The statutory provision that restitution as a condition of deferral cannot exceed the amount of an assessed fine is intriguing. The amount of restitution that can be ordered under ordinary felony and misdemeanor probation is not limited by the maximum fine authorized for an offense but may be "in any sum that the court shall determine." If a defendant were charged with the Class C Misdemeanor of reckless destruction of property, for example, the actual damages may often exceed even the maximum allowable fine of $200. Or, in a worthless check case, the check may be in an amount of more than $200. The reason for tying restitution in Class C misdemeanors to the court's sanction limit is not immediately apparent. Since the matter of restitution is between the victim and the offender, the court does not, or, at least, should not, collect it. Still, as a matter of policy, the decision to so limit the amount may be supportable. An order of restitution of more than the potential fine would create a disincentive to compliance since the cost of compliance in money terms would be greater than noncompliance. Only in a few cases in which the personal cost of conviction to the defendant cannot be measured strictly in dollars, such as in a theft case, might a defendant be willing to pay a restitution amount in excess of the maximum fine.
Thomas E. Baker,
Probation for Class C Misdemeanors: To Fine or Not to Fine is Now the Question
, 22 S. Tex. L.J. 249
Available at: http://ecollections.law.fiu.edu/faculty_publications/176