But, despite the elimination of the common law due diligence “scheme,” the Court of Criminal Appeals has recognized in both pre-Garcia case law and post-Garcia case law that there exists a Constitutional speedy revocation hearing right even where claims of common law due diligence do not lie. The Court of Criminal Appeals specifically held this to be the case in Ballard v. State, stating “[a]lthough such a defendant cannot advance a due diligence defense, he has the statutory twenty-day remedy, and in appropriate circumstances, may have a Constitutional speedy hearing claim under Barker v. Wingo.” 126 S.W.3d 919, 921 n.8 (Tex. Crim. App. 2004)(citations omitted). The 20-day remedy is found in Texas Code of Criminal Procedure Article 42A.751(d) (If the defendant has not been released on bail as permitted under Subsection (c), on motion by the defendant, the judge who ordered the arrest for the alleged violation of a condition of community supervision shall cause the defendant to be brought before the judge for a hearing on the alleged violation within 20 days of the date the motion is filed.)
Speedy hearing is a right whose recognition dates back at least as far as 1972 as illustrated by the Court of Criminal Appeals in Carney v. State, 573 S.W.2d 24, 26 (Tex. Crim. App. 1978) (“The right to a speedy trial guaranteed by the Constitutions of the United States and Texas is applicable to probation revocation hearings.”) (citations which include cases dating back to 1972 omitted). Per Carney, a denial of speedy revocation rights should be analyzed in the same manner as a denial of speedy trial under the Barker v. Wingo four prong balancing test. Carney, 573 S.W.2d at 27. The Dallas Court of Appeals has recognized this proposition of law as recently as 2015 in the unpublished case of Reed v. State, 2015 WL 4485550 (Tex. App.—Dallas 2015).