In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-21-00118-CR

___________________________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1511486

Before Bassel, Womack, and Walker, JJ.

Memorandum Opinion by Justice Womack

ALEXANDER PAUL SCHAEFER, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Alexander Paul Schaefer appeals from the trial court’s judgment 

revoking his probation,

1

adjudicating him guilty of indecency with a child by contact, 

and sentencing him to four years in prison. In one issue, he contends that the trial 

court erred by finding that the court-ordered delays caused by COVID-19 deprived 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 new punishment hearing. Because we disagree, we will affirm.

II. BACKGROUND

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 

synonymous.”).
3

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.”

2

 

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.” 
4

court’s file regarding two child pornography cases.

3

 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 

expired.

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. 
5

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. 

III. DISCUSSION

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 
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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 
7

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 

Article 42A.752(a)(2):

(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.
8

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 

lifted[.]

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 
9

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 
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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 
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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 The trial 

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 

at 212.
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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. 
13

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 

overruled.

IV. CONCLUSION

Having overruled Schaefer’s sole issue, the judgment of the trial court is 

affirmed.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: November 23, 2022