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Fort Worth, Texas – Criminal Defense lawyer represented Appellant with appealing from the trial court’s judgment revoking his probation.
In 2016, when Schaefer was a juvenile, he was found to have engaged in
delinquent conduct—indecency with a child—and was sentenced to five years’
confinement and placed on probation for three years. See Tex. Fam. Code Ann.
§§ 53.045, 54.04(q). On his nineteenth birthday, Schaefer’s probation supervision was
transferred to a district court. See id. § 54.051(d).
In February 2018, the State filed a petition to revoke Schaefer’s probation for
multiple violations, including accessing sexually explicit material and going into child
safety zones. The State later filed amended petitions to revoke his probation, adding
1We use the terms “probation” and “community supervision” interchangeably
in this opinion. See McCain v. State, 582 S.W.3d 332, 336 n.2 (Tex. App.—Fort Worth
2018, no pet.) (“The terms ‘community supervision’ and ‘probation’ are
additional allegations each time, ultimately alleging twenty-one violations, including
failing to attend sex offender counseling, having contact with a female minor child
without an approved chaperon present, failing to submit to a polygraph, and
consuming alcohol on multiple occasions.
A hearing was set for April 15, 2020, but a joint motion for continuance was
filed. It alleged that three defense witnesses were in a “high-risk” category for
contracting COVID-19, and therefore, the sentencing hearing should be moved to a
time when the “witnesses [could] be called without risk to their health and safety.”
According to Schaefer’s attorney, the hearing was reset twice because “once we had
health issues and the other time, they had health issues.”
The hearing was finally held on July 3, 2021. At that hearing, the trial court
stated that prior to the hearing, on January 31, 2020, Schaefer had pleaded guilty to
possession of child pornography and had pleaded true to paragraphs one through
twenty-one of the petition to revoke probation. The trial court admitted exhibits
containing child pornography, the presentence investigation report, and the
supplemental presentence investigation report, and it took judicial notice of the
2The trial court also noted that “we have been set several times in these cases
and have not been able to finish these - - the sentencings on these due to COVIDrelated matters and the emergency orders that were promulgated by the Texas
Supreme Court and Office of Court Administration.”
court’s file regarding two child pornography cases.
Schaefer called three witnesses—
two licensed sex offender treatment providers and his mother. Both treatment
providers stated that Schaefer’s probation should be continued.
At the conclusion of the testimony by all witnesses, the trial court said that it
would “hold the State’s Fifth Amended Petition to Revoke Probated Sentence in
abeyance” and would hold the sentencing in the child pornography case “in
abeyance.” This was done to allow briefing on “the timeline issue” regarding Article
42A.753(c)(2), which sets out when a trial court may extend community supervision.
At the end of the continued hearing on August 9, 2021, the trial court stated:
I’m going to make the following findings of fact and conclusions of law.
I will find the defendant was placed on community supervision as
of the order date signed by Judge Alex Kim 8/24/16. I’m going to find
that three years from that date is 8/24/2019, the date he would have
I’ll find that State timely filed a petition on 2/13/2018. One year
from the date of expiration is 8/24/2020. Therefore, I will specifically
find that Texas Code of Criminal Procedure 42A.753(c) prohibits the
Court from extending the period of community supervision.
42A.757 also states, “At any time during the period of community
supervision, the judge may extend the period of community supervision
as provided by this article.”
I’ll specifically find that the defendant is not in the period of
community supervision under 42A.75 - - 757.
3Both the State and Schaefer note that Schaefer did not appeal the conviction
for possession of child pornography.
There is nothing before this Court that says any orders, or any
COVID orders from the Texas Supreme Court suspends application of
42A.752(c) - - excuse me 42A.753(c).
After making these findings, the trial court found paragraphs one through twenty-one
true and sentenced Schaefer to four years’ confinement. The trial court then added,
“It is implicit in my findings, but it is the Court’s ruling that under 42A.753(c), this
Court does not have the authority to extend [Schaefer’s] probation.” The trial court
then rendered judgment revoking Schaefer’s community supervision, adjudicating him
guilty of indecency with a child by contact, and sentencing him to four years’
imprisonment. The trial court certified Schaefer’s right to appeal, and he appealed
from this judgment.
In one issue, Schaefer contends that “[t]he trial court erred in finding that
court-ordered delays caused by COVID-19 now inhibited it from extending
Appellant’s probation” under Article 42A.753(c)(2). Relying on the Supreme Court
Emergency Orders Regarding the COVID-19 State of Disaster, Schaefer argues that
these orders “specifically provided that a criminal court is permitted and in certain
cases required to ‘modify or suspend any and all deadlines and procedures,’ including
those ‘prescribed by statute.’” See, e.g., First Emergency Order Regarding the COVID-19
State of Disaster, 596 S.W.3d 265 (Tex. 2020). The State responds that a trial court’s
authority to extend probation pursuant to Article 42A.753 has certain limitations,
among them the time limits imposed by Article 42A.753(c)(2), and “[t]hose time limits
are not mere deadlines or procedures that may be modified or extended pursuant to
the Emergency Orders”; rather, they are jurisdictional. Therefore, the State maintains
that the trial court correctly concluded that it had no authority to extend probation.
We agree with the State.
A. Standard of Review
While we generally review an order revoking probation under an abuse of
discretion standard, Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006), we
review questions of law de novo. Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App.
2017). Thus, to the extent an issue involves statutory interpretation or the legal effect
of a court order, we apply a de novo standard of review. See Pruett v. State, 510 S.W.3d
925, 927 (Tex. Crim. App. 2017) (stating that statutory interpretation question is a
question of law that is reviewed de novo); see also Kim v. Ramos, 632 S.W.3d 258, 265
(Tex. App.—Houston [1st Dist.] 2021, no pet.) (applying de novo standard of review
to Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster).
B. Jurisdiction in a Probation Revocation Proceeding
A probation revocation proceeding is considered an extension of the original
sentencing portion of the defendant’s trial, and therefore, it is subject to the
continuing jurisdiction of the trial court. Cobb v. State, 851 S.W.2d 871, 873–74 (Tex.
Crim. App. 1993). The trial court maintains jurisdiction to hear a motion to
adjudicate guilt as long as the motion is filed with the court and a capias is issued
before the end of the defendant’s probationary period. Porras v. State, 629 S.W.3d 288,
290 (Tex. App.—Dallas 2020, pet. ref’d).
A judge may extend the maximum period of deferred adjudication community
supervision in a manner provided by Articles 42A.753 and 42A.7574 of the Texas
Code of Criminal Procedure. Id.; see Tex. Code Crim. Proc. Ann. arts. 42A.103(c),
42A.753, 42A.757. Texas Code of Criminal Procedure Article 42A.753(c) provides,
(c) A court may extend a period of community supervision under
(1) at any time during the supervision period; or
(2) before the first anniversary of the date the supervision period
ends, if a motion for revocation of community supervision is
filed before the date the supervision period ends.
Tex. Code Crim. Proc. Ann. art. 42A.753(c). The extension of a period of community
supervision may not exceed ten years for a first, second, or third degree felony case.
Id. art. 42A.753(a).
C. COVID-Related Orders and Cases
Under Texas Government Code Section 22.0035(b), the Texas Supreme Court,
“[n]otwithstanding any other statute . . . may modify or suspend procedures for the
conduct of any court proceeding affected by a disaster during the pendency of a
disaster declared by the governor.” Tex. Gov’t Code Ann. § 22.0035(b). In its “First
Emergency Order Regarding the COVID-19 State of Disaster,” the supreme court
4Schaefer makes no argument about this article.
noted that the governor had declared a state of disaster in all 254 counties in the State
of Texas “in response to the imminent threat of the COVID-19 pandemic.”
596 S.W.3d at 265; see The Governor of the State of Tex., Proclamation No. 41-3720,
45 Tex. Reg. 2094, 2094–95 (2020). The supreme court’s order provided in part,
Subject only to constitutional limitations, all courts in Texas may in any
case, civil or criminal—and must to avoid risk to court staff, parties,
attorneys, jurors, and the public—without a participant’s consent:
a. Modify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending
no later than 30 days after the Governor’s state of disaster has been
First Emergency Order, 596 S.W.3d at 265.
At the time of the trial court’s hearing and ruling, the applicable orders were
the Thirty-Eighth and Fortieth Emergency Orders. See Thirty-Eighth Emergency Order
Regarding COVID-19 State of Disaster, 629 S.W.3d 900 (Tex. 2021) (order); Fortieth
Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 911 (Tex. 2021)
(order). Both of those orders contained similar language allowing a court to “modify
or suspend any and all deadlines and procedures.” Thirty-Eighth Emergency Order,
629 S.W.3d at 900; Fortieth Emergency Order, 629 S.W.3d at 912.
The Texas Court of Criminal Appeals examined this “modify or suspend”
provision of the emergency orders in State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim.
App. 2021), wherein a trial court had concluded that it had the power under the
emergency orders to conduct a bench trial despite the State’s refusal to consent. Id. at
362. The court noted that the language in the emergency order “does not suggest that
a court can create jurisdiction for itself where the jurisdiction would otherwise be
absent or that a judge could create authority to preside over proceedings over which
the judge would otherwise be barred from presiding.” Id. at 364. Rather, “[i]f the
Supreme Court’s Emergency Order were really intended to permit trial courts to
enlarge their own jurisdiction and to permit trial judges to enlarge the types of
proceedings over which they have authority, we would expect a provision to explicitly
say so.” Id. at 365. Therefore, the court concluded that the emergency order did not
confer upon the trial court the authority to conduct a bench trial without the State’s
consent. Id. at 366.
In State v. Temple, the Fourteenth Court of Appeals examined the emergency
orders as they applied to Texas Code of Criminal Procedure Article 42A.202, which
limits a trial court’s jurisdiction to suspend execution of a sentence the defendant has
begun serving to an expiration date 180 days after execution of when the sentence
actually begins. 622 S.W.3d 592 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d).
The court noted that the “180-day limit on a trial court’s jurisdiction to grant shock
probation is just that—a jurisdictional limit—and it is strictly enforced.” Id. at 594.
Looking specifically at the “modify or suspend” language of the emergency orders,
the court stated, “Jurisdiction, however, concerns a trial court’s power to make legally
binding decisions and is not merely a ‘procedural’ concept.” Id. at 595. In addition,
the court examined Ogg and its “limitations” of the emergency order as set out by the
court of criminal appeals. Id. The court concluded that the emergency order “does
not by its terms extend a trial judge’s authority to order shock probation beyond 180
days after a defendant begins serving a felony sentence.” Id.; see State v. Bronson,
627 S.W.3d 520, 521–22 (Tex. App.—Texarkana 2021, no pet.) (same); see also Estrada
v. State, 647 S.W.3d 923, 925 (Tex. App.—Fort Worth 2022, pet. ref’d) (mem. op.)
(holding that trial court did not abuse its discretion in extending the 180-day deadline
to try defendant pursuant to the Interstate Agreement on Detainers Act because
defendant “waived his complaint by failing to object to the trial date, that the period
was extended because the final day of the 180-day period fell on a Sunday, and that
the trial court was empowered to sua sponte grant a one-day extension”).
Similarly, the First Court of Appeals looked at the emergency orders and Ogg in
deciding whether a trial court could extend the seventy-five-day deadline to rule on a
motion for new trial under Texas Rule of Appellate Procedure 21.8(a). State v.
Rodriguez, Nos. 01-20-00848-CR, 01-20-00849-CR, 2022 WL 2976296, at *2 (Tex.
App.—Houston [1st Dist.] July 28, 2022, pet. ref’d) (mem. op., not designated for
publication). Holding that the seventy-five-day deadline is not procedural but rather
jurisdictional in nature, the court concluded that the trial court lacked subject-matter
jurisdiction to enter orders granting new trials, and therefore, the orders were void.
Id. at *7; see Garley v. State, Nos. 13-20-00336-CR, 13-20-00337-CR, 2022 WL 2348055,
at *5 (Tex. App.—Corpus Christi–Edinburg, June 30, 2022, pet. ref’d) (mem. op., not
designated for publication) (“The deadline to rule on a motion for new trial is not
procedural in nature—it is jurisdictional and, after it expires, the trial court loses
authority to act in the case.”).
D. Application of Law to Facts
Here, it is undisputed that the revocation hearing was conducted more than a
calendar year after the community supervision would have otherwise ended.
Schaefer’s argument is that the trial court could have extended his probation “before
the first anniversary of the date the supervision period ends” under the COVID-19
emergency orders. See Tex. Code Crim. Proc. Ann. art. 42A.753(c)(2). According to
Schaefer, this is especially true because he “entered pleas of true before the onset of
Covid 19, in January 2020, and well before the first anniversary would have come to
pass in August 2020.” Additionally, Schaefer argues that Ogg is inapposite and actually
supports his position because the “timing of the probation extension was procedural
and not substantive.”
But Schaefer’s argument ignores the fact that a probation revocation hearing is
an extension of the original sentencing portion of the defendant’s trial and is subject
to the continuing jurisdiction of the trial court. Cobb, 851 S.W.2d at 874.5
5Relying on Cobb, the State says that a “probation revocation proceeding is an
administrative hearing rather than a civil or criminal trial.” See Cobb, 851 S.W.2d at
873. However, Cobb’s pronouncement has since been rejected by the Texas Court of
Criminal Appeals in Ex parte Doan, 369 S.W.3d 205, 212 (Tex. Crim. App. 2012).
There, the court of criminal appeals stated, “Community-supervision revocation
proceedings are not administrative hearings; they are judicial proceedings, to be
governed by the rules established to govern judicial proceedings.” Doan, 369 S.W.3d
court only retains jurisdiction to hear a motion to adjudicate guilt if, before the
expiration of the defendant’s probationary period, a motion is filed with the court and
a capias is issued for the defendant’s arrest. Tex. Code Crim. Proc. Ann. art. 42A.751;
Ex parte Donaldson, 86 S.W.3d 231, 232 (Tex. Crim. App. 2002) (“We have long held
that a trial court has jurisdiction to hear a motion to revoke . . . as long as the motion
was filed, and a warrant or capias properly issues, during the probationary period.”).
While the trial court retained jurisdiction to adjudicate Schaefer’s guilt, the
court had no authority to extend or modify the original term of deferred adjudication
community supervision because it had expired. See Colson v. State, No. 01-14-01020-
CR, 2015 WL 7455770, at *3 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet.
ref’d) (mem. op., not designated for publication) (“Colson’s original two-year term of
deferred-adjudication community supervision continued to run after the State filed the
motion to adjudicate, and the authority of the trial court to continue or modify
Colson’s supervision expired at the end of that two-year term.”); see also Nicklas v.
State, 530 S.W.2d 537, 541 (Tex. Crim. App. 1975) (rejecting State’s argument that
filing of a motion to revoke probation and issuance of warrant tolls running of
probationary period); Paredes v. State, No. 13-20-00272-CR, 2022 WL 1250845, at *3
(Tex. App.—Corpus Christi–Edinburg Apr. 28, 2022, no pet.) (mem. op., not
designated for publication) (holding “that the tolling deadlines in the supreme court
emergency orders pertaining to the Covid-19 pandemic do not extend the time to file
the notice of appeal in a criminal case”); Arrieta v. State, 719 S.W.2d 393, 395 (Tex.
App.—Fort Worth 1986, pet. ref’d) (holding that trial court cannot amend or modify
probation once probation period expires because “the court has only the power
granted to it by the code in dealing with probation”).
Similarly, the deadline in Article 42A.753(c) of “the first anniversary of the date
the supervision period ends” is a jurisdictional limit on the trial court’s authority to
extend a period of community supervision. See Tex. Code Crim. Proc. Ann. art.
42A.753(c); see also Arrieta, 719 S.W.2d at 395. Therefore, it is not “merely a
‘procedural’ concept.” See Temple, 622 S.W.3d at 595; see also Rodriguez, 2022 WL
2976296, at *7. Accordingly, because the trial court could not have extended
Schaefer’s probation pursuant to Article 42A.753(c)(2), Schaefer’s sole issue is
Outcome: Having overruled Schaefer’s sole issue, the judgment of the trial court is