                                       NO. 12-11-00154-CR

                          IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

IN RE:                                              §

BRAD COURTNEY,                                      §                ORIGINAL PROCEEDING

RELATOR                                             §

                                       MEMORANDUM OPINION
       In this original proceeding, Relator Brad Courtney has filed a petition for writs of
mandamus and prohibition along with an affidavit, supplemental briefing, and an appendix.
Relator is on deferred adjudication community supervision for an offense in Nacogdoches
County, and he has filed this original proceeding to prevent the trial court from considering a
motion to adjudicate his guilt.


                                                BACKGROUND
       According to the documents filed with Relator’s petition, he pleaded guilty to the offense
of unauthorized use of a vehicle in October 2003. The trial court accepted his plea, deferred
adjudication1 of his guilt, and placed him on community supervision for a period of five years.
Relator pleaded guilty to the offense of assault in the second degree in the State of Missouri in
August 2006 and was assessed a three year prison sentence. He also pleaded guilty to the
offense of property damage in the first degree. He was assessed a six year prison sentence for
that offense, and the sentences for the two offenses were ordered to be served consecutively.
       According to the documents in Relator’s appendix, these offenses were committed on
October 5, 2005. On October 25, 2005, the Nacogdoches County Sheriff’s Office informed the
Missouri Department of Corrections that it had a warrant for Relator for a “probation violation”

       1
           See TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 2(2)(A), 5 (West Supp. 2010).
on the unauthorized use of a vehicle case. Relator asserts that he has not been transferred to
Nacogdoches County for a hearing on alleged violations of the terms of his community
supervision.   According to his submission, he has filed motions to dismiss the revocation
proceeding, and the trial court has “not adjudicated” or has “denied” the motions.


                         PREREQUISITES TO EXTRAORDINARY RELIEF
       To obtain mandamus relief in a criminal case, a relator must demonstrate that he does not
have an adequate remedy at law to redress an alleged harm and that the act he seeks to compel is
ministerial, that is not involving a discretionary or judicial decision. See State ex rel. Young v.
Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.
proceeding). If the relator fails to satisfy either aspect of this two part test, mandamus relief
should be denied. Id. Additionally, a relator must furnish a record sufficient to support his claim
for mandamus relief. See TEX. R. APP. P. 52.7(a).
       A writ of prohibition in an appellate court is a limited purpose remedy. In re Lewis, 223
S.W.3d 756, 761 (Tex. App.–Texarkana 2007, orig. proceeding). The writ is used to protect the
subject matter of an appeal or to prohibit an unlawful interference with enforcement of a superior
court's order and judgments. See Sivley v. Sivley, 972 S.W.2d 850, 863 (Tex. App.–Tyler 1998,
orig. proceeding) (combined appeal and original proceeding). As pertinent here, a writ of
prohibition will issue to prevent a lower court from interfering with a higher court in deciding a
pending appeal. Id. at 863. Prohibition is not appropriate if any other remedy, such as appeal, is
available and adequate. In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 404 (Tex. App.–
Tyler 2006, orig. proceeding).


                          AVAILABILITY OF EXTRAORDINARY RELIEF
       Relator has not shown that he is entitled to relief. In order to show a “clear right to the
relief sought,” a relator must show that the “the facts and circumstances dictate but one rational
decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law
sources), and clearly controlling legal principles.” Simon v. Levario, 306 S.W.3d 318, 320 (Tex.
Crim. App. 2009) (citations and quotations omitted). Relator argues, citing Overstreet v. State,
No. 12-08-00252-CR, 2009 Tex. App. LEXIS 2929 (Tex. App.–Tyler April 30, 2009, no pet.)
(mem. op., not designated for publication), and State ex rel. Latty v. Owens, 907 S.W.2d 484

                                                2
(Tex. 1995), that any revocation of his suspended sentence at this time would be a void act by the
trial court. We disagree.
        As we explained in the Overstreet opinion, a trial court loses jurisdiction at the expiration
of the term of community supervision if a motion to revoke has not been filed and a capias or
warrant has not been issued. Overstreet, 2009 Tex. App. LEXIS 2929, at *3 (“The trial court,
however, retains jurisdiction to proceed with an adjudication of guilt, despite the expiration of
the term of community service imposed, if before the expiration the attorney representing the
state files a motion to proceed with the adjudication and a capias is issued for the arrest of the
defendant.”). This conclusion is based on Article 42.12, Section 5(h), Texas Code of Criminal
Procedure, which expressly extends a trial court’s jurisdiction beyond the period of community
supervision only when both a motion to proceed to adjudication and a capias have been filed.
        In this case, it appears that a capias has been issued, and it is reasonable to conclude that
a motion to proceed to adjudication has been filed.2 In fact, Relator concedes that a hold has
been placed on him as a result of the warrant from Nacogdoches County. The warrant was
obtained and served in 2005, and Relator’s community supervision was not scheduled to expire
until 2008. Accordingly, because a motion to proceed to adjudication was filed and a warrant
obtained and served before the expiration of his term of community supervision, Relator has not
shown that the trial court lacks jurisdiction to proceed to adjudication in this matter.
        Nor has Relator shown that the State is barred from proceeding to adjudication in this
case on due diligence grounds. Relator complains that the State and the trial court have failed to
compel his appearance and to adjudicate this matter despite his being “available” for several
years. This conveniently sidesteps the fact that Relator is, by his admission, in prison in the State
of Missouri. Without more, we cannot know if his imprisonment in that jurisdiction has been an
impediment to returning Relator to Nacogdoches County for an adjudication hearing.
        As we explained in Fuller v. State, No. 12-07-00424-CR, 2008 Tex. App. LEXIS 6735,
at *5 (Tex. App.–Tyler Sept. 3, 2008, pet. ref’d) (mem. op., not designated for publication), the
legislature removed due diligence defenses for community supervision revocations except for
instances in which the state seeks to revoke a suspended sentence on the grounds that the
defendant failed to report or failed to remain in a specific place. See id., 2008 Tex. App. LEXIS

        2
          Relator has not included a copy of a motion to adjudicate. He does not assert that a motion to adjudicate
has not been filed, and we think it uncontroversial to conclude that such a motion had been filed before the sheriff
could obtain a warrant for a “probation revocation.”

                                                         3
6735 at *8–9 (referencing TEX. CODE CRIM. PROC. ANN. art. 42.12, § 24 (West Supp. 2008).
Relator has not provided this court with a copy of the motion to adjudicate, but a fair reading of
the record leads to the conclusion that the motion was filed because he committed additional
offenses and not because of a failure to report or to remain in a specific place.
         There is a statutory provision whereby a defendant can compel a hearing on alleged
violations of community supervision. Section 21(b) of Article 42.12, Texas Code of Criminal
Procedure, provides that a defendant arrested and detained in the county jail (or other appropriate
place of confinement) for revocation of community supervision may file a motion to cause the
judge to bring the defendant before the judge for a hearing within twenty days. By its terms,
Section 21(b) applies to revocations of community supervision where guilt has been adjudicated.
However, Section 5(b), which specifically addresses revocation of deferred adjudication
community supervision, provides that a defendant may be arrested and detained as provided in
Section 21, Texas Code of Criminal Procedure. Section 21(b) does not entitle Relator to relief in
the proceeding. First, he is not confined in the county jail, which is a precondition for an inmate
to file a motion pursuant to Section 21(b). Second, while Relator has filed two motions to
dismiss the proceedings, he has not filed a motion for a hearing. Finally, even if Relator did file
a motion for a hearing, his remedy if a hearing is not held is to file an application for writ of
habeas corpus. See Aguilar v. State, 621 S.W.2d 781, 786 (Tex. Crim. App. 1981).
         Accordingly, Relator has not shown that any lack of diligence on the part of the trial
court or the State is a bar to the trial court’s holding a hearing on the motion to adjudicate his
guilt.


                                                   CONCLUSION
         Relator has not shown that the trial court is without jurisdiction to act or, more generally,
that he has a clear right to the relief sought. Accordingly, his petitions for writ of mandamus and
writ of prohibition are denied. All pending motions are overruled as moot.


                                                                SAM GRIFFITH
                                                                   Justice
Opinion delivered August 17, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                              (DO NOT PUBLISH)
                                                           4
