Sherman, Texas Probation Revocation Attorney: The Right to a Speedy Hearing (Part 1)

A Defendant formally accused of violating probation also has the right to a speedy revocation hearing. In addition to statutory provisions addressing timeliness in motions to revoke, the Court of Criminal Appeals has historically recognized two sources of law which provide for the right to a speedy revocation hearing: (1) the statutory and former common law doctrine of due diligence, and (2) Constitutional speedy hearing rights under Barker v. Wingo. 407 U.S. 514 (1971).  of due diligence has been superseded by statute in Article 42A.751(d).

In 2015, the Texas Legislature added the statutory due diligence defense to the Code of Criminal Procedure, which overrode the common law defense.  It states:  For the purposes of a hearing under Article 42A.751(d), it is an affirmative defense to revocation for an alleged violation based on a failure to report to a supervision officer as directed or to remain within a specified place that no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation contacted or attempted to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

When a motion to revoke is filed, the judge normally issues a warrant for the probationer’s arrest, though they may issue a summons.  After fifty years of recognition by the Court of Criminal Appeals, the common law doctrine of due diligence in executing a warrant in motions to revoke has been eliminated. Compare Peacock v. State, 77 S.W.3d 285, 288-89 (Tex. Crim. App. 2002) (finding it imprudent to overturn 40 years of precedent requiring due diligence by State in executing motion to revoke capias) with Garcia v. State, 387 S.W.3d 20, 22 (Tex. Crim. App. 2012) (“we conclude that the 2003 statutory amendments to the Texas Code of Criminal Procedure Article 42.12 replaced the common-law due-diligence scheme).