How is restitution calculated in criminal cases?

Restitution in criminal cases is a court ordered requirement that a crime victim be restored back to where he or she was prior to the crime. There are three types of restitution: actual financial loss, actual damage, and damage directly resulting from the crime. The main purpose of restitution is to require the criminal to face his or her actions and pay back the person who was wronged. Under the Texas Constitution, Restitution is a guaranteed right of the crime victim.

Restitution in criminal cases is never automatic; in fact, a victim of a crime does not even have the right to sue a criminal defendant for restitution. The State does not allow a victim of a crime to become a party in a case against a criminal defendant. The prosecuting attorney must bring the suit in which restitution can occur.

Restitution in criminal cases begins with a request by the victim of the crime. In fact, the Texas Statute authorizing restitution expressly states that a crime victim must request restitution or the option is revoked. The Trial Court determines the amount of restitution at the punishment or sentencing stage of the trial. No jury is involved in the calculation of the damages. The Trial Court can determine the amount of the restitution in three ways. First, the restitution can be based on an agreement between the parties. Basically, this means that both parties negotiate to find an amount that they both agree upon. Next, the amount can be determined by an unchallenged presentence investigation. In a presentence investigation, probation officers compile a report regarding a criminal defendant’s criminal record, drug use, employment record, and financial stability. This investigation gives the crime victim a better idea of how much restitution the defendant could actually pay. Finally, if there is any disagreement about the amount of restitution, evidence may be presented at a separate court hearing. This standard of proof in such a hearing is preponderance of the evidence and the burden of showing that crime victim deserves a certain amount is placed upon the prosecuting attorney. The burden of proving what financial resources the defendant has available is on the defendant and the defendant’s attorney. The court may order the defendant to pay the restitution immediately, within a specific time period, or in specific installments.

The actual amount of the restitution is up to the Trial Court. The court may order the defendant to return the property. If returning the property is impossible, the court may order the defendant to pay the amount that the property was worth at sentencing or on the date of the destruction. These amount may be limited if the defendant returned any portion of the property in its original state.

At Guest and Gray Law Firm we are proud to be the most successful criminal defense firm in Kaufman County. One reason is that we have decades of Kaufman County experience. Our criminal defense team includes two former Kaufman County prosecutors, two former Kaufman County Bar Presidents, and the current State Bar Director for Kaufman County. No other firm has the same level of success or depth of local experience.

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