COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00081-CV

IN RE WILLIAM THOMAS

LEONARD

RELATOR

----------

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 
2

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.
3

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, 
4

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 
5

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 subjectmatter 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 
6

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, 
7

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, 
8

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 
9

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. 
10

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