## In the Court of Appeals Second Appellate Distri ct of Texas

at Fort Worth

_____________

______________ No. 02

- 21

- 00118

- CR

_______ _____ __ _____________

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 151 1486
Before Bassel, Womack, and Walker, JJ. M emorandum Op inion by Justice Womack 

### A LEXANDER 

### P AUL 

### S CHAEFER 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION Appellant Alexand er Paul Scha ef er app eals from the trial court ’ s judgment revoking his probation , 1 adjudicating him guilty of indecency w ith a child by contact , and sentencing him to four years i n prison

. In one i ssue, he contends that the trial court erred by find ing that the co urt

- ordered delays caused by COVID

- 19 d eprived it of the ability to extend his probation pursuant to Texas Code of Criminal Procedure
Article 42A.753 (c) (2) , and therefore, his judgment should be vacated and remanded to
the trial court for a n ew punishmen t hearing. Becau se we disagree, w e will affirm.
II. B A CKGRO U ND In 2016, when Sch aefer was a juvenile, he was fou nd to have engag ed in delinquen t conduct

— inde cen cy with a child

— and was senten ced to five years ’
confi nement and placed on probation for three years

. See Tex. Fam. Code Ann. § § 53.045, 54.04(q). On his ninetee nth birthday , Schaefer ’ s probation supervisio n was transferre d t o a distr ict court. See i d. § 54.051(d).
In Feb ruary 2018, the State f iled a p etition to revoke Schaefer ’ s probation for multiple violations , incl uding accessing sexually explicit material and going into chi l d
saf ety zones
. The Stat e later filed amended petition s to revoke his probation , adding

1 We use the terms “ probation ” and “ community supervision ” interchangeably in this op i nion. See McCain v. State , 582 S.W.3d 332, 336 n. 2 (Tex. App.

— Fort Worth 2018, no pet.) ( “ The ter ms ‘ communi ty sup e rvision ’ an d ‘ probation ’ are synonymous. ” )

.3

additional allega tions each time, u ltimately alleging twenty

- one vio lati ons, including
faili ng to attend sex offender counseling, having conta ct w i th a fem ale minor chil d without an approved c h a peron present, failin g to submit to a poly graph, and consuming alcohol on multi ple occ asions.
A hearin g wa s se t for April 15, 2020 , but a joint motion for continuance wa s filed

. It alleged that t hree defens e witness es w ere in a “ high

- risk ” category for contracting COVID

- 1 9 , and therefore, the sent encing hearing should be moved to a
time when t he “ witn esses [could] be called wi thout risk to their health and safety. ”
Ac c ording to Schaefer ’ s attorney, the hearing was reset twi ce because “ once we had
healt h is sues and the other time, they had hea lth issues. ” 2 The hearing was finall y he ld o n July 3, 2021

. At th at he aring, the trial court

stat ed that pr

ior t o the hearing, on January 31, 2020, Schaefer had plea ded guilty to possession of child pornography a nd h ad pleaded true to paragraphs one through

twe nty

- one of the petition to revoke probation. The trial court a d m itted exhibits containing child pornography , t he presen tence investigation report , and the supplemental presentence investigation report , and it t ook judicial no tic e of t he

2 The trial court also noted that “ we ha ve been set s everal tim es in these cases and have not be en able to f in is h thes e

- - the senten cings on these due to COVID

related matters and the emergency orders that were p romul gated by the Texas Supreme Court and Office of Court Administration. ”4

court ’ s file r eg a r ding two child pornography cases . 3 Schaefer called t h re e witnesses

—
two li cense d sex offen der treatment provider s and hi s mother

. Both treatmen t providers stated th at Schae fer ’ s probation sh ould be co ntin ued

. At the conclusion of the testimony b y all witne s ses, the trial court said that it
would “ hold the State ’ s Fifth Amended Petition to Revoke Pro bated Sentence in

a beyance ” and wou ld h old the se ntencing in the child p orn ography case “ in
ab e y ance. ” Thi s wa s done to all ow briefing o n “ the timeline issue ” regarding Article
42 A.753 (c) (2) , which sets ou t when a trial court may extend community supervision

. At the end of the con tinued hearing on A u g ust 9, 2021, the trial court stated:
I ’ m going to mak e the fol lowing find ings of fact and conclusion s of law.
I will find th e defendant was placed on community supervision a s of the order date signed b y Judge Alex Kim 8/24/16. I ’ m goi ng to find tha t thr e e years from that date is 8/24/2019 , the date he would hav e ex pired.
I ’ ll find that State timely fi led a petition on 2/13/2 018. One year from the date of expiration is 8/24/2020. Th erefore, I will spe cifically find that Texas Code of Criminal Proc ed ure 4 2 A.753(c) prohibits th e Court f rom exte nding the perio d o f co mmunity supervision.
42A .757 a lso sta tes, “ At any time during the p eriod of community supervision, the judg e may extend the period of commun ity supervision as provided by this ar ticle. ”
I ’ ll spe c i fically find tha t the def endant is not in the period o f
co mmunity supervision under 42A.75

- - 7 57.

3 Both the State and Schaefer note that Schaefer did not appea l the c onvi ction f or p ossess ion of child porno graphy.5 T her e is nothing before this Court that s ays any orders , or an y COVID orders from the Te x as Suprem e Court suspends applicat ion of 42A.7 52(c)

- - excuse me 4 2A.753(c)

. After making these fin dings, t h e trial cour t found paragraphs one th r oug h twenty

- one

true and sentenced Schaefer to four years ’ confinement

. The trial court then a dded,

“ It is implicit in my findings, but it is the Court ’ s ruling t hat under 42A.753 (c) , this
Co urt d o es not have the aut ho rity to ext end [Schaefer ’ s] p robation. ” The trial court then render ed judgment revoking Schaefer ’ s community supervisi on , adju dicating h im guilty of indecency wit h a child b y contact , and se nten cing him to four years ’
i m prisonment

. The trial court certified Sc h aefe r ’ s right to appeal, and he appealed
f rom this judgment.
III. D ISCU SSION
I n one iss ue , Schaefer contends that “ [t]he trial court e r red in fin ding that

court

- o rdered delays caused by COVI D

- 1 9 now inhibited it from extending Appellant ’ s pr obation ” und er A rticle 42A.753 (c) (2)

. Relying on the Supreme Court Emergency Orders Regarding the C OVID

- 1 9 State of Disaster, Scha efer argues that
these orders “ specifically provi ded that a criminal court is permitted and in certain

case s required to ‘ modify or suspe nd a n y and all d eadlines and procedures, ’ including
those ‘ prescrib ed by statute. ’ ” See, e.g. , First Emergenc y Order Reg

ardin g the C OVID

- 19 State of Disaster

, 596 S.W.3d 265 (

T e x . 2 0 2 0 )

. The State respon ds that a tr ial cour t ’ s authority to extend pro bati on p urs uant to A rticle 42A.753 has ce rtain limi tations,
among t hem the time limits impose d by Article 42A.753 ( c) (2), and “ [t]ho se time limits6

are not mere deadlines or pr ocedures that may be modified or extended pursu ant to the Emergency Orders ” ; rather, t hey are jurisdi c tional. Therefore, the Sta te maintains
that the t rial court correctly con cluded that it ha d no authority to extend p robation. We agr ee with the State.
A. Standard of Revie w W hile we generally review an order revoking probation under an a buse of
discretion sta ndard , Rickels v. St ate , 202 S.W.3d 759, 763 (Tex. Crim . App. 2006) , w e review questio ns of law de no vo. Long v. Stat e , 535 S.W.3d 511, 519 (Tex. Crim. App.
2017 )

. T h us, t o the extent an issue involves statutory interpretation or th e le ga l e ffect
of a court order, we apply a de novo standard of review. S ee Pruett v. St ate , 510 S.W.3d 925, 927 (Tex. Crim. App. 2017) (stating that statutory interpretation question is a question of law that is review ed de novo); s ee also Kim v. Ramos , 632 S.W. 3d 258, 265 (Te x. App.

— Houston [1 s t Dist.] 2021, no pet.) (applying de novo stan dard of review to Supreme Court Emergency Orders Regarding the COVID

- 1 9 Sta te of Disa s ter). B. Jurisd i ction in a Probation Revocation Proceeding A probation revocation pro ceeding is consider ed an extension of the origi nal sentencing portion of the defenda nt ’ s trial, and therefore , it is subject to the continuing jurisdiction of the trial c o urt. Cobb v. S ta te , 85 1 S.W.2d 871, 873

– 74 (Tex. Crim. Ap p. 1 993) . The trial co urt maintains jurisdicti on to hear a moti on to adjud icate guil t as long as the motion i s filed wit h the court and a capias is issued7

before the end of the def

endant ’ s probat

i onary period. P o rras v. State , 629 S.W.3d 288,
2 90 (Tex. App.

— Dallas 2020, pet. r ef ’ d ). A judge ma y ex ten d the ma ximum per iod of def er red adju dication community supervis ion in a m anner provided by Article s 42A.753 and 42A.757 4 of the Texas
Code of Crimin a l Proce d ure. Id

. ; see Te x. Code Crim. Proc. Ann. art s . 42A.103 (c) , 42A.753, 42A.7 57. Texas Code of Criminal Proc edure Artic le 42A.753 (c ) provid e s, (c) A c our t may extend a perio d of community supervision under Arti cle 42A. 752(a)(2) : ( 1 ) at any time d uring the superv is ion pe ri o d; or ( 2 ) befor e the first anniversary of the date th e s upervision period ends , if a motion for revocation of community supervision is filed b efore the d a te the supervision p eriod ends.
Tex. Code Crim. Proc. Ann. art. 42A.753 (c)

. T he extens ion of a period of c ommu ni ty
super vision may not excee d ten years f or a f irst, second, or third degree felony case . Id. art. 42A.753(a).
C. C OVID

- R elat ed Orders and Case s Under Texas Government Code Section 22.0035(b), the Texas Supreme Court ,

“ [n]otwi th stan di ng any other statu te
. . . may modify or suspend procedures fo r the conduct of any court proceeding a ffected b y a disaster during the pendency of a
di sa ster declared by the governor. ” Tex. Gov ’ t Code Ann. § 22.0035(b). In its “ First Emergency Ord er Reg ar ding the COVID

- 19 State o f Disaster, ” the supreme court

4 Schaefer makes no argument about this article.8

not ed that the governor had declared a state of disast er in all 254 counties in the State
of Texas “ in response to the imm i nent threat of the COVID

- 1 9 pandemic

. ”
596 S.W.3d at 265 ; see The Governor of the State of Tex., Proclamation No. 41

- 3720, 45 Tex. Reg. 20 94, 2094

– 95 (2020 ). The supreme court ’ s order p rovided in part , Subject only to cons tit utional limi tations, all courts i n T exas may i n a ny case, ci v il or criminal

— and must to avoid risk to court staff, parties, attorneys , j urors, and the public

— without a participant ’ s con sent: a. Modify or suspend an y and all deadli nes and procedures, whether prescribed by statut e , rule , or order, for a stated p eri o d ending no lat er than 30 days after the Governor ’ s state of disaster has b een lifted [.] First Emerge ncy Order

, 596 S.W.3 d at 265.
At the tim e of th e trial court ’ s hea r ing and ruling, the ap plicable orders were the Thirty

- Eighth and Fortieth Emergency Orders. Se e Th i rty

- Eig hth Emergency O rder Regarding COVID

- 19 State of Disaster , 629 S .W.3d 900 (Tex. 202 1) (order) ; Fort ieth Emergency Order Regarding C OVID

- 1 9 State of Di saster , 629 S.W.3d 911 (Tex. 2 021 ) (order)

. Both of those orders contained similar lan guage allowin g a co urt t o “ modify

or suspend any a n d all deadlines and procedures

. ” Thirty

- Ei ght h Eme rge ncy O rder

, 629 S. W.3d at 900 ; Fortieth Emergency O rde r , 629 S.W. 3d at 912

. The Texas Cour t of Criminal Appeals examined th is “ modify or suspend ” provision of the e mergency orders in St ate ex r el. Ogg , 618 S. W.3d 361 (Tex . Crim.
A pp. 2021) , wherein a tr ial court had conclu ded that it h ad the power under the

eme r gency o rders to conduct a bench trial despite the St ate ’ s refusal to consen t. Id. at9

362. The court n oted that th e language in the eme rgency order “ d oes not suggest that

a cou rt can create juris dic tion for itself w here the juri sdiction wou ld other wise b e absent or that a judge could create authority to preside over proceed ings over which the judg e w ould other

wise be barred from presiding

. ” Id. at 364. Rather, “ [i] f the Suprem e Court ’ s Emergency Or der were really i ntended to permit trial c ourts to enlar g e their own jurisdi c tion and to permit trial judges to en large the types of proceedings over which they hav e autho rity, we would expect a provision to explic itly
say so. ” Id

. a t 365. Theref

ore, the court co ncluded that the emergency orde r did not
confer upon th e trial court the authority to conduct a bench trial without the State ’ s

consent. Id. at 366.
In S t ate v . Temple , the Fourteenth Court of Appeals examined the emergency orders as they app lie d to Texas Code o f Criminal Procedur e A rtic le 42A.20 2 , which
lim it s a t rial court ’ s jurisdiction to suspend e xecution of a sentenc e the defendant has begun serv

ing t o an expiration date 180 days after execut ion of when the sentence

ac tually begins. 622 S. W.3d 592 (Tex. Ap p.

— Houston [14 th Dist .] 2021 , pet. re f ’ d).
The court noted that the “ 180

- day limit on a trial court ’ s jurisdiction to grant shock probation is j us t t hat

— a jurisd iction al limit

— an d it is strictly enforced. ” Id. at 59 4. Looking specifi cal ly at the “ modify or su s pend ” language of the emer genc y orders,
the court stated, “

Jurisdiction, however, concerns a t rial court ’ s power to make legally binding d ec isi ons and is not merely a ‘ proc edural ’ concept. ” Id. at 595. In add ition,
the court ex ami ned Ogg and its “ limitations ” of the emergenc y o r der as set out by the10

c ourt of c riminal a ppeals. Id. T he court concluded that the emergency order “ does not by it s t erms extend a trial judge ’ s a uthor ity to order shock probation beyo nd 180 days after a de fendant begins se rvin g a felony se nte n ce. ” Id. ; see S tate v. Br onson , 627 S.W.3d 520 , 521

– 22 (Tex. App.

— Texarkan a 2021 , no pet. ) ( same) ; see also Estr ada
v. State , 647 S.W. 3d 923, 925 (Tex. App.

— Fort Wor th 2022, pet . ref ’ d ) (mem. op. ) (holding that tri al court did not abu se its discretion in ex tending the 1 80

- d ay dead line to try defendant pursuant to the Inters tate A greement on Detainers Act because
defendant “ wai ve d his co mplaint by fai ling to object to the trial d ate, tha t the perio d
was extended beca use the final day of the 180

- day period fel l on a Sunday , a n d tha t the trial court w as empowered to sua sponte grant a one

- day ext ension ” ). Similarly, the First Co urt of Appeals looked at the emergency orders and Ogg in deciding whether a trial court coul d e xt end the seventy

- five

- day dea dline to r ule on a

mot ion for new trial under Texas Rule of Appellate Procedure 21.8(a). State v. Rodriguez , Nos. 01

- 20

- 0084 8

- CR, 01

- 20

- 00849

- CR , 20 22 WL 2976296, at *2 (Tex. Ap p.

— Houston [1 st Dist.] Jul y 28, 2022, pet
. re f ’ d ) (mem. op. , not de signated for publi cation

). Hold ing th a t the seventy

- five

- day dea dline is not procedural but rather jurisdictional in nature, the court concluded that the trial court lacked su bj ect

- matter jurisdiction to enter orde rs granting new t ri als , and there fore, t he orders were void.
Id. at *7 ; see Gar

ley v. State , Nos. 13

- 20

- 00336

- CR, 13

- 20

- 00337

- CR, 2022 WL 2348055 , at * 5 (Tex. App.

— Corpus Christi

– Edinbu r g, June 30 , 2022, pet
. ref ’ d ) (mem. op ., not designate d for publ icatio n) ( “ The deadline to r ule on a mo tion for new trial is not11

procedural in nature

—

it is jurisdic tional and, after it expires, the trial court loses authority to act in the case. ” ).
D . Application o f L aw to Facts Here, it is undisputed that the revocation hearing was condu cted more than a calendar year after the community superv ision would have otherw ise ended.
Schaefer ’ s argument is that the trial court could have e x tend ed his proba tion “ before the first anniversary of the d ate the supervisio n period end s ” under the COVID

- 19 emergency ord ers . See Tex. Code Crim. Proc. Ann. a rt. 42A.753 (c) (2)

. According to Schaefer, this is esp ecially true becaus e he “ enter ed plea s of tru e before the ons et of Covid 19, in January 2020, and well before the first anniversa ry would have come to pass in August 2020. ” Additionally, Sch aefer argues that Ogg is inapposite and actually

s upports his positio n be cause t he “ timing of t he probation ext en sion was procedural
and not substantive

. ”
But Schaefer ’ s argument ignor e s the fact that a probat ion revo c ation hearing is

an ext ension of the original sentencin g port ion of the defendant ’ s trial a nd is su bject

t o the continuin g jurisdiction o f the trial court. Cobb , 851 S.W. 2 d a t 87 4. 5 T he trial

5 Rely in g on Co bb , the State says that a “ probation revocation pro ceeding is an administrati ve hearing rather than a civil o r c riminal trial

. ” See Cobb , 851 S.W.2d at 873

. H owever, Cobb ’ s pronoun cement has since been rej ected by the Texas Court of Criminal Appeal s in E x parte D o an , 369 S.W.3d 205 , 212 (Tex. Cr im. App. 2012)

. There, the court of crimin al appeals stat ed, “ Community

- supervision revocation proceedings ar e no t a d ministrative hearings; they are judicial procee dings, to be governed by the rules e stablished to govern ju dici al proceedings. ” Doan , 369 S.W.3d at 212.12

court only retains jurisdict ion to hear a motion to a djud icate guilt if, bef ore the expiration of the defendant ’ s probation ary p eriod, a moti on is filed with the court and a capias is issued for the defendant ’ s arrest. Tex. Code Crim. P roc. Ann. art. 42A.751 ; Ex parte Donaldson , 86 S.W.3d 231, 232 (Tex. Cri m. A p p. 20 02) ( “ We have long held
that a trial court has jurisdiction to hear a m otion to revoke . . . as long a s the motion

wa s filed, and a w arrant or capias properly issues, during the probationary period. ” ).
While t he trial co urt ret ained jurisdiction to adjudicate Schaefer ’ s guilt, the
court had no authority to extend or modify t he original term of defe rred ad judication

comm unity supervisio n because it had exp ired. See Colson v. State , No. 01

- 14

- 01020

- CR, 2015 WL 7455770 , at *3 (T ex . App.

— Housto n [1 s t Di st.] Nov. 24, 2015, pet

. ref ’ d) (mem. op. , no t designate d for publ ication) ( “ Colson ’ s original t wo
- year term of
deferred

- adjudica tion community su pervision continued to run after t he State filed the motion to adjudicate, and th e autho rity of the trial cour t to c ontinue or modify
Colson ’ s supervision expired at the end of that two

- y ear term. ” ) ; see al so Ni cklas v.
State , 530 S .W.2d 537, 541 (Tex. Crim. App. 1 975 ) (rejecting State ’ s a rgument that
fil ing of a motion to revoke proba tion an d issuance of warr ant tol ls running of probationary period) ; Paredes v. State , No. 13

- 20

- 00272

- CR, 2022 W L 1250845 , at *3 (Tex. App.

— Corpus Christi

– Edinburg Apr. 28, 20 22, no pet.) (mem. op. , not d esignated for publication ) ( holding “ that the t ol l ing dea dl ines in the su pr em e co ur t

eme rgency orders pertaining to the Covid

- 19 pandemic do not extend the ti me to file the notice of appeal in a criminal case ” ) ; Arrieta v. State , 719 S.W.2d 393, 395 (T ex.13

App.

— Fort Wo rth 1986, pet. ref ’ d) (hol ding that t rial court canno t amend or m odif y probation onc e probation period expires because “ the court h as only the pow er granted to it by the code in dealing with probation ” )

. Similarly, the dea dline in Art icle 42A.753 ( c) of “ the first anni ve rsary of the date
the su pervisi on period ends ” is a j urisdictional limit on th e trial court ’ s aut hority to

ex tend a period of c omm unity supervis ion

. See Tex. Code Crim. Proc. Ann. a rt. 42A.753 (c) ; see als o Arrieta , 719 S.W.2d at 395. Therefore, i t is not “ merely a

‘ pr ocedural ’ concept
. ” See Temple , 62 2 S. W.3d at 595 ; see also R odriguez , 2022 WL 2976296, at *7. Accordingly, becaus e the trial court could not have extended
Schaefer ’ s probation pursuant to Article 42A.753 (c) (2) , Schaefer ’ s sole issue is
overruled

. I V. C ONCL USION Havin g overruled Schaefe r ’ s sole iss ue, t he judg ment of th e trial court is
af firmed. /s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Del ivere d : November 23, 2022