IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-76,635-03
EX PARTE JECIA JAVETTE MOSS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 20203 IN THE 86TH DISTRICT COURT
FROM KAUFMAN COUNTY
H ERVEY, J., delivered the opinion of the unanimous Court.
OPINION
Applicant, Jecia Javette Moss, pled guilty to aggravated assault and was placed on
deferred-adjudication community supervision for five years on October 4, 2000. Her
community supervision was subsequently revoked, and she was sentenced to confinement
in a state penitentiary. She now argues that the trial court lacked jurisdiction to revoke her
supervision and adjudicate her guilty because the motion to adjudicate was not timely
filed and the capias was not timely issued. We will grant relief.
F ACTS
The day Applicant’s period of community supervision expired—October 3,
Moss–2
2005—the State took a motion to adjudicate and an order directing the district clerk to
issue a capias for Applicant’s arrest directly to the judge, who signed both of them.
Applicant’s supervision was subsequently revoked, and she was sentenced to twelve
years’ confinement and a $1,500.00 fine.
On April 5, 2006, at the time of sentencing, the judge notified Applicant that he
would allow her to remain at large for twelve days before turning herself in at the
Kaufman County Sheriff’s Office to carry out her sentence. During that time, Applicant
filed a notice of appeal. However, instead of reporting to the Kaufman County Sheriff’s
Office on April 17, 2006, to be taken into custody and continue the appellate process, she
absconded from the jurisdiction. Subsequently, the State asked the Dallas Court of
Appeals to dismiss Applicant’s appeal, which it did on July 25, 2006. See Moss v. State,
No. 05-06-00556-CR, 2006 WL 2053491 (Tex. App.—Dallas July 25, 2006, no pet.)
(mem. op.) (not designated for publication). Applicant was arrested more than three years
later on November 13, 2009.
E X PARTE T OWNSEND
In its findings of fact and conclusions of law, the convicting court found that, even
if the motion to adjudicate was not timely filed or the capias timely issued, Applicant’s
claim is procedurally barred because she could have raised her jurisdictional issue on
direct appeal had she not absconded from the jurisdiction. We believe the court is
referring to this Court’s decision in Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App.
Moss–3
2004), in which this Court held that, when an applicant has an adequate remedy at law,
such as the appellate process, but that applicant does not make use of that remedy, the
applicant has forfeited his claim. Id. at 81–82.
Applicant can raise her claim that the trial court lacked jurisdiction to act despite this
Court’s holding in Townsend.
Because Applicant absconded, her direct appeal was dismissed, and, therefore, this
application is her first opportunity to assert this challenge. Although the capias eventually
issued by the clerk’s office was not in the appellate record, the document upon which the
Applicant relied (i.e., the order directing the clerk to issue the capias) was in that record.
In addition, Applicant raised her jurisdictional issue in her writ application and the capias
was, thereafter, included in the writ record (by order of this Court). See Ex parte Moss,
WR-76,635-03, 2014 WL 1512955 (Tex. Crim. App. Apr. 16, 2014) (per curiam) (not
designated for publication).
However, Applicant’s claim is different from the one raised in Townsend, in that
she is alleging facts that, if true, would prove that the trial court lacked jurisdiction to
revoke her supervision. In contrast, the applicant in Townsend raised an improper-
stacking claim, which was a non-jurisdictional claim. Townsend, 137 S.W.3d at 80. The
crucial difference between Townsend and the instant case is that constitutional rights can
be forfeited on habeas due to lack of action but a lack of jurisdiction cannot. Compare id.
at 81 (citing Ex parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App. 1996), Ex parte
Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994), Ex parte Groves, 571 S.W.2d 888,
Moss–4
890 (Tex. Crim. App. 1978)), T EX. C ODE C RIM. P ROC. art. 1.14(a) (“The defendant in a
criminal prosecution for any offense may waive any rights secured him by law . . .” but
not addressing jurisdiction); see also Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim.
App. 2002) (footnote omitted) (stating that the Great Writ “is available only for relief
from jurisdictional defects and violations of constitutional and fundamental rights”), with
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (citing Garcia v. Dial, 596
S.W.2d 524, 527 (Tex. Crim. App. 1980)) (“[A] number of requirements and
prohibitions . . . are essentially independent of the litigants’ wishes. Implementation of
these requirements is not optional and cannot, therefore, be waived or forfeited by the
parties. The clearest cases of nonwaivable, nonforfeitable systemic requirements are laws
affecting the jurisdiction of the courts.”).
We have held that a lack of personal or subject-matter jurisdiction deprives a court
of any authority to render a judgment. See Garcia, 596 S.W.2d at 527 (quoting Ex parte
Armstrong, 110 Tex. Crim. 362, 366, 8 S.W.2d 674, 675–76 (1928) (stating that “[u]nless
the power or authority of a court to perform a contemplated act can be found in the
Constitution or laws enacted thereunder, it is without jurisdiction and its acts without
validity.”)). We have further explained that when a court acts without jurisdiction, such as
by entering a judgment without the necessary authority to do so, the purported action
taken by the court is void. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001)
(identifying a lack of personal or subject-matter jurisdiction as reasons a judgment would
Moss–5
be void). Thus, for example, when a defendant is convicted at trial, but his trial counsel
was ineffective, the court had jurisdiction to hold the trial and sentence the defendant,
although defendant might later obtain relief in the form of a new trial for a constitutional
violation. In contrast, if a defendant confesses and is convicted at trial because he is guilty
of the crime committed, but the court lacked subject-matter or personal jurisdiction over
the defendant, the judgment of conviction is void. See Marin, 851 S.W.2d at 279 (citing
Garcia, 596 S.W.2d at 527).
This Court’s decision in Ex parte Sledge, 391 S.W.3d 104, 108 (Tex. Crim. App.
2013), which was handed down after Townsend, also elucidates the difference between
Townsend and the instant case. In Sledge, the applicant did not appeal his conviction, but
filed an initial writ application seeking to obtain relief, which was denied. Later, he
brought a successive writ application arguing that that trial court lost jurisdiction to
adjudicate him guilty and revoke his deferred-adjudication community supervision
because the capias for his arrest was issued three days after his supervision expired. Id. at
106. We dismissed his application because the applicant did not allege a new legal basis
or sufficiently new factual basis upon which to justify this Court’s consideration of his
subsequent writ. Id. at 106–07, 111; see T EX. C ODE C RIM. P ROC. art. 11.07, § 4. We
rejected the applicant’s allegation that he could not have discovered the factual basis for
his claim until after he filed his initial postconviction writ application because he could
have learned of the factual basis for relief he cited in his subsequent application through
Moss–6
the exercise of due diligence. See Sledge, 391 S.W.3d at 106–07 (stating that “it is readily
apparent that the applicant could have easily obtained the information before now, just as
he did for the purpose of developing his current post-conviction writ application”). And
although the applicant did not cite a new legal basis as justification for this Court to
consider his subsequent writ application, we did note that a legal basis for relief was
available to him at the time he filed his initial writ in the form of a decision from this
Court. See Langston v. State, 800 S.W.2d 553, 554 (Tex. Crim. App. 1990) (per curiam),
overruled on other grounds by Harris v. State, 843 S.W.2d 34, 35 n.1 (Tex. Crim. App.
1992) (holding that the jurisdiction of a trial court to adjudicate a defendant’s guilt is lost
if the clerk fails to issue a capias as required by law). Thus, our decision in Sledge stands
for at least two principles relevant to this case: (1) jurisdictional claims are not normally
subject to typical notions of procedural default (which is why Applicant can raise her
claim here), but (2) the Legislature can permissibly restrict the cognizability of courts to
hear jurisdictional claims on habeas (which is why the applicant in Sledge could not raise
his claim in a subsequent writ application). See Sledge, 391 S.W.3d at 106–09, 111.
In sum, we hold that Townsend is not applicable to jurisdictional claims raised in
an initial writ application because, absent legislation to the contrary (such as the statute
discussed in Sledge), we have held that a lack of jurisdiction renders a judgment void and
that claims challenging a court’s lack of jurisdiction are cognizable in an initial writ
application. However, we caution individuals seeking habeas relief in a subsequent writ
Moss–7
application that Sledge continues to bar an applicant from obtaining relief on a
jurisdictional claim in a subsequent application if the applicant cannot overcome
applicable procedural bars.1
L ACHES
The State argues that laches should apply to Applicant’s claim because she
voluntarily absconded from the jurisdiction of the court to avoid serving her sentence. See
Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013). It also asserts that laches should
bar our consideration of Applicant’s claim because “it is highly unlikely that the trial
court or any of its personnel, or the deputy clerks involved, would retain a distinct
memory of something as routine and commonplace as file-marking of a document and
issuance of a warrant after three or four years.”
In Perez, this Court revised its approach to laches by abandoning the more
permissive federal laches standard in favor of the Texas common-law definition of laches.
See Ex parte Perez, No. AP-76,800, slip op. at 8 (Tex. Crim. App. Oct. 8, 2014). Under
1
Addressing the procedural bar for subsequent writs and whether a jurisdictional claim is
immune to such a bar, this Court stated
Had the applicant properly raised his present claim in his original writ, we would
not hesitate to reach the merits and, if appropriate, grant relief. But in the context
of subsequent post-conviction writ applications, the Legislature has validly
exercised its constitutionally-endowed regulatory authority to make it clear that
only those claims that fit within the statutory exceptions prescribed by
Subsections 4(a)(1) and (2) of Article 11.07 are cognizable.
See Sledge, 391 S.W.3d at 108–09 (emphasis omitted).
Moss–8
the common-law standard, courts consider the totality of the circumstances, including the
reasons for delay in seeking relief, the missing people or faded memories of people
material to the case, loss of evidence and trial records, the State’s diminished ability to
retry a defendant, and the State’s interest in finality. Id. at 6–8.
The doctrine of laches does not bar Applicant’s claim because the State was not
prejudiced by her tardy filing of her writ application.
In this case, however, while Applicant admittedly absconded from the jurisdiction
and did not file her initial writ application until approximately five years after she was
adjudicated guilty and sentenced, no evidence or trial records have been lost. And the
State cannot retry Applicant if she prevails on her claim, because the trial court had lost
jurisdiction to adjudicate Applicant guilty when her period of community supervision
ended. Finally, the State’s argument that it was prejudiced by diminished memories and
missing people is without merit because the resolution of Applicant’s claim turns on
documents in the record and this Court’s legal analysis. Therefore, after considering the
entire record and the totality of the circumstances, we hold that laches does not apply to
Applicant’s claim because the State was not prejudiced.
A RTICLE 42.12, S ECTION 5(h)
We now turn to the merits of Applicant’s claims and the reasons for which we
filed and set this case for submission:
whether, when the trial court signs the motion to adjudicate and directs the
district clerk to issue capias within the period of community supervision,
but the motion is file-stamped by the clerk and the pre-revocation warrant
Moss–9
issued after the expiration of the period of community supervision, the trial
court retains jurisdiction to proceed to adjudication under Article 42.12,
Section 5(h) of the Texas Code of Criminal Procedure.
Ex parte Moss, 2014 WL 1512955, at *1.
Before Article 42.12, Section 5(h), was added to the Texas Code of Criminal
Procedure, this Court held that for a trial court to have jurisdiction to adjudicate the guilt
of a defendant who was on community supervision, “both the motion to revoke and capias
for arrest must be issued prior to the termination of the probationary period.” 2 Guillot v.
State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976); see also Prior v. State, 795 S.W.2d
179, 184 (Tex. Crim. App. 1990) (noting that this Court will interpret similar regular
community-supervision statutes and deferred-adjudication community-supervision
statutes similarly); Rodriguez v. State, 804 S.W.2d 516, 517 n.1 (Tex. Crim. App. 1991)
(per curiam).
In 2003, the 78th Legislature codified this Court’s holdings with respect to when a
trial court retains jurisdiction to adjudicate a defendant on deferred-adjudication guilty
beyond the expiration of that defendant’s period of supervision in Article 42.12, Section
2
This Court had also held that the State had to exercise due diligence in executing the
issued capias. See Prior v. State, 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). Later, we
disavowed the holding that the due-diligence requirement was jurisdictional and, instead,
explained that it was a plea in bar or defense that must be raised by the defendant at the
revocation hearing. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The
“due diligence” defense was later codified by the Legislature in Article 42.12, Section 24 as an
affirmative defense. See TEX . CODE CRIM . PROC. art. 42.12, § 24. The statutory “due diligence”
defense is available to a defendant in a hearing to revoke community supervision for “regular”
community supervision (Section 21(b-2)) or deferred-adjudication community supervision
(Section 5(b)). Id.
Moss–10
5(h). Acts of May 31, 2003, 78th Leg., R.S. ch. 250, § 1, 2003 Tex. Gen. Laws 1158,
1158. Article 42.12, Section 5(h) states that,
A court retains jurisdiction to hold a hearing under Subsection (b) and to
proceed with an adjudication of guilt, regardless of whether the period of
community supervision imposed on the defendant has expired, if before the
expiration the attorney representing the state files a motion to proceed with
the adjudication and a capias is issued for the arrest of the defendant.
T EX. C ODE C RIM. P ROC. art. 42.12, § 5(h). Thus, the requirement that the capias be issued
before the expiration of the supervision period was carried over into the statute. See
Garcia v. State, 387 S.W.3d 20, 23 (Tex. Crim. App. 2012). Likewise, the Legislature
also included in the same statutory provision the requirement that the motion to adjudicate
be filed before the expiration of the defendant’s community-supervision period. Id.
Because the Legislature codified this Court’s judicially-fashioned jurisdictional rule with
respect to community supervision, we find our interpretations of those requirements
before the adoption of Article 42.12, Section 5(h), to be instructive on the jurisdictional
questions presented in this case.3
With respect to the timely issuance of the capias, we held in Langston that “a trial
court loses jurisdiction to proceed to adjudicate a defendant’s guilt when the district clerk
3
In Awadelkariem v. State, 974 S.W.2d 721, 725–26 (Tex. Crim. App. 1998), we stated
that “[w]e presume the Legislature intends the same construction to continue to apply to a statute
when the Legislature meets without overturning that construction. That maxim applies whether
the construction at issue is a judicial decision or a judicially-promulgated rule.” Id. (internal
citation omitted); see Garcia, 387 S.W.3d at 22 (concluding that the 78th Legislature statutory
additions to Article 42.12 effectively codified the filing-of-the-motion and issuance-of-the-capias
requirements while leaving out the common-law due-diligence defense).
Moss–11
fails to issue a capias before his probationary period expires.” Sledge, 391 S.W.3d at 106
(citing Langston, 800 S.W.2d at 554); cf. Coffey v. State, 500 S.W.2d 515, 516 (Tex.
Crim. App. 1973) (rejecting the State’s argument that the timely issuance of a capias
tolled the term of community supervision such that the later filing of the motion to
adjudicate was timely and concluding that the judgment revoking the appellant’s
community supervision was void). However, we overruled the appellant’s claim that the
trial court lacked jurisdiction to adjudicate him guilty because, although his period of
community supervision had already expired, the motion to revoke probation was filed and
the capias was issued before the expiration of that period. Langston, 800 S.W.2d at 554.
We have reached the same conclusion in a number of other cases, and in each case we
have emphasized that the filing of the motion to adjudicate and the issuance of the capias
are the relevant triggering events under the statute.4
Based on our voluminous and uninterrupted caselaw on this topic, and the
Legislature’s codification of our judicially-fashioned rule without modification,5 we will
continue to interpret Article 42.12, Section 5(h), as we applied it before the statutory
4
See, e.g., Whitson v. State, 429 S.W.3d 632, 636 (Tex. Crim. App. 2014); Ex parte
Donaldson, 86 S.W.3d 231, 232 (Tex. Crim. App. 2002) (per curiam); Peacock v. State, 77
S.W.3d 285, 287–88 (Tex. Crim. App. 2002); Prior, 795 S.W.2d at 183 (citing Lovell v. State, 74
S.E.2d 570, 572 (S.C. 1953)); Coleman v. State, 632 S.W.2d 616, 617–18 (Tex. Crim. App.
[Panel Op.] 1982); Shahan v. State, 792 S.W.2d 101, 102–03 (Tex. Crim. App. 1990);
Rodriguez, 804 S.W.2d at 517–18; Coffey, 500 S.W.2d at 515–16.
5
See Garcia, 387 S.W.3d at 23 (noting that the Legislature codified this Court’s rule
regarding the jurisdiction of a trial court to revoke a probationer’s community supervision after
the period of supervision expires).
Moss–12
provision was adopted by the Legislature. Thus, the relevant time period with respect to
the capias requirement remains the time at which the capias is actually issued. We also
note that this conclusion comports with the applicable definition of capias in Chapter 23
of the Texas Code of Criminal Procedure, which defines a capias as a writ that is “issued
by a judge of the court having jurisdiction of a case after commitment or bail and before
trial, or by a clerk at the direction of the judge.”6 T EX. C ODE C RIM. P ROC. art. 23.01. This
result is also consistent with various provisions throughout the Code of Criminal
Procedure referencing a clerk issuing a capias.7
A PPLICATION
In this case, an order directing the district clerk to issue a capias was attached to
the motion to adjudicate that the judge signed and dated.
To the Clerk of Said Court:
You are hereby directed to issue a capias, with a copy of this Petition
for Revocation of Community Supervision Sentence and Final Adjudication
of Guilt attached thereto, for the arrest of Jecia Javette Moss, to answer the
6
Although the word capias is also defined in Chapter 43 of the Code of Criminal
Procedure, that definition is not applicable in this case because that definition pertains only to
enforcing judgments. See TEX . CODE CRIM . PROC. art. 43.015 (defining capias and capias pro
fine as they are used in Chapter 43). However, the definition of capias from Article 23.01(a) is
proper because the capias in question was issued “by a clerk at the direction of the judge,” and it
was issued to force Applicant to appear in court for a “trial” in the form of a revocation hearing.
See TEX . CODE CRIM . PROC. art. 23.01. The judgment revoking Applicant’s community
supervision was not entered until April 5, 2006, and the capias that issued for her arrest to
enforce that judgment of conviction when she failed to turn herself in is governed by Article
43.015(1) defining a capias for purposes of executing a judgment.
7
See, e.g., TEX . CODE CRIM . PROC. arts. 2.195, 17.16(c), 23.03(a), 23.031, 23.05(d).
Moss–13
charges of community supervision violation and that upon his (sic) arrest
[s]he shall be held without bond pending the hearing thereof.
The order was signed by the trial judge on October 3, 2005. Also contained in the writ
record is the capias that was issued by the clerk and is styled, “MTR WARRANT.” It is
directed to any peace officer of the State of Texas to arrest Applicant for
“AGGRAVATED ASSAULT (Probation Revocation).” This capias is dated October 6,
2005. Applicant’s community supervision expired on October 3, 2005.
We hold that, because the capias in this case was issued after the expiration of
Applicant’s period of supervision, the trial court did not retain jurisdiction to proceed to
adjudicate Applicant guilty and sentence her. In addition, because the trial court lacked
jurisdiction to proceed to adjudication, Applicant’s sentence was discharged. Therefore,
we grant Applicant relief.8 The judgment of conviction in Cause No. 20203 in the 86th
District Court is vacated.
Copies of this opinion shall be sent to the Texas Department of Criminal
Justice—Correctional Institutions Division and Pardons and Paroles Division.
Hervey, J.
Delivered: November 5, 2014
Publish
8
Because we conclude that the capias did not timely issue, we need not reach the question
of whether the motion to adjudicate was timely filed.