We have recently visited and revisited the issue of improperly-granted terms of community supervision in a variety of circumstances. In Busby v. State, No. 73, 797, slip op. at 1-3, 2001 Tex. Crim. App. LEXIS 20, at *1-*3, __ S.W.3d ___, ___ (Tex. Crim. App. March 7, 2001), the specific issue was a properly-requested shock probation improperly granted after the trial court's authority to grant it had expired. Busby discussed Stasey v. State, 283 S.W.2d 705 (Tex. Crim. App. 1985), in which the specific issue was a proper, but irregular, request for shock probation which was improperly granted before the trial court acquired authority. Busby, slip. op. At 3-5, 2001 Tex. Crim. App. LEXIS 20, at *3-*6, ___ S.W.3d at ___. Here the specific issue is the grant of community supervision when the trial court did not have, and would never have, authority to grant it.

In Busby, the applicant properly filed a motion for shock probation, between the sixtieth day after the date of sentencing and the 180^th day. The trial court did not act on the motion until over eight months after the date of sentencing. Id. at 2, 2001 Tex. Crim. App. LEXIS 20, at *1-*2, ___ S.W.3d at ___. The trial court undeniably had the authority to grant shock probation within the designated time period; its failure to act on the motion in a timely way could not be attributed to the applicant, who had made a timely and proper request. Id. at 5, 2001 Tex. Crim. App. LEXIS 20, at *6-*7, ___ S.W.3d at ___.

In Stasey, the defendant filed a motion for shock probation early, at the 43^rd day, but specifically requested in that motion that the trial court not act until its authority accrued after the sixtieth day. Again, the trial court undeniably had the authority to grant shock probation within the designated time period, but it acted before its authority accrued, granting shock probation on the 57^th day. Stasey, 683 S.W.2d at 706. Again, the trial court's failure to act on the motion in a timely way could not be attributed to the defendant, who had made a timely and proper request. Id. at 708.

The circumstances in the instant case are easily distinguishable from Busby and Stasey. Here, the trial court was statutorily barred from granting community supervision at all, with or without timely request from appellant. Tex. Code Crim. Proc. art. 42.12, §3(g). The timing of an otherwise-authorized grant of community supervision is not the issue; except by grant of a jury, community supervision is absolutely barred for applicant's offense in this case. Although I dissented in Ex parte Seidel, No. 1790-99, slip op. at 1-4, 2001 Tex. Crim. App. LEXIS 19, at *19-*25, ___ S.W.3d ___, ___ (Tex. Crim. App. February 28, 2001) (Johnson, J., dissenting), because I do not believe that, based on the facts presented in that case, the order in that case was void, an argument can be made that the order granting community supervision in this case is void. If not void, the grant is at least voidable, but applicant did not complain of the improper action by the trial court and should not now be heard to complain.

I join the majority except as to Part II B and concur in the judgment.

Johnson, J.

Date Delivered: April 11, 2001

Publish