                                 NO. 12-08-00252-CR

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

LISA TYLER OVERSTREET,                              §          APPEAL FROM THE SECOND
APPELLANT

V.                                                  §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                            §          CHEROKEE COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Appellant Lisa Tyler Overstreet contends that the trial court was without jurisdiction to
render an order adjudicating her guilty of the offense of forgery and assessing a two year sentence.
Appellant brings two issues, the first of which is dispositive. In her first issue, she claims that the
trial court was without jurisdiction to adjudicate her guilt after the expiration of her period of
community supervision, because no capias for her arrest had been issued before the term of
community supervision imposed had expired. We sustain Appellant’s first issue, reverse the order
adjudicating her guilt, and order her discharged.

                                           BACKGROUND
       Appellant pleaded guilty to forgery, and the trial court deferred adjudication of guilt and
placed her on community supervision for a term of three years. Later, Appellant approved the
modification of the terms and conditions of her community supervision. Pursuant to the agreement,
the trial court ordered Appellant to make additional payments and further ordered her period of
community supervision extended to expire on March 14, 2008. After the trial court ordered the
extension, Appellant was convicted of marijuana possession and also failed to make various
payments ordered by the trial court. Before her term of community supervision expired, the State
filed its application to revoke Appellant’s community supervision and to proceed to an adjudication
of guilt. However, a capias for her arrest did not issue until March 20, 2008, six days after the
expiration of the period of community supervision. The trial court conducted a hearing on the
State’s application to adjudicate guilt on May 6, 2008. The trial court found the allegations of
Appellant’s marijuana use true, adjudicated Appellant guilty, and assessed her punishment at
confinement for two years.


                                            JURISDICTION
        In her first issue, Appellant contends that the trial court was without jurisdiction to adjudicate
her guilt, because her period of community supervision had expired before the issuance of a capias
for her arrest.
Applicable Law
        Texas Code of Criminal Procedure article 42.12 governs community supervision. See TEX .
CODE CRIM . PROC. ANN . art. 42.12 (Vernon Supp. 2008); In re Cherry, 258 S.W.3d 328, 332 (Tex.
App.–Austin 2008, orig. proceeding). Section 5 of the same article contains the provisions
specifically related to deferred adjudication. TEX . CODE CRIM . PROC. ANN . art. 42.12 § 5 (Vernon
Supp. 2008). When the trial court defers adjudication of a defendant’s guilt and places the defendant
on community supervision, the trial court retains jurisdiction over the probationer for the duration
of community service imposed, and may revoke, terminate, or modify the probation. See id. art.
42.12 §§ 5(a), 5(b), 20, 22 (Vernon Supp. 2008). At the expiration of the period of community
service imposed, the trial court, if it has not proceeded to an adjudication of guilt, must “dismiss the
proceedings against the defendant and discharge him.” Id. art. 42.12 § 5(c) (Vernon Supp. 2008).
        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.” Id. art. 42.12 § 5(h) (Vernon Supp. 2008) (emphasis added). The identical
jurisdictional limitations are found in section 21(e), which provides that the trial court retains
jurisdiction to revoke, continue, or modify community service after the probationary period has
expired, if, before the term of community service expires, the attorney representing the state “files
a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest
of the defendant.” Id. art. 42.12 § 21(e) (Vernon Supp. 2008).

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        Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity. State
ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); In re Hancock, 212 S.W.3d 922, 929
(Tex. App.–Fort Worth 2007, orig. proceeding). A court has no authority to act outside the periods
permitted by statute. Houlihan v. State, 579 S.W.2d 213, 219 (Tex. Crim. App. 1979). A review
of the authorities reveals a long, unchallenged line of cases wherein the courts have consistently held
that the trial court has no jurisdiction to revoke probation after the term of probation expires unless
the motion to revoke is filed and the capias issued prior to the end of the probationary period.
        In Pollard v. State, 172 Tex. Crim. 39, 353 S.W.2d 449 (1962), the State filed a motion to
revoke probation six days before the term of probation expired, but the order revoking probation was
reversed because no warrant issued before the end of the probationary period. Id., 172 Tex. at 40,
353 S.W.2d at 449-50. In Coffey v. State, 500 S.W.2d 515 (Tex. Crim. App. 1973), the court held
a conviction void for lack of jurisdiction, because the application to revoke was filed after the
probationary period had expired although the capias had been timely filed. Id. at 516-17. In Lynch
v. State, 502 S.W.2d 740 (Tex. Crim. App. 1973), the court of criminal appeals determined that,
absent a showing that a capias had issued during the term of probation, the trial court lacked
authority to revoke Lynch’s probation. Id. at 741.
        In the more recent case of In re Hancock, cited by Appellant, the trial court on
September 10, 1999, placed Hancock on community supervision for ten years. On January 28, 2005,
the State and the defense agreed to various modifications of the conditions of community supervision
and extended his period of community service for one year from the date of the hearing, effectively
abbreviating the original term imposed by over four years. Six months after the end of the shortened
term provided in its January 28, 2005 order, the trial court attempted to restore by judgment nunc
pro tunc Hancock’s original ten year probationary term. The State moved to revoke his probation
on August 1, 2006. In re Hancock, 212 S.W.3d at 924-25. The Fort Worth Court of Appeals
decided the trial court’s error, if any, in shortening his probationary term was judicial, not clerical,
and could not be corrected by judgment nunc pro tunc. Id. at 927-28. The court of appeals held that
the trial court was without jurisdiction to revoke Hancock’s probation, because no motion to revoke
had been filed and no capias issued until over six months after the term set out in the amended order
had expired. Id. at 929.
        Absent these two statutory requirements, the trial court also lacks jurisdiction to proceed to


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an adjudication of guilt once the probationary period expires. In re Cherry, 258 S.W.3d at 332. In
Garza v. State, 695 S.W.2d 726 (Tex. App.–Dallas 1985), aff’d, 725 S.W.2d 256 (Tex. Crim. App.
1987), the court of appeals recognized that a trial court has jurisdiction to hear a motion and revoke
probation after the expiration of the probationary period if the motion to revoke was filed and the
capias for arrest issued prior to the expiration of the period. The court found, however, that the
record did not show compliance with either condition. The State’s amended motion to proceed with
an adjudication of guilt was not file stamped, and no capias appeared in the record. The court
reversed Garza’s conviction and remanded the cause for entry of an acquittal. Id. at 729.
         In Pino v. State, 189 S.W.3d 911 (Tex. App.–Texarkana 2006, pet. ref’d), the State filed its
motion and capias issued on the fifth anniversary of the trial court’s order deferring adjudication of
Pino’s guilt and placing him on community supervision for five years. The court of appeals held that
the term of his community supervision expired on the day before the anniversary date of the trial
court’s order. Id. at 912. Therefore, the State was one day late in filing its motion and obtaining the
issuance of a capias. Consequently, the court of appeals held the trial court lacked jurisdiction to
proceed with an adjudication of guilt. Id. at 915.
         We conclude that since no capias for Appellant’s arrest issued before her term of community
service had expired, the trial court lacked jurisdiction to proceed with an adjudication of her guilt.
Appellant’s first issue is sustained. Because we conclude that Appellant’s first issue is dispositive,
we will not address Appellant’s second issue. See TEX . R. APP. P. 47.1.

                                                   DISPOSITION
         The order adjudicating Appellant’s guilt is reversed and Appellant is ordered discharged.


                                                                          BILL BASS
                                                                            Justice

Opinion delivered April 30, 2009.
Panel consisted of Worthen, C J., Hoyle, J., and Bass, Retired Justice,
Twelfth Court of Appeals, Tyler, sitting by assignment.


                                              (DO NOT PUBLISH)




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