Facts:

P.O. Respondent ordered to attend and complete BIPP classes. Doesn't do it; held in contempt and put on probation under condition that he attend and complete BIPP classes. He didn't do it; was brought back to court on a motion to revoke and miraculously continued on probation with same condition. Didn't do BIPP and we filed a motion to revoke. We had problems finding him to serve; we finally got him served, and the probation period has expired.

Question:

Does the same rule apply to a civil contempt proceeding that applies in a criminal revocation of probation hearing, i.e., that as long as you file before probation expires and you use due diligence to locate, Court has jurisdiction to revoke probation?

"It is our studied decision that the discretion the trial judge has to revoke the suspension of commitment for contempt and probation ordered terminates when the period of probation has expired without a motion to revoke having been filed during the period of probation, and that the contemnor cannot afterwards be committed under the prior order of contempt. Our holding of the termination of the judge's discretion under such circumstances is the same holding applicable to revocation of probation in criminal cases under similar circumstances. See, e.g., McBee v. State, 166 Tex.Crim. 562, 316 S.W.2d 748, 749 (1958)."

Ex parte Spikes, 909 S.W.2d 245, 247 (Tex.App.-Amarillo Oct 10, 1995)

Don't forget that in 2003, the legislature overruled applicable caselaw and repealed the court-created "due diligence" requirement in probation revocation cases (see CCP Art. 42.12, Secs. 21(e) and 24). You might try arguing that the same logic applies in non-Art. 42.12 cases if you anticipate problems establishing due diligence in your particular case.

I always appreciate the help and insight I get on the Forums.