Appellant failed to report to his community supervision officer. A motion to revoke was filed and a capias was issued before appellant's community supervision expired, but appellant was not arrested until sometime after his community supervision expired. The State's only attempt to contact appellant, before his arrest, was by mail to his last known mailing address. The question presented is whether the State should be barred from revoking appellant's community supervision on the ground that the State failed to exercise due diligence in apprehending appellant. I would answer that question "no" because appellant's own conduct impeded the State's efforts to contact him.

Whether a due diligence requirement exists and how that requirement manifests itself depends in part upon the nature of the State's authority to arrest a person who has violated the conditions of community supervision. The community supervision statute provides, in relevant part: "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. Any supervision officer, police officer or other officer with power of arrest may arrest such a defendant with or without a warrant upon the order of the judge to be noted on the docket of the court." ⁽¹⁾ One issue raised by the statutory language is whether the trial court has jurisdiction to revoke community supervision for someone who is arrested after the community supervision period has ended. Does the phrase "cause the defendant to be arrested" mean that the arrest must actually have occurred within the supervision period, or does it simply mean that the judge must have issued the order that later causes the arrest?

Without citing authority, Stover held that the trial court did have jurisdiction over a defendant arrested outside the community supervision ⁽²⁾ period provided that the following occurred within the community supervision period:

1. filing of the motion to revoke,

2. court action authorizing arrest (issuance of a capias or arrest warrant), and

3. a diligent effort to apprehend the defendant and to hear and determine the claimed violation (i.e. "due diligence). ⁽³⁾

In Prior, we reiterated this position and applied it to deferred adjudication. ⁽⁴⁾ In arriving at our conclusion, we relied upon Stover and two other cases, Fennell ⁽⁵⁾ and Leija ⁽⁶⁾. ⁽⁷⁾ Leija, in turn, relied solely upon Fennell. ⁽⁸⁾ There is, however, a factual difference between Prior (and Stover), on the one hand, and Leija and Fennell on the other. In both Leija and Fennell, the defendant had been arrested within the community supervision period but revocation did not occur until after the community supervision period had expired, ⁽⁹⁾ but in Prior, the arrest itself occurred after the community supervision period had expired. ⁽¹⁰⁾

Prior did not recognize this factual difference, but the opinion did quote extensively from Fennell in connection with Fennell's reliance upon two out-of-state cases. Before discussing the out-of-state cases, Fennell cited as relevant to its decision that "the violation occurred and the warrant of arrest for violation of the terms of probation issued long prior to the expiration" of the community supervision period. ⁽¹¹⁾ After reciting those facts, Fennell proceeded to rely upon opinions from the Supreme Courts of South Carolina and Florida, which construed statutes similar to the one at issue. ⁽¹²⁾ In Lovell, the Supreme Court of South Carolina found that the South Carolina statute contained no language "expressly requiring that the order of revocation be made within the probationary period" and further found that implying such a requirement would lead to adverse results: "Such a construction would enable one who has violated the terms of his probation to avoid the execution of his sentence by escaping from the custody of the probation officer and remaining in a foreign jurisdiction or in concealment until the period of probation has expired." ⁽¹³⁾ In Coker, the Florida Supreme Court commented about the Florida community supervision statute that "there is nothing in the quoted statute requiring that the order of revocation be executed within the probation period. All that is required during said period is that the warrant be issued." ⁽¹⁴⁾

Although Fennell, Lovell, and Coker focused expressly on the ability to carry on revocation proceedings after the community supervision period has expired, they all at least implied that arrest within the community supervision period was not a prerequisite for the attachment of jurisdiction. Fennell cited only commission of the violation and issuance of the warrant as the relevant facts while Coker expressly stated that issuance of the warrant was all that was required. Lovell's concern that the offender might secrete himself and elude capture likewise indicates that the offender did not have to be arrested within the community supervision period.

Nowhere in Fennell, Lovell, and Coker was there a requirement of due diligence. While Lovell did articulate a concern that an offender may elude authorities, that concern simply reinforced a decision to interpret the statute in conformity with its express language and hold that issuance of a warrant within the community supervision period was sufficient to confer jurisdiction. And while Fennell's quotation from Lovell included the articulated concern about an offender escaping and eluding capture, Fennell also quoted from Coker, which articulated no such concern. And Prior quoted Fennell's discussion of both Lovell and Coker. Hence, the statutory construction conducted in Fennell and Prior provide no basis for a due diligence requirement.

Absent a statutory basis, the diligence requirement must stem from general principles of equity. We have before recognized the existence of an equitable doctrine in criminal cases - laches, stemming from a delay in filing an application for writ of habeas corpus. ⁽¹⁵⁾ That due diligence is an equitable doctrine is reinforced by our holding that it is not a jurisdictional requirement - which it would be if it were included in the statutory requisites for revocation - but the absence of due diligence is simply a plea in bar or defense, which must be raised by the defendant at the plea hearing, or else be forfeited. ⁽¹⁶⁾

As an equitable doctrine, the due diligence doctrine is subject to equity's limitations. One of those limitations is the doctrine of "clean hands": a party cannot obtain equitable relief if the party's own wrongful conduct is partially responsible for the events at issue. ⁽¹⁷⁾ Here, appellant's own conduct is partially responsible for the failure of law enforcement to quickly apprehend him: appellant failed to report as required and did not respond to mail sent by authorities to his last known mailing address. Under the circumstances, I would hold that appellant was barred by his unclean hands from asserting an equitable defense based upon the State's failure to exercise due diligence in apprehending him.

I must respectfully dissent.

KELLER, Presiding Judge

Date filed: May 29, 2002

Publish

1. TEX. CODE CRIM. PROC., Art. 42.12, §21(b).

2. At the time, community supervision was referred to as "probation."

3. See Stover v. State, 365 S.W.2d 808, 809 (Tex. Crim. App. 1963).

4. Prior v. State, 795 S.W.2d 179, 184 (Tex. Crim. App. 1990).

5. Ex Parte Fennell, 284 S.W.2d 727 (Tex. Crim. App. 1955).

6. Leija v. State, 320 S.W.2d 3 (Tex. Crim. App. 1958).

7. Prior, 795 S.W.2d at 183.

8. Leija, 320 S.W.2d at 4.

9. Leija, 320 S.W.2d at 4; Fennell, 284 S.W.2d at 727-728.

10. 795 S.W.2d at 180.

11. Fennell, 284 S.W.2d at 728.

12. Id. at 728-729.

13. Fennell, 284 S.W.2d at 728 (quoting Lovell v. State, 223 S.C. 112, 74 S.E.2d 570, 572)

14. Id. at 729 (quoting State ex. rel. Lee v. Coker, 80 So.2d 462, 463)(emphasis added).

15. Ex Parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999).

16. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999).

17. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (Tex. Crim. App. 1995); Olmstead v. United States, 277 U.S. 438, 483-484 (1928)(Brandeis, J. dissenting)(regarding unclean hands: "The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress").