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Criminal Law No. 462-02, 6/25/2003. Click here for the full text of this decision FACTS: The court is asked to decide whether a condition of probation that prohibited Terry Rickels from going “within three hundred (300) feet of any premises where children 17 years or younger congregate or gather” was too vague to be enforced because the condition did not specify how the child safety zone was to be measured. HOLDING: Reversed and remanded. By failing to object to the terms and conditions of probation at trial, a defendant affirmatively waives any complaints he may have had. A distinction must be made, however, for those instances when a condition is imposed by way of an amendment to the probation order. Texas Code of Criminal Procedure article 42.12, �11(a) confers authority upon the trial court to “at any . . . time during the period of community supervision alter or modify the conditions.” Under these circumstances, the relevant inquiry is whether the probationer was given an opportunity to object to the modification. In this case, the court modified the terms of Rickels’s probation without a hearing, and Rickels had no opportunity to object. A court granting probation and its probationer have a contractual relationship. As such, the conditions of probation should be expressed clearly and explicitly so that the probationer understands what is expected of him. Conditions that prohibit a probationer from entering a certain area, such as the one in question, have come under judicial scrutiny due to their ambiguous terms. Such conditions have a tendency to be vague. Rickels argues that it was unclear as to how the distance was to be measured. Rickels argued that the police arbitrarily determined that the distance of 300 feet was to be measured from the property line of his residence to the property line of the school. The court’s reading of the condition presents no such dilemma. It prohibits Rickels himself from going within 300 feet of a child safety zone. It does not matter where his property lines fall. The only measurement that is at issue is from Rickels’ body to premises where children congregate. So it does not matter if Rickels’ property line is 250 feet or 400 feet from the school. What matters is whether Rickels himself went within 300 feet of it. In determining where the child safety zone begins, the court looks to a dictionary definition of the term “premises.” Black’s Law Dictionary defines premises as “[a] house or building, along with its grounds.” So in this instance, the property line of the school is indeed the proper boundary from which to measure. There is nothing vague about a measurement from Rickels’s body to the boundary line of the school. The court holds that the challenged condition was not too vague to be enforced. OPINION: Keasler, J.; Cochran, Holcomb, Hervey, Price and Meyers, JJ., join. Keller, P.J., concurred in the judgment. CONCURRENCE: Womack, J., Johnson, J., joins. “The Court’s description of probation as “contractual” ( see ante, at 4) is one with which I have recorded my disagreement elsewhere.(10) This case illustrates the point, since the condition that was involved is not one that the appellant contracted to obey; it was added “without a hearing, and Rickles had no opportunity to object” ( ante, at 4) or to decline to enter the so-called contract. I agree that “the conditions of probation should be” – indeed, must be – “expressed clearly and explicitly so that the probationer understands what is expected of him” ( ibid.), but that requirement is one of due process, not contract law. The proper analogy would be to a statute, which must be clear in order to be enforceable, but its enforceability does not depend on the law of contract.”

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