1. Neither commit nor be convicted of any offense against the Laws of the State of Texas, or any other State of the United States of America.

2. Avoid injurious or vicious habits and abstain from the use of narcotic drugs in any form, and not use alcoholic beverages.

3. Avoid places and persons of harmful or disreputable character, including places where narcotic drugs are possessed, sold or used and not associate with persons who possess, sell or use narcotic drugs, and not associate with persons with criminal records.

4. Obtain and keep gainful employment in a lawful occupation.

5. Report to the Community Supervision Officer on the 10th day of April, 1997, and as directed thereafter unless otherwise directed by the Judge.

6. Permit the Community Supervision Officer to visit you at your home or elsewhere.

7. Remain within Bell County, Texas, unless permitted in writing to depart by the Judge of the 264th District Court.

8. Not leave the State of Texas, without the written consent of the Judge filed among the papers in this Cause.

9. Support your dependents that you now have or that you may acquire during the term of this community Supervision.

10. Report any change of address, change of job or arrest to the Community Supervision Officer within 48 hours.

11. Pay Court Costs in the amount of $186.50 dollars to the Community Supervision Officer,to be paid $4000 per month beginning 30 days after release from incarceration ($156.50 Court cost $30.00 Pre-Sentence Investigation fee).

12. Defendant shall pay the Community Supervision Officer restitution or reparation in the amount of $ 0 for the benefit of the injured parties, to be paid as follows: ______

13. Pay a supervisory fee to the Bell County Community Supervision Office, Belton, Texas, in the amount of $40.00 per month, on the 1st day of each month, beginning 05-01-97 and continuing during the term of community supervision. (All payments held in abeyance until 30 days after release from incarceration.)

14. Pay a fine in the amount of $750.00 through the Community Supervision Office of Bell County, Texas, at the rate of $10.00 per month, the first payment due and payable on 30 days after release from incarceration, and a payment of $10.00 due and payable every 1st day of each month.

15. Participate and cooperate in the local C.S.C.D.’s assessment, classification and habilitation/rehabilitation program.

16. Defendant will participate in substance abuse testing and will Submit a urine/saliva/breath specimen at the direction of the Community Supervision Officer, daily, if required or upon demand and pay $5.00 per month beginning 30 days after release from incarceration and continuing during the term of Community Supervision.

17. Defendant is ordered to perform 500 hours of Community Service work under the direction of his Community Supervision Officer at a rate of not less than 40 hours per week until such time as he has obtained a full time employment outside his home. The balance of said Community Service work shall then be reduced weekly so long as defendant has a full time employment and provides weekly proof to Community Supervision Officer.

18. Not own, possess, use or transport a firearm or ammunition.

19. The defendant will pay an expense fee of $7.00 for the administration of the Substance Abuse Questionnaire beginning 30 days after release from incarceration.

20. Defendant is ordered not to directly communicate with Roger Courteau, Mrs. Roger Courteau, Kenneth Courteau, Lauryn Courteau. Dawnita Engelke, Jill Hargrove, Mike Renfro, Wes Peyton, John Gauntt (Except in writing unless in hearing or deposition in which John Gauntt represents a party to a lawsuit, Ralph Naranjo, David Zaragoza. Diana Naranjo, Cecilia Mendieta or Belinda Mendieta or go within 400 yards of the residence school or other location frequented by Roger Courteau, Mrs. Roger Courteau, Kenneth Courteau, Lauryn Courteau, Dawnita Engelke, Jill Hargrove, Mike Renfro, Wes Peyton, John Gauntt (Except in writing unless in hearing or deposition in which John Gauntt represents a party to a lawsuit). Ralph Naranjo, David Zaragoza. Diana Naranjo, Cecilia Mendieta or Belinda Mendieta, if advised by defendant’s supervision officer of the address of Said locations or if said locations are known to defendant through personal knowledge.

21. Defendant is ordered to have no contact or communication, direct or through a third party, of any kind with Roger Courtcau, Mrs. Roger Courteau, Kenneth Courteau, Lauryn Courteau, Dawnita Engelke. Jill Hargrove, Mike Renfro, Wes Peyton, John Gauntt (Except in writing unless in hearing or deposition in which John Gauntt represents a party to a lawsuit). Ralph Naranjo, David Zaragoza, Diana Naranjo, Cecilia Mendieta or Belinda Mendieta. Defendant shall not at any time attempt to see, contact or communicate in any way with Roger Courteau, Mrs. Roger Courteau, Kenneth Courteau, Lauryn Courteau, Dawnita Engelke, Jill Hargrove, Mike Renfro, Wes Peyton, John Gauntt (Except in writing unless in hearing or deposition in which John Gauntt represents a party to a lawsuit), Ralph Naranjo, David Zaragoza, Diana Naranjo, Cecilia Mendieta or Belinda Mendieta.

22. Participate in and complete a required Life Skills Class within fourteen (14) days of sentencing and pay a $30.00 fee, to be paid beginning 30 days after release from incarceration.

23. Participate in Intensive (Maximum) Supervision.

24. Seek employment through Employment Services Program, Texas Employment Commission, Texas Rehabilitation Commission at any time defendant is unemployed.

25. Submit to literacy testing and training as directed by Community Supervision and Corrections Department.

26. When reporting as ordered to the supervision officer of this Court, defendant is hereby ordered to give truthful information as requested by the supervision officer or his representative.

27. Defendant is ordered to actively seek, obtain and maintain full-time employment and not to be self-employed.

28. Defendant is ordered not to reside in any home where any firearm or ammunition is kept at any time by anyone.

29. Defendant is ordered not to consume, transport, purchase, trade for, own or possess any alcoholic beverage at any time or any place.

30. Defendant is ordered to attend, participate in and pay for any psychological evaluation and treatment arranged for by the supervision officer of this Court and sign any documents necessary to make the results of said treatment and evaluation available to your supervision officer.

31. Defendant is ordered to attend and participate in psychological counseling until released by the physician or further order of this Court. –

32. Defendant is ordered to exactly follow the instructions of any physician treating him as to taking medications prescribed for him by said physician, I.E. take his medicine when he is ordered to in the amount he is ordered to take.

33. Defendant is ordered not to represent to anyone at any time that he is a lawyer, attorney or legal advisor. Defendant is ordered not to hold himself out at any time as a lawyer, attorney or legal advisor, Defendant is ordered not to represent others in jail or assist them in any legal matters.

34. Defendant is ordered not to orally or in writing threaten anyone at any time with civil litigation without receiving written permission from this Court to do so based upon a written, sworn application presented to this Court by defendant (through his community Supervision officer) representing that the claim he wishes to pursue is not groundless or frivolous in the sense of the Texas Civil Practice and Remedies Code, Chapters 9 and 10, and setting forth in detail under oath the facts that he believes support his claim. 

35. Defendant is ordered not to file Pro Se civil litigation without receiving written permission from this Court to do so based upon a written sworn application presented to this Court by defendant (through his community supervision officer) representing that the claim he wishes to pursue is not groundless or frivolous in the sense of the Texas Civil Practice and Remedics Code, Chapter 9 and 10, and setting forth in detail under oath the facts that he believes support his claim. Defendant shall attach his proposed petition or answer to said application. 

36. Defendant is ordered to dismiss on or before May 1, 1997, any Pro Se civil litigation in which he is currently involved, specifically in Bell County, unless he receives written permission from this Court to continue to pursue the case based upon a written sworn application presented to this Court by defendant (through his community supervision officer) representing that the claim he wishes to pursue is not groundless or frivolous in the sense of the Texas Civil Practice and Remedies Code, Chapter 9 and 10, and setting forth in detail under oath the facts that he believes support his claim. Defendant shall attach his petition and any amendments thereto to said application. 

37. Defendant must notify the Court in writing the location of any lawsuits outside of Bell County, comply with the rules the defendant has been given in condition 36 above and provide a sworn affidavit of the facts. 

38. Defendant is ordered not to engage in any adulterous relationships at any time with anyone. 

39. Defendant is ordered not to enter the Bell County Law Library in Belton, Bell County, Texas, at any time for any reason. 

40. Defendant is ordered not to directly or indirectly, personally or through a third party, take, possess or retain any book, pamphlet, magazine, journal or other printed matter from the Bell County Law Library, Bell Count Jail, or stamped with the words “Property of Bell County”. 

41. Defendant is ordered to serve 180 days in the Bell County Jail as a term of Community Supervision beginning April 10, 1997, with credit for 28 days, day for day. Said term shall be served day for day with no good time credits. 

42. Defendant is ordered to strictly comply with all terms of any Court’s orders regarding support. visitation or custody of his children born to Denise Foster Retzlaff, and any other children born to or determined by the Court to be his children. 

43. Unless defendant is in possession of a written order signed by a Bell County District Court Judge specifically authorizing him to take his children or either of them from Bell County, Texas, defendant is ordered to not remove, in person or by proxy, his children or either of them from Bell County, Texas.

44. Defendant is to forfeit the knife seized at the defendant’s arrest to the Temple Police Department. 

45. Provide weekly proof of your continued full-time employment to your probation officer. 

46. Not Seek early release from probation without seeking a hearing before this Court and giving notice to the State of Texas of said hearing. 

47. Pay psychological fee of $495.00 to be paid $1000 per month beginning 30 days after release from Bell County Jail.

IT IS FURTHER ORDERED BY THE JUDGE that the foregoing terms and conditions of community Supervision and the period of same may be altered, modified, changed or adjudicated or terminated by the Judge upon the request of the Defendant or the State, when presented to the Judge.

APPEAL FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT, NO. 47,846-A, HONORABLE JOE CARROLL, JUDGE PRESIDING. ON MOTION FOR REHEARING.

BEFORE CHIEF JUSTICE LAW, JUSTICES PATTERSON and PEMBERTON.
CONCURRING AND DISSENTING OPINION

BOB PEMBERTON, Justice.

I joined in the Court’s original opinion in its entirety. On rehearing, I again join in the majority’s opinion with the exception of its new disposition regarding condition 39, which prohibited Retzlaff from threatening to file pro se civil litigation without first demonstrating to the trial court that such litigation would not be frivolous. 

Particularly in light of our standard of review, I cannot agree that condition 39 impermissibly infringes upon any First Amendment interests that Retzlaff possesses. Trial courts have broad discretion to determine the conditions of community supervision. Kesaria v. State, 189 S.W.3d 279, 284 (Tex.Crim.App. 2006); Speth v. State, 6 S.W.3d 530, 533-34 (Tex.Crim.App. 1999). Article 42.12 of the Code of Criminal Procedure allows a trial judge to “impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish rehabilitate, or reform the defendant.” Tex. Code Crim Proc. Ann. art. 42.12, § 11(a) (West 2005). An appellate court’s review of the probation conditions imposed on a defendant is limited to determining whether the trial court abused its discretion. Leblanc v. State, 908 S.W.2d 573, 574 (Tex.App. — Fort Worth 1995, no pet.); Todd v. State, 911 S.W.2d 807, 817 (Tex.App.-El Paso 1995, no pet.). This standard of review recognizes that trial judges with first-hand familiarity with the circumstances of a case and the characteristics of a defendant — not appellate courts reading a cold record — are best equipped to make the sensitive, fact-specific judgments required when imposing probation conditions. Cf. Newbury v. State, 135 S.W.3d 22, 32 (Tex.Crim.App. 2004); Furr’s Supermarkets, Inc. v. Bethune,53 S.W.3d 375, 381 (Tex. 2001). A condition of supervision is not necessarily invalid because it interferes with the exercise of a constitutionally protected right. Ex parte Alakayi, 102 S.W.3d 426, 432 (Tex.App.-Houston [14th Dist.] 2003, pet. ref’d). (Indeed, conditions of supervision are imposed as an alternative to incarceration, a far more profound interference with one’s constitutional rights). Probationary conditions are meant to assure that probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. Lee v. State, 952 S.W.2d 894, 899 (Tex.App.-Dallas 1997, no pet.). Probationers do not enjoy the absolute liberty to which every citizen is entitled, but only a conditional liberty properly dependent on the observance of the supervisory conditions. Id. To determine whether a challenged condition improperly violates a probationer’s constitutional rights, we must consider the purposes sought to be served by community supervision, the extent to which constitutional rights enjoyed by law-abiding persons should be accorded probationers, and the legitimate needs of law enforcement.Alakayi, 102 S.W.3d at 432. In Lee, the defendant was placed on community supervision following his conviction for indecency with a child. 952 S.W.2d at 896. Among the conditions of supervision were that the defendant report regularly to his probation officer and that he have no contact with persons under eighteen years of age. Id. After learning that the defendant, a Jehovah’s Witness, was going door-to-door proselytizing for his religion, the trial court, concerned that this activity might bring the defendant into contact with minors, ordered him to stop witnessing door-to-door. Id. The defendant complied with this order, but continued his witnessing by telephone. Id. When questioned about this by his probation officer, the defendant refused to answer on the ground that his religious activities were none of the officer’s business. Id. The trial court revoked the defendant’s supervision for failing to report his activities, and the court of appeals affirmed. The court held that the officer’s questions regarding the defendant’s religious activities were directly related to the crime for which the defendant was convicted, served the legitimate purposes of probation, and contributed to the defendant’s rehabilitation. Id. at 900. In the court’s opinion, the questions did not exceed the defendant’s diminished expectation of privacy while on probation. Id. InAlakayi, the defendant was placed on community supervision following a conviction for sexual assault. 102 S.W.3d at 429. One of the conditions of supervision prohibited the defendant from having any contact with persons under the age of seventeen, including his own ten-year-old son. Id. Another prohibited the defendant from participating in any program or activity involving persons under seventeen, which precluded the defendant from transporting his son to a daycare facility. Id. at 430. These conditions also had the effect of prohibiting the defendant from living with his wife so long as she was living with their son. Id. at 432. The defendant challenged the conditions as depriving him of his constitutional right to associate with his son and maintain his family. Id. at 431. The court of appeals upheld the conditions, holding that the defendant did not meet his burden of proving that the conditions were unreasonable under the circumstances of the case or that they violated his family rights under the Constitution. Id. at 434. 

The district court did not abuse its discretion under the circumstances in imposing condition 39 on Retzlaff. Retzlaff pleaded guilty to tampering with or fabricating physical evidence in order to hide his thefts of books from the Bell County law library. Retzlaff was apparently using the library as a resource for his many pro se civil lawsuits. As the trial court found, Retzlaff has used pro se litigation “as a weapon” against those who have fallen into his disfavor for one reason or another. The district court explained that conditions 39 and 40 were intended “to curb these tendencies.” 

The majority does not dispute that condition 40 — which bars Retzlaff’s filing of future lawsuits without court approval — has a genuine rehabilitative purpose that is directly related to the offense for which Retzlaff was convicted and thus does not impermissibly infringe any First Amendment interests Retzlaff may have. I would hold the same regarding conditions 39. Although condition 39 does restrain whatever First Amendment interests Retzlaff may have in threatening others with litigation, it serves the legitimate needs of probation and law enforcement and was a proper exercise of the trial court’s discretion under the circumstances. I would add that both conditions 39 and 40 also serve to protect the community from Retzlaff’s abusive use of litigation as a weapon. Retzlaff has not met his burden of proving that condition 39 exceeds his diminished liberty interests while on probation. 

I would overrule Retzlaff’s challenge to the constitutionality of condition 39. I respectfully dissent to the Court’s decision to grant relief as to that condition.