for Other Yes

Nonpayment or partial payment/

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Texas Tex. Code Crim. Proc. Art. 42A.452 Treatment, Specialized Supervision, or Rehabilitation

On a finding that the defendant is financially able to make payment, the judge shall require the defendant to pay a reimbursement fee for all or part of the reasonable

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and necessary costs of the treatment, supervision, or rehabilitation.

Felony

Not provided for

Before imposition of fine or fee Not provided for Not provided for Yes

None specified

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Texas Tex. Code Crim. Proc. Art. 42A.408(f) Use of Ignition Interlock Device

If the court determines the defendant is unable to pay for the ignition interlock device, the court may impose a reasonable payment schedule not to exceed twice the length of

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the period of the court’s order.

All

Not provided for

Before imposition of fine or fee Not provided for Not provided for No

Reasonable payment schedule

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Texas Tex. Code Crim. Proc. Art. 42A.303(f) Substance Abuse Felony Program

In establishing the amount of a fee under Subsection (d)(2), the judge shall consider fines, fees, and other necessary expenses for which the defendant is obligated. The judge may not:

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(1) establish the fee in an amount that is greater than 25 percent of the defendant's gross income while the defendant is a participant in residential aftercare; or (2) require the defendant to pay the fee at any time other than a time at which the defendant is both employed and a participant in residential aftercare.

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N/A

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

N/A

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Texas Tex. Code Crim. Proc. Art. 102.020(j) Costs Related to DNA Testing [Repealed Effective January 1, 2020]

The court may waive the imposition of a court cost under this article if the court determines that the defendant is indigent and unable to pay the cost.

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Indigent and unable to pay the cost

Before imposition of fine or fee Not provided for Not provided for No

Not provided for

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Texas Tex. Code Crim. Proc. Art. 102.018(b) Reimbursement Fees and Expenses Attendant to Intoxication Convictions

Except as provided by Subsection (d), on conviction of an offense relating to the driving or operating of a motor vehicle punishable under Section 49.04(b), Penal Code, the court shall impose

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as a reimbursement fee on the defendant an amount that is equal to the reimbursement fee of an evaluation of the defendant performed under Article 42A.402(a). Reimbursement fees imposed under this subsection are in addition to other court costs and are due whether or not the defendant is granted community supervision in the case, except that if the court determines that the defendant is indigent and unable to pay the fee, the court may waive the imposition of the fee

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Indigent

Before imposition of fine or fee Not provided for Not provided for No

Fee waiver

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Texas Tex. Code Crim. Proc. Art. 43.03(c) Payment of Fine

A court may not order a defendant confined under Subsection (a) of this article unless the court at a hearing makes a written determination that:(1) the defendant is not indigent

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and has failed to make a good faith effort to discharge the fines and costs; or (2) the defendant is indigent and: (A) has failed to make a good faith effort to discharge the fines and costs under Article 43.09(f); and (B) could have discharged the fines and costs under Article 43.09 without experiencing any undue hardship.

All

For the purpose of establishing a right to representation by counsel, “indigent” means a person who is not financially able to employ counsel: Tex. Code Crim. Proc. art. 1.051.

At enforcement of fine or fee Not provided for Determined by judge after hearing Yes

None specified

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Texas Tex. Code Crim. Proc. Art. 42A.751(i) Violation of Conditions of Community Supervision; Detention and Hearing

(i) In a revocation 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

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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 as ordered by the judge.

All

Not provided for

At enforcement of fine or fee Burden on government to show ability to pay Determined by judge after hearing Yes

None specified

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Texas Tex. Code Crim. Proc. Art. 26.05(g) Compensation of Counsel Appointed to Defend

If the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the

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defendant in accordance with Article 1.051(c) or (d), including any expenses and costs, the judge shall order the defendant to pay during the pendency of the charges or, if convicted, as a reimbursement fee the amount that the judge finds the defendant is able to pay.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Pay only attorney fee that defendant can afford to pay.

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Texas Tex. Code Crim. Proc. art. 42.038(c)-(d) Reimbursement for Confinement Expenses

(c) A judge may not require reimbursement under this article if the judge determines the defendant is indigent based on the defendant’s sworn statement or affidavit filed with the court.

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A court that requires reimbursement under this article may require the defendant to reimburse the county only for those days the defendant is confined after the date of conviction or on which a plea of guilty or nolo contendere was entered. The court may not require a defendant to reimburse the county for those days the defendant was confined after arrest and before the date of conviction or on which the plea of guilty or nolo contendere was entered.

(d) The court, in determining whether to order reimbursement under this article, shall consider: (1) the defendant’s employment status, earning ability, and financial resources; and (2) any other special circumstances that may affect the defendant’s ability to pay, including child support obligations and including any financial responsibilities owed by the defendant to dependents or restitution payments owed by the defendant to a victim.

Misdemeanor

The defendant’s employment status, earning ability, and financial resources; and any other special circumstances that may affect the defendant’s ability to pay, including child support obligations and including any financial

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responsibilities owed by the defendant to dependents or restitution payments owed by the defendant to a victim.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

May not require reimbursement.

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Texas Tex. Code Crim. Proc. Art. 42A.652(b) Monthly Reimbursement Fee

The judge may make payment of the monthly reimbursement fee a condition of granting or continuing the community supervision. The judge may waive or reduce the reimbursement fee or suspend

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a monthly payment of the fee if the judge determines that payment of the reimbursement fee would cause the defendant a significant financial hardship.

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"significant financial hardship"

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Waive or reduce the reimbursement fee or suspend a monthly payment of the fee

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Texas Tex. Code Crim. Proc. Art. 42.037(h) Restitution

(h) If a defendant is placed on community supervision or is paroled or released on mandatory supervision, the court or the parole panel shall order the payment of restitution ordered

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under this article as a condition of community supervision, parole, or mandatory supervision. The court may revoke community supervision and the parole panel may revoke parole or mandatory supervision if the defendant fails to comply with the order. In determining whether to revoke community supervision, parole, or mandatory supervision, the court or parole panel shall consider:
(1) the defendant’s employment status;
(2) the defendant’s current and future earning ability;
(3) the defendant’s current and future financial resources;
(4) the willfulness of the defendant’s failure to pay;
(5) any other special circumstances that may affect the defendant’s ability to pay; and
(6) the victim’s financial resources or ability to pay expenses incurred by the victim as a result of the offense.

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Consideration of the defendant’s employment status; the defendant’s current and future earning ability; the defendant’s current and future financial resources; the willfulness of the defendant’s failure to pay; any other special

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circumstances that may affect the defendant’s ability to pay; and the victim’s financial resources or ability to pay expenses incurred by the victim as a result of the offense.

At enforcement of fine or fee Not provided for Not provided for No

Will not revoke community supervision, parole, or mandatory supervision for failure to pay restitution as a condition.