NO. 74,334





Per Curiam. Keasler, J., filed a concurring opinion, in which Keller, P.J., and Hervey, J., joined.

The applicant pleaded guilty to a charge of indecency with a child, and the trial court placed him on six years' probation on May 10, 1993. Because the applicant had incurred new federal charges, the State filed a motion to revoke his probation in 1996. The State moved to dismiss the motion to revoke probation in April, 1998, because the applicant had served time in federal prison for "related crimes" and the State no longer wished to prosecute. The trial court granted the State's motion to dismiss on April 14, 1999. On May 10, 1999, the applicant's probationary period expired with no motion to revoke pending.

Two days later, the trial court entered an "Order Vacating Prior Order of Dismissal," purportedly reinstating the initial motion to revoke probation. On November 12, 1999, the trial court held a hearing and, finding that the applicant had violated the terms and conditions of his probation, revoked his probation and sentenced him to six years' confinement in the Texas Department of Criminal Justice, Institutional Division.

The applicant filed an application for writ of habeas corpus alleging that the trial court had no jurisdiction to revoke his probation. (1) On remand from us, the trial court cited Rule of Civil Procedure 329b(d) (2) as the source of its "plenary power" to continue to exercise jurisdiction over the applicant after his probationary period expired. We filed and set the application to decide whether this rule or any other law confers on the trial court jurisdiction over a defendant whose probationary period has expired with no revocation process pending.

Code of Criminal Procedure Article 42.12, section 21(b) provides that "at any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested." On its face, this statute implies that the trial court's authority to revoke a probationer's community supervision ends when the probationary period expires.

We have held that, under certain circumstances, the trial court may revoke probation after the period expires. These holdings address the situation in which a probationer is arrested and the revocation hearing is held outside the probationary period. We have long held that a trial court has jurisdiction to hear a motion to revoke in this situation as long as the motion was filed, and a warrant or capias properly issued, during the probationary period. (3) The reason for allowing jurisdiction to continue is that to hold otherwise would reward an absconder who is able to elude capture until his probationary period expires. (4) The probationer may, however, raise the State's lack of due diligence in executing the warrant for his arrest as a plea in bar to the motion to revoke his probation. (5) That the State's due diligence is an issue which must be raised by the probationer at the revocation hearing illustrates that it is not a jurisdictional requirement.

The applicant does not allege that the State failed to exercise due diligence in apprehending him, but these cases are instructive because they articulate requirements for a trial court's jurisdiction to continue after the probationary period expires: 1) timely filing of a motion to revoke probation and 2) timely issuance of a warrant or capias. In Ex parte Fulce (6) we held that, in the absence of these requirements, the trial court has no jurisdiction, and all actions taken after the date that community supervision expires are void.

The record shows that a capias issued, and was executed, during the probationary period. The applicant, however, was arrested again after his probationary period expired, and there was no new capias to support this arrest. And was the requirement of a motion to revoke probation satisfied? Indeed, the State filed such a motion during the probationary period, but it was dismissed at the State's behest and there was no motion on file when the applicant's probationary period expired.

We now consider whether the trial court's post-probationary-period order reinstating the motion to revoke was effective. Rule of Civil Procedure 329(b)(d) provides no basis for the trial court to issue this order because these rules do not apply in criminal cases. (7) We cannot find any law which confers upon the trial court plenary power to issue this order.

The applicant's probationary period expired without a pending motion to revoke. Under Fulce, any action taken after that was without jurisdiction. Both the trial court's order purporting to reinstate the motion to revoke probation, and the trial court's order revoking the applicant's probation, were entered outside the probationary period and were thus made without jurisdiction.

Relief is granted. The applicant is discharged from all "confinement" in this cause.

Delivered: October 2, 2002.

En Banc.


1. The applicant's parole ended on May 6, 2002, but he continues to be "confined" by the collateral consequences of a felony conviction. See Tex. Code Crim. Proc. art. 11.07, 3(c).

2. Rule 329b(d) states that "the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed."

3. Prior v. State, 795 S.W.2d 179, 184 (Tex. Cr. App. 1990); Stover v. State, 365 S.W.2d 809 (Tex. Cr. App. 1963); Ex parte Fennell, 284 S.W.2d 727 (Tex. Cr. App. 1955).

4. Peacock v. State, 77 S.W.3d 285, 287 (Tex. Cr. App. 2002); Prior, 795 S.W.2d at 183.

5. See Peacock, 77 S.W.3d at 287-88 (stating that issue of lack of due diligence must be raised by appellant before or during revocation hearing in order to preserve it for appellate review).

6. 993 S.W.2d 660, 662 (Tex. Cr. App. 1999).

7. See Rule of Civil Procedure 2, entitled "Scope of Rules": "These rules shall govern the procedure in the justice, county, and district courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated" (emphasis added).