THe defendant filed a "Motion for a Speedy Trial" after a hold was placed upon him from my county while he was incarcerated in TDC. We did not get a bench warrant out until 45 days later, and he was transferred here. He is currently on probation (has not expired). He is arguing (with the help of his attorney) that his hearing was not held within 20 days so he is entitled to a dismissal. He also asserts that this has prejudiced his status for purposes of parole etc. My question: Does this apply. Can't I argue that he is not incarcerated on the MTR, but is being held in TDC for a prior sentence. What should I do? Since he is currently on probation, could I dismiss the MTR and refile it alleging the same violations with the additional months he has failed to report, or would that just make things more confused? Does he have a point? Confused!

Hi, Mike--

I would think your best argument would be that this defendant is being held in TDC on another charge--not on the MTR. Section 42.12(21) states that "If the defendant has not been released on bail", he shall be brought before the judge withing 20 days for a hearing. It seems to me that this language applies only if the defendant WOULD HAVE been able to be released had he been given bail on the MTR. In this particular case, this defendant would not have been able to be released on ANY MTR bail, because he's incarcerated on another charge. So whether or not he was able to (1)make bail or (2)get his hearing in 20 days should be a moot point--this section is designed to make sure defendants get their MTR hearings in a timely fashion, the same way the code specifies that Class B misdemeanors have to be filed in 15 days or a defendant is entitled to a bond reduction, etc. If he's going to be incarcerated regardless, I don't see how this applies. Of course, I don't have any time right now to see if there are cases to support this

This is just my humble opinion....I was taught by the best Good luck and tell everyone I said hello!

Carney v. State, 573 S.W.2d 24 (Tex.Cr.App.1978).
Nov 08, 1978. Here the D was revoked in Tarrant County based upon a Lubbock County conviction for agg robbery. The court then granted a new trial because the robbery case had been on appeal and therefore not final at the time of the revocation. The State then DM'd the petition. It appears the D was in custody on the robbery until nine months later, after the robbery conviction became final, the State filed another petition based upon the robbery. The court sentenced D to six years and cumulated that sentence with the Lubbock County case, giving the D credit from the date of filing of the original petition. The Court analogizes the state's predicament to a missing witness.

However, check the list of factors the court will consider upon the refile: State v. Reyes
--- S.W.3d ----, 2005 WL 236859 Tex.App.-San Antonio,2005. Feb 02, 2005 (Approx. 2 pages)