                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00081-CV


IN RE WILLIAM THOMAS                                                    RELATOR
LEONARD




                                      ----------

                            ORIGINAL PROCEEDING

                                      ----------

                                    OPINION

                                      ----------

                                 I. Introduction

      Relator William Thomas Leonard seeks mandamus relief from the trial

court’s December 4, 2012 order purporting to extend Leonard’s term of

community supervision an additional five years. 1 Leonard contends that the trial



      1
      Leonard originally appealed from the December 4, 2012 order, but in his
response to our jurisdictional inquiry, he requested that the court treat his appeal
as an original proceeding for mandamus relief. The court thereafter converted
court had no jurisdiction in December 2012 to extend the term of his community

supervision because his original five-year term expired in November 2009. We

conditionally grant Leonard’s petition for writ of mandamus.

                                 II. Background

      Leonard pleaded guilty on November 24, 2004, to bodily injury to a child.

The trial court deferred adjudication of Leonard’s guilt and placed him on

community supervision for a term of five years beginning that same day. The

terms of Leonard’s community supervision were supplemented or amended

numerous times between 2004 and 2008, but the five-year term was never

extended. In October 2008, the State moved for adjudication of Leonard’s guilt,

alleging in part that Leonard had on two occasions “submitted to polygraph

testing and revealed significant criteria indicative of deception,” and a capias

issued for Leonard’s arrest. After a hearing on December 5, 2008, the trial court

adjudicated Leonard guilty and sentenced him to seven years’ incarceration.

      Leonard appealed his adjudication of guilt, and his original five-year term

of community supervision expired in November 2009 while his appeal was

pending. On April 15, 2010, the Eastland Court of Appeals reversed Leonard’s

conviction, and the Texas Court of Criminal Appeals affirmed the reversal on

November 21, 2012.      See Leonard v. State, 315 S.W.3d 578 (Tex. App.—

Eastland 2010), aff’d, 385 S.W.3d 570 (Tex. Crim. App. 2012). The court of

this proceeding into an original proceeding for mandamus relief and permitted the
State an opportunity to respond.


                                    2
criminal appeals’s mandate issued on December 17, 2012. On December 4,

2012, however, the trial court signed an order purporting to extend Leonard’s

community supervision for five additional years, said extension retroactively

beginning on August 2, 2012.

                                  III. Discussion

      Article 42.12, section 21(b) of the code of criminal procedure provides, “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.” Tex. Code Crim. Proc. Ann. art. 42.12, §

21(b) (West Supp. 2012). Section 21(e) further provides that “[a] court retains

jurisdiction to hold a hearing under Subsection (b) and to revoke, continue, or

modify community supervision, regardless of whether the period of community

supervision imposed on the defendant has expired” if the State files a motion to

revoke, continue, or modify the community supervision and a capias for the

defendant’s arrest is issued before the expiration of the period of community

supervision. Id. art. 42.12, § 21(e).

      However, the filing of a motion to revoke does not toll the period of

community supervision, even when there is an appeal from the revocation of

community supervision. Nicklas v. State, 530 S.W.2d 537, 541 (Tex. Crim. App.

1975) (holding probationary term not tolled during pendency of appeal); see Ex

parte Miller, 552 S.W.2d 164, 165 (Tex. Crim. App. 1977); Maldonado v. State,



                                        3
115 S.W.3d 212, 214 (Tex. App.—Corpus Christi 2003, pet. ref’d) (“When an

appeal is taken from an order revoking community supervision, the probationary

period continues to run unabated until it expires or until a revocation order is

entered and becomes final.”); Herrera v. State, 756 S.W.2d 882, 883 (Tex.

App.—Corpus Christi 1988, no pet.).         Explaining this principle, the court of

criminal appeals held as follows:

             The State further, in justification of the trial court’s action,
      urges that the filing of the original motion and the issuance of the
      capias tolled the running of the probationary period [during the
      appeal]. The cases cited do not support that proposition. The
      State’s argument, if carried to its logical conclusion, would mean that
      in every revocation of probation case reversed by this court long
      after the expiration of the probationary period an amended motion
      could then be filed on the claim that the filing of the original motion of
      revocation and the issuance of the warrant tolled the running of the
      probationary period. The law has never permitted this type of action
      after the expiration of the probationary period.

Nicklas, 530 S.W.2d at 541.

      Leonard contends that, under these authorities, the trial court was without

jurisdiction in December 2012 to extend his community supervision term because

his five-year community supervision term was not tolled pending his appeal and

therefore expired in November 2009. The State does not dispute that Leonard’s

term of community supervision had expired in November 2009 while Leonard’s

appeal remained pending, nor does the State argue that the trial court was

permitted to rule for a second time on the State’s 2008 motion to revoke. Rather,

the State contends that Leonard should be estopped from challenging the trial



                                     4
court’s December 2012 order. The State argues that “Relator was allowed to

reap the benefits of deferred adjudication and now turns around and claims that

the trial court had no authority or jurisdiction to extend his supervision as the time

had expired while he was appealing the adjudication.”           Estoppel, however,

cannot apply if the trial court had no subject matter jurisdiction over Leonard’s

case. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007) (“The only

exception to this [estoppel by judgment] principle is for challenges to the subject-

matter jurisdiction of the court rendering the judgment.”); see generally Gutierrez

v. State, 380 S.W.3d 167, 177 (Tex. Crim. App. 2012).            We must therefore

determine whether the trial court had subject matter jurisdiction over Leonard’s

case in December 2012 when it purported to extend the term of his community

supervision.

      We agree with the State that the court of criminal appeals has

differentiated between a trial court’s subject matter jurisdiction and a trial court’s

authority to take certain actions. See, e.g., Davis v. State, 956 S.W.2d 555, 559–

60 (Tex. Crim. App. 1997) (holding district court’s untimely referral of case to

magistrate was not jurisdictional issue that could be raised for first time on

appeal); Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.]

1981) (holding improper venue does not affect the district court’s power to hear

and determine a felony case); Garcia v. Dial, 596 S.W.2d 524, 527–28 (Tex.

Crim. App. [Panel Op.] 1980) (orig. proceeding) (holding trial court had no



                                      5
jurisdiction to reinstate felony case following incorrect dismissal for violation of

speedy trial act).   We also agree that the court of criminal appeals has on

occasion used the term “authority” rather than jurisdiction when referring to a trial

court’s ability to modify, extend, or revoke community supervision after expiration

of the term. See Ex parte Fulce, 993 S.W.2d 660, 662 (Tex. Crim. App. 1999)

(“A court has no authority to act outside the periods permitted by statute.” (citing

Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979))). We cannot agree,

however, that past references to a trial court’s “authority” to extend, modify, or

revoke community supervision currently mean that the trial court in this case

lacked authority but did not lack jurisdiction to extend the term of Leonard’s

community supervision more than three years after the original five-year term

had expired.

      The express language of article 42.12, section 21(e) of the code of criminal

procedure refers to a trial court’s “jurisdiction” to revoke, continue, or modify the

terms of a defendant’s community supervision and provides that if the State files

a motion to revoke, continue, or modify the community supervision and a capias

for the defendant’s arrest is issued before the expiration of the period of

community supervision, “[a] court retains jurisdiction to hold a hearing . . . and to

revoke, continue, or modify community supervision, regardless of whether the

period of community supervision imposed on the defendant has expired.” Tex.

Code Crim. Proc. Ann. art. 42.12, § 21(e) (emphasis added).           Article 42.12,



                                     6
section 5(h) also expressly states that a court “retains jurisdiction” to adjudicate

guilt beyond the term of community supervision if the State had filed a motion to

adjudicate and a capias had issued before the term expired. Id. art. 42.12, §

5(h).

        Moreover, although the court of criminal appeals used the term “authority”

in Fulce in 1999 when it wrote that “[a] court has no authority to act outside the

periods permitted by statute,” 993 S.W.2d at 662, the court of criminal appeals

three years later expressly interpreted Fulce to mean that a trial court has no

jurisdiction to act if there is no motion to revoke filed before the expiration of

community supervision, holding,

              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.

Ex parte Donaldson, 86 S.W.3d 231, 233 (Tex. Crim. App. 2002) (emphasis

added) (citing Fulce, 993 S.W.2d at 662). Indeed, the court of criminal appeals

just last year discussed the 2003 amendments to article 42.12 and began its

analysis by stating, “At common law, a trial court’s jurisdiction over a motion to

revoke did not extend beyond the expiration of a defendant’s community

supervision unless the motion had been filed and a capias or arrest warrant

issued within the supervision period.” Garcia v. State, 387 S.W.3d 20, 22, 22–26

(Tex. Crim. App. 2012) (emphasis added) (discussing language of article 42.12,


                                       7
section 24 and holding that statutory amendment “eliminated the common-law

due-diligence defense and replaced it with the limited affirmative defense

provided in the due-diligence statute”). Other courts, including this one, have

similarly and consistently referred to a trial court’s jurisdiction or lack thereof in

the context of attempts to modify, extend, or revoke community supervision after

the term’s expiration. See In re Cherry, 258 S.W.3d 328, 332, 334 (Tex. App.—

Austin 2008, orig. proceeding) (op. on reh’g) (stating that absent motion to

revoke and issuance of capias, “a trial court has no jurisdiction to modify

community supervision after the supervision term has expired” and holding that

trial court “lacked jurisdiction to do anything further in this case other than to

discharge Cherry from probation”); In re Hancock, 212 S.W.3d 922, 929 (Tex.

App.—Fort Worth 2007, orig. proceeding) (holding order purporting to clarify

extension of community supervision was void because trial court “had no

jurisdiction over the case” after term expired since no motion to revoke filed

before expiration); Polak v. State, 907 S.W.2d 664, 664 (Tex. App.—San Antonio

1995, no pet.) (vacating judgment and holding trial court lacked jurisdiction to

revoke probation and sentence Polak to confinement); see also Weeks v. State,

Nos. 13-11-00628-CR, 13-11-00629-CR, 2013 WL 485792, at *2 (Tex. App.—

Corpus Christi Feb. 7, 2013, no pet.) (mem. op., not designated for publication)

(op. on reh’g) (holding that because motion to revoke was filed and capias issued

before expiration of term, the trial “court thus retained jurisdiction to hear the



                                      8
underlying felony theft case, despite the fact that [Weeks’s] community

supervision term expired”); Townsley v. State, No. 05-11-00921-CR, 2012 WL

6634679, at *2 (Tex. App.—Dallas Dec. 21, 2012, no pet.) (mem. op., not

designated for publication) (“Generally, a trial court’s jurisdiction over a

defendant’s criminal charge expires once the defendant successfully completes

the period of deferred community supervision.” (citing article 42.12, § 5(c)));

Baldwin v. State, No. 07-12-00048-CR, 2012 WL 5456396, at *2–3 (Tex. App.—

Amarillo Nov. 8, 2012, pet. ref’d) (mem. op., not designated for publication)

(holding trial court lacked jurisdiction to proceed to adjudication after community

supervision term expired in absence of capias issued before expiration of term);

Reynolds v. State, No. 02-02-00088-CR, 2003 WL 21197442, at *2 (Tex. App.—

Fort Worth May 22, 2003, no pet.) (mem. op., not designated for publication) (“A

trial court has jurisdiction to revoke community supervision after the term of

community supervision has expired if the State filed a motion to revoke before

expiration of the period and a capias or arrest warrant was issued before

expiration of the period.”).

      In light of the plain language of article 42.12 and the cases holding that a

trial court loses jurisdiction to extend, modify, or revoke community supervision in

the absence of a motion and capias prior to expiration of the term of supervision,

we hold that the trial court did not have jurisdiction in December 2012 to extend

the term of Leonard’s community supervision. See Tex. Code Crim. Proc. Ann.



                                     9
art. 42.12, §§ 5(h), 21(e); Cherry, 258 S.W.3d at 332; Hancock, 212 S.W.3d at

929. The estoppel doctrine advanced by the State therefore does not apply.

See Rhodes, 240 S.W.3d at 891. The trial court’s December 4, 2012 order is

void. See Hancock, 212 S.W.3d at 929.

                                IV. Conclusion

      Because the trial court’s December 4, 2012 order is void, we conditionally

grant the petition for writ of mandamus. Our writ will not issue unless the trial

court refuses to vacate its December 4, 2012 order within ten days of the date of

this opinion.




                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: June 6, 2013




                                   10
