stating that the timing of the State's efforts to locate the probationer, including whether those efforts occurred before or after the filing of a motion to revoke and the issuance of a capias, are factors that reflect on the diligence of the State's efforts
How later courts described this case
- stating that the timing of the State's efforts to locate the probationer, including whether those efforts occurred before or after the filing of a motion to revoke and the issuance of a capias, are factors that reflect on the diligence of the State's efforts
- holding due diligence may be shown by pre-capias diligence
- that a decision was poorly reasoned is a factor that can be considered in determining whether to overrule precedent
- abandoning rule in Harris concerning pre-capias due diligence
Written by the judges who cited it.
The opinion
JOHNSON, J.,
filed a concurring opinion in which Meyers, J., joined.
I concur in the judgment of the Court. I do not agree that Harris v. State, 843 S.W.2d 34 (Tex.Crim.App.1992), should be overruled. Harris’ holding appears on page 36.
The Court of Appeals incorrectly relied on the letters and phone call to 302 Sterling before the capias issued as evidence of the State’s diligence. That reliance was misguided because the State must show that it used diligence after the motion to revoke was filed and the capias issued.
I do not read that holding to require the courts to ignore pre-capias efforts to contact the probationer; it appears merely to proscribe reliance on such efforts as a basis for finding diligence by the state after the capias issues.
The appellant in Harris was easily findable with minimal effort. He continued to five on the same block and work in the same community, yet the authorities made little effort to contact him or known family members at their known addresses. This Court held that letters to the appellant before the capias issued did not make up for the complete lack of effort after issuance of the capias.
In this case, appellant failed to respond to pre-capias letters and telephone calls and moved without permission. His known contacts did not know his whereabouts or failed to respond to efforts to contact appellant. After the capias issued, telephone calls to appellant’s family were repeated, but their telephones were disconnected. Having exhausted known contacts, the state apparently quit looking.
While the state may be faulted for failing to enter appellant into TCIC/NCIC or to periodically check the city directory and telephone book, the law does not require a vain act. In such circumstances, pre-capi-as efforts may be a partial explanation of apparent lack of diligence post-capias. Harris did not forbid consideration of such pre-capias efforts, only reliance on them to justify de minimis efforts post-capias. The state must indeed show appropriate diligence after the capias issues. It may be appropriate to consider pr e-capias efforts in considering whether post-capias efforts constitute due diligence, but pre-capias efforts will not excuse inaction by the state after a capias issues.