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Click here for the full text of this decision FACTS:Authorities charged Robert William Nesbit with the third-degree felony of indecency with a child on Sept. 7, 1988. On Nov. 10, 1988, he pleaded guilty. The trial judge granted him deferred adjudication and placed him on 10 years of probation. On Sept. 20, 1993, the probation department filed a Notification of Violation alleging that Nesbit had committed the offense of indecent exposure on Aug. 10, 1993. According to his therapist, Nesbit is “an exhibitionist, a condition he has suffered from since he was a young adult.” Although “his condition has very gradually improved,” he suffered a relapse, the therapist said. But the therapist concluded that “[t]here is no evidence whatsoever that [Nesbit] even has the potential for violent or dangerous behavior toward children or other adults.” At a hearing on April 29, 1994, the trial court adjudicated Nesbit’s guilt and placed him on regular probation for 10 years, beginning that very day. One condition of his probation was that he participate in the Electronic Monitoring Program (EMP) beginning on April 29, 1994, until Sept. 5, 1994. That condition required Nesbit to remain at his residence “at all times except during approved work hours or at other times approved in advance by the court or probation officer.” Throughout the next 10 years, authorities repeatedly required Nesbit to participate in the EMP program for short periods of time. On April 29, 2004, the state filed a Motion to Revoke Probation, alleging that Nesbit failed to avoid persons or places of disreputable character: namely, Nesbit admitted to his probation officer that he had associated with prostitutes, used drugs of some sort, masturbated and viewed pornography. Most of these incidents had allegedly occurred in 1999 and 2000. The most recent occurred in 2002. The penultimate entry in the probation file states: “Reviewed file and submitted file to Ct. Supervisor for PV motion; probation expires 4/28, 2004; failed sex offender polygraph test administered; continues with negative behavior – recommend revocation.” Nesbit filed a motion to quash the motion to revoke and claimed that the trial court did not have jurisdiction, because the motion was filed one day too late. He claimed that his probation had expired at midnight on April 28, 2004. The trial court, admitting that the legal issue was not settled, denied the motion, revoked Nesbit’s probation and sentenced him to 10 years in prison. On appeal, Nesbit asserted that “the trial court did not have jurisdiction to revoke his community supervision because the motion to revoke was filed one day after the ten-year period of supervision ended.” The 5th Court of Appeals analogized Nesbit’s situation to when a sentence of imprisonment ends: “When a defendant is sentenced to a term of imprisonment, that period expires on the day before the anniversary date of the sentencing.” The 5th Court further stated: “[W]e see no reason to require appellant to spend one more day on community supervision than he would have been required to serve had his sentence been imposed.” Because the trial court lacks jurisdiction to revoke probation if the motion to revoke is filed after the supervision period expires, the 5th Court deemed the trial court’s judgment of revocation a nullity. The state filed a petition for discretionary review, asking, “[h]ow should the date of the expiration of a period of community supervision be calculated?” HOLDING:Affirmed. The question of how one calculates the duration or expiration of a time period, the CCA stated, frequently depends upon the purpose of that time period. Generally speaking, the CCA stated, if one must perform some act before the expiration of a time period, that period is computed by excluding the first day and including the last day. But if one may exercise a particular right (or must suffer a particular penalty) during a period of time, that time period generally begins on the first day that the right may be exercised (or the penalty suffered) and expires at midnight of the day before the anniversary of the period. For example, the CCA stated, if a person is sentenced to 10 years of imprisonment on April 29th, that sentence expires at midnight on April 28th 10 years later. The operative rule, the CCA stated, is that the duration of a time period during which a person suffers specified restrictions upon his freedom by virtue of either a sentence of imprisonment or probation includes the first day in which such restrictions upon freedom operate and excludes the anniversary date. The same day cannot be double counted, the court stated. In this case, authorities placed Nesbit on probation on April 29, 1994. The 5th Court held that his term of probation ended 10 years later on April 28, 2004. Because Nesbit’s probation began on April 29, 1994, Nesbit suffered some restrictions upon his freedom on that day. The CCA rejected the state’s argument that Nesbit must serve 10 years and a day when he was placed on probation for exactly 10 years. The CCA therefore agreed with the 5th Court that the trial court did not have the jurisdiction to revoke Nesbit’s probation based on a motion to revoke filed the day after his term of probation expired. OPINION:Cochran, J., delivered the opinion of the court, in which Price, Womack, Johnson and Holcomb, JJ., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “Because the ‘month’ rule for computing time necessarily presupposes the exclusion of the first day, it irreconcilably conflicts with the probation statute’s requirement that the first day be included. As the local or special provision, the probation statute prevails over the general computation-of-time statute found in the Government Code unless the Government Code provision was enacted later in time and the manifest intent is that the Government Code provision prevail. Even if we assume that the provision now codified at �311.014(c) was enacted later in time, it cannot be said that the manifest intent of the Legislature was that this generic computation of time provision prevail over the more specific provisions found in the Code of Criminal Procedure.” DISSENT:Hervey, J., filed a dissenting opinion, in which Meyers and Keasler, JJ., joined. “I respectfully dissent. . . . The State filed its motion to revoke on April 29, 2004. The Court decides that the State’s motion to revoke was filed one day too late, because appellant’s ten-year probation began on April 29, 1994, and ended at midnight on April 28, 2004. I would decide that the State timely filed its motion to revoke because appellant’s probation began some time on April 29, 1994, and ended at midnight on April 29, 2004. “This Court has stated that the Code Construction Act set out in Chapter 311 of the Government Code controls the ‘computation of times provided in the Code of Criminal Procedure.’ . . . Section 311.005(12) of the Texas Government Code provides that a ‘Year’ means ’12 consecutive months.’ In computing a ‘year,’ therefore, it is necessary to compute ‘a number of months.’ Section 311.014(c) of the Texas Government Code provides, in relevant part, that if ‘a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun.’

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