Fact situation: Defendant on probation; my office files a timely MRP before probation term expires. Subsequently probation officer sends over additional violations. ADA, not noticing expiration date has now run, files amended MRP with both old and new alleged violations.

Our judge now takes the position that the amended MRP supercedes original MRP, making original a nullity; therefore term has expired and defendant walks.

Our position is that amended MRP filed after term expires is nullity and court should proceed on original.

Who is right and why?

This excerpt from an unreported case may help:

Two requirements must be met for a trial court to acquire jurisdiction to revoke probation. The State must file with the trial court, before the expiration of the probationary period, a motion to revoke probation that alleges the probationer violated the terms of the probation judgment. Guillot v. State, 543 S.W.2d 650, 652 (Tex.Cr.App.1976). The trial court must then, before the expiration of the probationary period, issue a capias based upon the motion that orders the arrest of the probationer. Id.
Brecheisen v. State, No. 0452-98, 1999 WL 974266 (Tex.Crim.App. October 27, 1999)(not yet reported). Although the opinion reiterates the jurisdictional prerequisites for probation revocation, the issue in Brecheisen was not jurisdiction, but the appropriate harm analysis where the State failed to exercise due diligence in executing a timely issued capias. Guillot was cited in Brecheisen and is relied upon by Emerson. In Guillot, the State initially filed a timely motion to revoke probation, then filed an amended motion after the termination of the probationary period, and no capias was issued thereafter. Guillot, 543 S.W.2d at 652. The Court of Criminal Appeals held the trial court had jurisdiction to revoke probation in a hearing conducted after the probationary period expired, but the right of the court to revoke was limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. Id. at 652- 53. Guillot, then, stands for the inapposite proposition that the motion to adjudicate guilt cannot be amended after the probationary period expires in order to add allegations not contained in the original motion. Another case cited by Emerson, Coleman v. State, 632 S.W.2d 616 (Tex.Crim.App.1982), merely holds that the trial court has jurisdiction to conduct the revocation hearing after the probationary period expires.

The amended petition is a nullity:

"A trial court has jurisdiction to revoke community supervision after the term of community supervision has expired if the State filed a motion to revoke before expiration of the period and a capias or arrest warrant was issued before expiration of the period. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999); Shahan v. State, 750 S.W.2d 381, 382 & n. 1 (Tex.App.-Fort Worth 1988), aff'd, 792 S.W.2d 101 (Tex.Crim.App.1990). An amended motion to revoke filed after the expiration of the period does not confer jurisdiction on the trial court, however, and is nullity. Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976). Thus, the right of the court to revoke was limited to finding a violation of the conditions of appellant's community supervision alleged in the original revocation motion. Id.; Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.- Texarkana 1985, pet. ref'd)."

From Reynolds v. State, No. 2-02-088-CR, 2003 WL 21197442 at *2(Tex.App.-Fort Worth May 22, 2003, no pet.) (not designated for publication).