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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  of due diligence has been superseded by statute in Article 42A.751(d).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).

The reasons for the delay of a trial are important under the second prong, and the State will be required to put forward their reasons at a dismissal hearing.  Right now, blood and drug results from the State laboratory are taking six months or so to process.   A person sitting in jail on a misdemeanor is heavily prejudiced by waiting that long on a chemical result.   A person awaiting felony trial is not as prejudiced per the caselaw, but after nine months or so prejudice can sometimes be shown.   A lawyer should consider filing a speedy trial motion in any trial that will be lengthily delayed by chemical testing, DNA testing or other factors under the State’s control.

Timely assertion of the right is important as the third factor of the Barker analysis. The Court of Criminal Appeals recognized this in Zamorano when the Court categorized the Defendant’s request for speedy trial as “tardy” but found that the “defendant’s assertion of the right” prong should not weigh against the defendant because it was not a case where the Defendant never asked for a hearing and noted “nothing indicated an affirmative desire for delay” on the part of the defendant. Zamorano, 84 S.W.3d at 652.   There are often reasons that a defendant would want a delay in trial proceedings, especially in the case of a potentially large sentence.   An attorney filing continuances or a defendant continually signing pass slips can be something the Court will look at.  The Dallas Court in Reed stated that a motion to dismiss gets lesser weight than an assertion of the right/motion for speedy hearing in a probation revocation case.

Zamorano also illustrates that very little prejudice need be shown by the Defendant in cases involving considerable delay under the fourth prong of the Barker analysis. In fact, the Texas Court of Criminal Appeals found that missing 11 days of work and having to regularly check in with a bail bond company was sufficient prejudice in light of the delay. Zamorano, 84 S.W.3d at 654.

The Texas Court of Criminal Appeals analyzes both speedy trial and speedy revocation motion matters under the factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). These factors include: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the right (to a speedy trial), and (4) the possible prejudice to the Defendant as a result of the delay. As applied to this case, the State cannot overcome the presumptive prejudice associated with a thirty eight month delay in executing the capias, a similar delay in hearing from the time of issuance, and at least three of four Barker factors weigh in favor of dismissal.

In Barker, the U.S. Supreme Court stated that the “length of delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531.  The Texas Court of Criminal Appeals has found a two year and ten month delay between arrest and hearing on a speedy trial motion to be “presumptively prejudicial” in a “plain vanilla DWI case.” Zamorano v. State, 84 S.W. 3d 643, 649, 654 (Tex. Crim. App. 2002). In addition, the Zamorano Court found that the factor of delay, in and of itself, weighed “heavily against the State,” after considering the almost four-year delay between arrest and ultimate resolution of the case. Zamorano, 84 S.W.3d at 649.

Going back to the Constitution of the United States, American citizens are guaranteed a speedy and public trial.   The public part is why a Court cannot bar you from entering to watch a trial unless you are a witness, but the speedy part has been developed over the years.  I will concentrate on the State of Texas right to a Speedy Trial this week, which is overwhelmingly similar to the Federal Right but without a few federal specific statutes that can effect federal criminal cases. Additionally, citizens also have a right to a speedy hearing if the State of Texas files a motion to adjudicate or revoke probation, which is the procedure upon an alleged probation violation to impose sentence or modification.

The Sixth Amendment to the United States Constitution says that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  Article I, Section 10 of the Texas Constitution states that “[i]n In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.”