By Whitmire S.B. No. 1608
75R2120 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the repeal of archaic provisions in the Code of
1-3 Criminal Procedure, the amendment of the code to conform to certain
1-4 judicial decisions, and other technical corrections in the code.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 1.03, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 1.03. CONSTRUCTION [OBJECTS OF THIS CODE]. This Code
1-9 is intended to ensure the just determination of every criminal
1-10 proceeding and shall be construed to secure simplicity in
1-11 procedure, fairness in administration, and elimination of
1-12 unjustifiable expense and delay. [embrace rules applicable to the
1-13 prevention and prosecution of offenses against the laws of this
1-14 State, and to make the rules of procedure in respect to the
1-15 prevention and punishment of offenses intelligible to the officers
1-16 who are to act under them, and to all persons whose rights are to
1-17 be affected by them. It seeks:]
1-18 [1. To adopt measures for preventing the commission of
1-19 crime;]
1-20 [2. To exclude the offender from all hope of escape;]
1-21 [3. To insure a trial with as little delay as is
1-22 consistent with the ends of justice;]
1-23 [4. To bring to the investigation of each offense on
1-24 the trial all the evidence tending to produce conviction or
2-1 acquittal;]
2-2 [5. To insure a fair and impartial trial; and]
2-3 [6. The certain execution of the sentence of the law
2-4 when declared.]
2-5 SECTION 2. Article 1.04, Code of Criminal Procedure, is
2-6 amended to read as follows:
2-7 Art. 1.04. TIME LIMITS; TERM OF COURT. If an act is
2-8 required to be completed within a time limit established by this
2-9 code, the expiration of the term of a court does not affect that
2-10 requirement. [DUE COURSE OF LAW. No citizen of this State shall be
2-11 deprived of life, liberty, property, privileges or immunities, or
2-12 in any manner disfranchised, except by the due course of the law of
2-13 the land.]
2-14 SECTION 3. Article 2.09, Code of Criminal Procedure, is
2-15 amended to read as follows:
2-16 Art. 2.09. WHO ARE MAGISTRATES. Each of the following
2-17 officers is a magistrate within the meaning of this Code: The
2-18 justices of the Supreme Court, the judges of the Court of Criminal
2-19 Appeals, the justices of the Courts of Appeals, the judges of the
2-20 District Court, [the magistrates appointed by the judges of the
2-21 district courts of Bexar County, Dallas County, Tarrant County, or
2-22 Travis County that give preference to criminal cases, the criminal
2-23 law hearing officers for Harris County appointed under Subchapter
2-24 L, Chapter 54, Government Code, the magistrates appointed by the
2-25 judges of the district courts of Lubbock County or Webb County, the
2-26 magistrates appointed by the judges of the criminal district courts
2-27 of Dallas County or Tarrant County, the masters appointed by the
3-1 judges of the district courts and the county courts at law that
3-2 give preference to criminal cases in Jefferson County,] the county
3-3 judges, the judges of the county courts at law, judges of the
3-4 county criminal courts, the judges of statutory probate courts, the
3-5 justices of the peace, the magistrates, masters, and hearing
3-6 officers authorized by Chapter 54, Government Code, to perform
3-7 duties in criminal cases, and the mayors and recorders and the
3-8 judges of the municipal courts of incorporated cities or towns.
3-9 SECTION 4. Article 2.16, Code of Criminal Procedure, is
3-10 amended to read as follows:
3-11 Art. 2.16. NEGLECTING TO EXECUTE PROCESS. If any sheriff or
3-12 other officer shall wilfully refuse or fail from neglect to execute
3-13 any summons, subpoena or attachment for a witness, or any other
3-14 legal process which it is made his duty by law to execute, he shall
3-15 be liable to a fine for contempt under Section 21.002, Government
3-16 Code [not less than ten nor more than two hundred dollars], at the
3-17 discretion of the court. [The payment of such fine shall be
3-18 enforced in the same manner as fines for contempt in civil cases.]
3-19 SECTION 5. Article 2.17, Code of Criminal Procedure, is
3-20 amended to read as follows:
3-21 Art. 2.17. CONSERVATOR OF THE PEACE. Each sheriff shall be
3-22 a conservator of the peace in his county, and shall arrest all
3-23 offenders against the laws of the State, in his view or hearing,
3-24 and take them before the proper court for examination or trial.
3-25 [He shall quell and suppress all assaults and batteries, affrays,
3-26 insurrections and unlawful assemblies. He shall apprehend and
3-27 commit to jail all offenders, until an examination or trial can be
4-1 had.]
4-2 SECTION 6. Article 4.01, Code of Criminal Procedure, is
4-3 amended to read as follows:
4-4 Art. 4.01. WHAT COURTS HAVE CRIMINAL JURISDICTION. The
4-5 following courts have jurisdiction in criminal actions:
4-6 1. The Court of Criminal Appeals;
4-7 2. Courts of appeals;
4-8 3. The district courts;
4-9 4. The criminal district courts;
4-10 5. The magistrates, masters, and hearing officers
4-11 authorized by Chapter 54, Government Code, to perform duties in
4-12 criminal cases [appointed by the judges of the district courts of
4-13 Bexar County, Dallas County, Tarrant County, or Travis County that
4-14 give preference to criminal cases and the magistrates appointed by
4-15 the judges of the criminal district courts of Dallas County or
4-16 Tarrant County];
4-17 6. The county courts;
4-18 7. All county courts at law with criminal
4-19 jurisdiction;
4-20 8. County criminal courts;
4-21 9. Justice courts; and
4-22 10. Municipal courts[; and]
4-23 [11. The magistrates appointed by the judges of the
4-24 district courts of Lubbock County].
4-25 SECTION 7. Article 4.03, Code of Criminal Procedure, is
4-26 amended to read as follows:
4-27 Art. 4.03. COURTS OF APPEALS. The Courts of Appeals shall
5-1 have appellate jurisdiction coextensive with the limits of their
5-2 respective districts in all criminal cases except those in which
5-3 the death penalty has been assessed. The courts of appeals do not
5-4 have appellate jurisdiction over a Class C misdemeanor conviction
5-5 in which the fine does not exceed one hundred dollars [This Article
5-6 shall not be so construed as to embrace any case which has been
5-7 appealed from any inferior court to the county court, the county
5-8 criminal court, or county court at law, in which the fine imposed
5-9 by the county court, the county criminal court or county court at
5-10 law does not exceed one hundred dollars,] unless the sole issue is
5-11 the constitutionality of the statute or ordinance on which the
5-12 conviction is based.
5-13 SECTION 8. Article 4.04, Code of Criminal Procedure, is
5-14 amended to read as follows:
5-15 Art. 4.04. COURT OF CRIMINAL APPEALS
5-16 Sec. 1. The Court of Criminal Appeals and each judge thereof
5-17 shall have, and is hereby given, the power and authority to grant
5-18 and issue and cause the issuance of writs of habeas corpus, and, in
5-19 criminal law matters, the writs of mandamus, procedendo,
5-20 prohibition, and certiorari. The court and each judge thereof
5-21 shall have, and is hereby given, the power and authority to grant
5-22 and issue and cause the issuance of such other writs or orders as
5-23 may be necessary to protect its jurisdiction or enforce its
5-24 judgments.
5-25 Sec. 2. The Court of Criminal Appeals shall have, and is
5-26 hereby given, final appellate and review jurisdiction in criminal
5-27 cases coextensive with the limits of the state[, and its
6-1 determinations shall be final]. The appeal of all cases in which
6-2 the death penalty has been assessed shall be to the Court of
6-3 Criminal Appeals. In addition, the Court of Criminal Appeals may,
6-4 on its own motion, with or without a petition for such
6-5 discretionary review being filed by one of the parties, review any
6-6 decision of a court of appeals in a criminal case. Discretionary
6-7 review by the Court of Criminal Appeals is not a matter of right,
6-8 but of sound judicial discretion.
6-9 SECTION 9. Article 4.05, Code of Criminal Procedure, is
6-10 amended to read as follows:
6-11 Art. 4.05. JURISDICTION OF DISTRICT COURTS. District courts
6-12 and criminal district courts shall have original jurisdiction in
6-13 criminal cases of the grade of felony, of all misdemeanors
6-14 involving official misconduct, [and] of misdemeanor cases
6-15 transferred to the district court under Article 4.17 of this code,
6-16 and in cases involving the forfeiture of bail bonds and personal
6-17 bonds taken in criminal cases in which the district court or
6-18 criminal district court has jurisdiction.
6-19 SECTION 10. Article 4.07, Code of Criminal Procedure, is
6-20 amended to read as follows:
6-21 Art. 4.07. JURISDICTION OF COUNTY COURTS. The county courts
6-22 shall have original jurisdiction of all misdemeanors of which
6-23 exclusive original jurisdiction is not given to the justice court,
6-24 and when the fine to be imposed shall exceed five hundred dollars.
6-25 The county courts have jurisdiction in cases involving the
6-26 forfeiture of bail bonds and personal bonds taken in criminal cases
6-27 in which the county court has jurisdiction.
7-1 SECTION 11. Article 4.08, Code of Criminal Procedure, is
7-2 amended to read as follows:
7-3 Art. 4.08. APPELLATE JURISDICTION OF COUNTY COURTS. The
7-4 county courts shall have appellate jurisdiction in criminal cases
7-5 of which justice courts and other lower [inferior] courts have
7-6 original jurisdiction.
7-7 SECTION 12. Article 4.09, Code of Criminal Procedure, is
7-8 amended to read as follows:
7-9 Art. 4.09. APPEALS FROM LOWER [INFERIOR] COURT. If the
7-10 jurisdiction of any county court has been transferred to the
7-11 district court or to a county court at law, then an appeal from a
7-12 justice or other lower [inferior] court will lie to the court to
7-13 which such appellate jurisdiction has been transferred.
7-14 SECTION 13. Article 4.10, Code of Criminal Procedure, is
7-15 amended to read as follows:
7-16 Art. 4.10. TO FORFEIT BAIL BONDS. County [courts and
7-17 county] courts at law shall have jurisdiction in the forfeiture and
7-18 final judgment of all bail bonds and personal bonds taken in
7-19 criminal cases of which said courts have jurisdiction.
7-20 SECTION 14. Article 4.11, Code of Criminal Procedure, is
7-21 amended to read as follows:
7-22 Art. 4.11. JURISDICTION OF JUSTICE COURTS. (a) Justices of
7-23 the peace shall have original jurisdiction in criminal cases:
7-24 (1) punishable by fine only; or
7-25 (2) punishable by:
7-26 (A) a fine; and
7-27 (B) as authorized by statute, a sanction not
8-1 consisting of confinement or imprisonment that is rehabilitative or
8-2 remedial in nature.
8-3 (b) The fact that a conviction in a justice court has as a
8-4 consequence the imposition of a penalty or sanction by an agency or
8-5 entity other than the court, such as a denial, suspension, or
8-6 revocation of a privilege, does not affect the original
8-7 jurisdiction of the justice court.
8-8 (c) Justices of the peace have jurisdiction in cases
8-9 involving the forfeiture of bail bonds and personal bonds taken in
8-10 criminal cases in which the justice of the peace has jurisdiction.
8-11 SECTION 15. Chapter 11, Code of Criminal Procedure, is
8-12 amended to read as follows:
8-13 CHAPTER 11. HABEAS CORPUS
8-14 Art. 11.01. WHAT WRIT IS. The writ of habeas corpus is the
8-15 remedy to be used when any person is restrained in his liberty. It
8-16 is an order issued by a court or judge of competent jurisdiction,
8-17 directed to any one having a person in his custody, or under his
8-18 restraint, commanding him to produce such person, at a time and
8-19 place named in the writ, and show why he is held in custody or
8-20 under restraint.
8-21 Art. 11.02. APPLICATION OF CHAPTER. This Chapter applies to
8-22 all cases of habeas corpus for persons illegally held in custody or
8-23 in any manner restrained in their personal liberty, for the
8-24 admission of prisoners to bail, and for the discharge of prisoners
8-25 before indictment upon a hearing. Instead of a writ of habeas
8-26 corpus in other cases heretofore used, a simple order shall be
8-27 substituted.
9-1 Art. 11.03 [11.02]. TO WHOM DIRECTED. The writ runs in the
9-2 name of "The State of Texas". It is addressed to a person having
9-3 another under restraint, or in his custody, describing, as near as
9-4 may be, the name of the office, if any, of the person to whom it is
9-5 directed, and the name of the person said to be detained. It shall
9-6 fix the time and place of return, and be signed by the judge, or by
9-7 the clerk with his seal, where issued by a court.
9-8 Art. 11.04 [11.03]. WANT OF FORM. The writ of habeas corpus
9-9 is not invalid, nor shall it be disobeyed for any want of form, if
9-10 it substantially appear that it is issued by competent authority,
9-11 and the writ sufficiently show the object of its issuance.
9-12 Art. 11.05 [11.04]. CONSTRUCTION. Every provision relating
9-13 to the writ of habeas corpus shall be most favorably construed in
9-14 order to give effect to the remedy, and protect the rights of the
9-15 person seeking relief under it.
9-16 Art. 11.06. SCOPE OF WRIT. The writ of habeas corpus is
9-17 intended to be applicable to all such cases of confinement and
9-18 restraint where there is no lawful right in the person exercising
9-19 the power or where, though the power in fact exists, it is
9-20 exercised in a manner or degree not sanctioned by law.
9-21 Art. 11.07. CONSTRUCTIVE CUSTODY. The words "confined,"
9-22 "imprisoned," "in custody," "confinement," and "imprisonment" refer
9-23 not only to the actual, corporeal, and forcible detention of a
9-24 person but likewise to any coercive measures by threats, menaces,
9-25 or the fear of injury whereby one person exercises a control over
9-26 the person of another and detains him within certain limits.
9-27 Art. 11.08. RESTRAINT. By "restraint" is meant the
10-1 kind of control which one person exercises over another, not to
10-2 confine him within certain limits but to subject him to the general
10-3 authority and power of the person claiming such right.
10-4 Art. 11.09. WHO MAY PRESENT APPLICATION. Either the party
10-5 for whose relief the writ is intended, or any person for him, may
10-6 present an application to the proper authority for the purpose of
10-7 obtaining relief.
10-8 Art. 11.10. APPLICANT. The word applicant, as used in this
10-9 Chapter, refers to the person for whose relief the writ is asked,
10-10 though the application may be signed and presented by any other
10-11 person.
10-12 Art. 11.11. REQUISITES OF APPLICATION. The application must
10-13 state substantially:
10-14 1. That the person for whose benefit the application
10-15 is made is illegally restrained in his liberty, and by whom, naming
10-16 both parties, if their names are known, or, if unknown, designating
10-17 and describing them;
10-18 2. When the party is confined or restrained by virtue
10-19 of any writ, order, or process, or under color of either, a copy
10-20 shall be annexed to the application, or it shall be stated that a
10-21 copy cannot be obtained;
10-22 3. When the confinement or restraint is not by virtue
10-23 of any writ, order, or process, the application may state only that
10-24 the party is illegally confined or restrained in his liberty;
10-25 4. There must be a prayer in the application for the
10-26 writ of habeas corpus; and
10-27 5. Oath must be made that the allegations of the
11-1 application are true, according to the belief of the petitioner.
11-2 Art. 11.12 [11.05]. BY WHOM WRIT MAY BE ISSUED [GRANTED].
11-3 The Court of Criminal Appeals, the District Courts, the County
11-4 Courts, or any Judge of said Courts, have power to issue the writ
11-5 of habeas corpus; and it is their duty, upon proper application
11-6 [motion], to issue [grant] the writ under the rules prescribed by
11-7 law.
11-8 Art. 11.13 [11.06]. JURISDICTION TO WHICH WRIT RETURNABLE
11-9 [TO ANY COUNTY]
11-10 Sec. 1. Before indictment is returned [found], the writ may
11-11 be made returnable to any court within the judicial district in
11-12 which the offense was committed [county in the State].
11-13 Sec. 2. After indictment is returned in a felony case but
11-14 before conviction, the writ must be made returnable in the county
11-15 in which the offense was committed.
11-16 Art. 11.14 [11.07]. PROCEDURE AFTER CONVICTION WITHOUT DEATH
11-17 PENALTY
11-18 Sec. 1. This article establishes the procedures for an
11-19 application for writ of habeas corpus in which the applicant seeks
11-20 relief from a final felony conviction [judgment] imposing a penalty
11-21 other than death.
11-22 Sec. 2. [After indictment found in any felony case, other
11-23 than a case in which the death penalty is imposed, and before
11-24 conviction, the writ must be made returnable in the county where
11-25 the offense has been committed.]
11-26 [Sec. 3.] (a) After final conviction in any felony case,
11-27 the writ must be made returnable to the Court of Criminal Appeals
12-1 of Texas at Austin, Texas.
12-2 (b) Whenever an application for writ of habeas corpus is
12-3 filed after final conviction in a felony case, other than a case in
12-4 which the death penalty is imposed, the clerk shall transfer or
12-5 assign it to the court in which the conviction being challenged was
12-6 obtained. When the application is received by that court, a writ
12-7 of habeas corpus, returnable to the Court of Criminal Appeals,
12-8 shall issue by operation of law. The clerk of that court shall
12-9 make appropriate notation thereof, assign to the case a file number
12-10 (ancillary to that of the conviction being challenged), and forward
12-11 [send] a copy of the application by certified mail, return receipt
12-12 requested, or by personal service, to the attorney representing the
12-13 state in that court, who shall then have 15 days from the date of
12-14 receipt in which it may answer the application. Matters alleged in
12-15 the application not admitted by the state are deemed denied.
12-16 (c) Within 20 days of the expiration of the time in which
12-17 the state is allowed to answer, it shall be the duty of the
12-18 convicting court to decide whether there are controverted,
12-19 previously unresolved facts material to the legality of the
12-20 applicant's confinement. Confinement means confinement for any
12-21 offense or any collateral consequence resulting from the conviction
12-22 that is the basis of the instant habeas corpus. If the convicting
12-23 court decides that there are no such issues, the clerk shall
12-24 immediately transmit to the Court of Criminal Appeals a copy of the
12-25 application, any answers filed, and a certificate reciting the date
12-26 upon which that finding was made. Failure of the court to act
12-27 within the allowed 20 days shall constitute such a finding.
13-1 (d) If the convicting court decides that there are
13-2 controverted, previously unresolved facts which are material to the
13-3 legality of the applicant's confinement, it shall enter an order
13-4 within 20 days of the expiration of the time allowed for the state
13-5 to reply, designating the issues of fact to be resolved. To
13-6 resolve those issues the court may order affidavits, depositions,
13-7 interrogatories, and hearings, as well as using personal
13-8 recollection. Also, the convicting court may appoint an attorney
13-9 or a magistrate to hold a hearing and make findings of fact. An
13-10 attorney so appointed shall be compensated as provided in Article
13-11 26.05 of this code. It shall be the duty of the reporter who is
13-12 designated to transcribe a hearing held pursuant to this article to
13-13 prepare a transcript within 15 days of its conclusion. After the
13-14 convicting court makes findings of fact or approves the findings of
13-15 the person designated to make them, the clerk of the convicting
13-16 court shall immediately transmit to the Court of Criminal Appeals,
13-17 under one cover, the application, any answers filed, any motions
13-18 filed, transcripts of all depositions and hearings, any affidavits,
13-19 and any other matters such as official records used by the court in
13-20 resolving issues of fact.
13-21 Sec. 3 [4]. (a) If a subsequent application for writ of
13-22 habeas corpus is filed after final disposition of an initial
13-23 application challenging the same conviction, a court may not
13-24 consider the merits of or grant relief based on the subsequent
13-25 application unless the application contains sufficient specific
13-26 facts establishing that:
13-27 (1) the current claims and issues have not been and
14-1 could not have been presented previously in an original application
14-2 or in a previously considered application filed under this article
14-3 because the factual or legal basis for the claim was unavailable on
14-4 the date the applicant filed the previous application; or
14-5 (2) by a preponderance of the evidence, but for a
14-6 violation of the United States Constitution no rational juror could
14-7 have found the applicant guilty beyond a reasonable doubt.
14-8 (b) For purposes of Subsection (a)(1), a legal basis of a
14-9 claim is unavailable on or before a date described by Subsection
14-10 (a)(1) if the legal basis was not recognized by and could not have
14-11 been reasonably formulated from a final decision of the United
14-12 States Supreme Court, a court of appeals of the United States, or a
14-13 court of appellate jurisdiction of this state on or before that
14-14 date.
14-15 (c) For purposes of Subsection (a)(1), a factual basis of a
14-16 claim is unavailable on or before a date described by Subsection
14-17 (a)(1) if the factual basis was not ascertainable through the
14-18 exercise of reasonable diligence on or before that date.
14-19 Sec. 4 [5]. The Court of Criminal Appeals may deny relief
14-20 upon the findings and conclusions of the hearing judge without
14-21 docketing the cause, or may direct that the cause be docketed and
14-22 heard as though originally presented to said court or as an appeal.
14-23 Upon reviewing the record the court shall enter its judgment
14-24 remanding the applicant to custody or ordering his release, as the
14-25 law and facts may justify. The mandate of the court shall issue to
14-26 the court issuing the writ, as in other criminal cases. After
14-27 conviction the procedure outlined in this Act shall be exclusive
15-1 and any other proceeding shall be void and of no force and effect
15-2 in discharging the prisoner.
15-3 Sec. 5 [6]. Upon any hearing by a district judge by virtue
15-4 of this Act, the attorney for applicant, and the state, shall be
15-5 given at least seven full days' notice before such hearing is held.
15-6 Sec. 6 [7]. When the attorney for the state files an answer,
15-7 motion, or other pleading relating to an application for a writ of
15-8 habeas corpus or the court issues an order relating to an
15-9 application for a writ of habeas corpus, the clerk of the court
15-10 shall mail or deliver to the applicant a copy of the answer,
15-11 motion, pleading, or order.
15-12 Art. 11.15 [11.071]. PROCEDURE IN DEATH PENALTY CASE
15-13 Sec. 1. APPLICATION TO DEATH PENALTY CASE. Notwithstanding
15-14 any other provision of this chapter, this article establishes the
15-15 procedures for an application for a writ of habeas corpus in which
15-16 the applicant seeks relief from a judgment imposing a penalty of
15-17 death.
15-18 Sec. 2. REPRESENTATION BY COUNSEL. (a) An applicant shall
15-19 be represented by competent counsel unless the applicant has
15-20 elected to proceed pro se and the convicting trial court finds,
15-21 after a hearing on the record, that the applicant's election is
15-22 intelligent and voluntary.
15-23 (b) If a defendant is sentenced to death on or after
15-24 September 1, 1995, the convicting court, immediately after judgment
15-25 is entered under Article 42.01, shall determine if the defendant is
15-26 indigent and, if so, whether the defendant desires appointment of
15-27 counsel for the purpose of a writ of habeas corpus. If a defendant
16-1 is sentenced to death, does not have an initial application for a
16-2 writ of habeas corpus under Article 11.07, as that article existed
16-3 immediately before September 1, 1995, pending on September 1, 1995,
16-4 and has not been denied relief by the court of criminal appeals in
16-5 an initial habeas corpus proceeding under that article [Article
16-6 11.07], the convicting court, as soon as practicable, shall
16-7 determine whether the defendant is indigent and, if so, whether the
16-8 defendant desires the appointment of counsel for the purpose of a
16-9 writ of habeas corpus.
16-10 (c) Immediately after the convicting court makes the
16-11 findings required under Subsections (a), (b), and (i), the clerk of
16-12 the convicting court shall forward to the court of criminal
16-13 appeals:
16-14 (1) a copy of the judgment;
16-15 (2) a list containing the name, address, and telephone
16-16 number of each counsel of record for the applicant at trial and on
16-17 direct appeal; and
16-18 (3) if the applicant elects to proceed pro se, any
16-19 findings made by the convicting court on the voluntariness of the
16-20 applicant's election.
16-21 (d) Unless an applicant elects to proceed pro se or is
16-22 represented by retained counsel, the court of criminal appeals
16-23 shall, under rules and standards adopted by the court, appoint
16-24 competent counsel at the earliest practicable time after receipt of
16-25 the documents under Subsection (c).
16-26 (e) The court of criminal appeals may not appoint an
16-27 attorney as counsel under this section if the attorney represented
17-1 the applicant at trial or on direct appeal, unless:
17-2 (1) the applicant and the attorney request the
17-3 appointment on the record; or
17-4 (2) the court finds good cause to make the
17-5 appointment.
17-6 (f) If counsel is the same person appointed as counsel on
17-7 appeal under Article 26.052, the court of criminal appeals shall
17-8 appoint a second counsel to assist in the preparation of the appeal
17-9 and writ of habeas corpus.
17-10 (g) If the court of criminal appeals denies an applicant
17-11 relief under this article, an attorney appointed under this section
17-12 to represent the applicant shall, not later than the 15th day after
17-13 the date the court of criminal appeals denies relief or, if the
17-14 case is filed and set for submission, the 15th day after the date
17-15 the court of criminal appeals issues a mandate on the initial
17-16 application for a writ of habeas corpus under this article, move to
17-17 be appointed as counsel in federal habeas review under 21 U.S.C.
17-18 Section 848(q) or equivalent provision or, if necessary, move for
17-19 the appointment of other counsel under 21 U.S.C. Section 848(q) or
17-20 equivalent provision.
17-21 (h) The court of criminal appeals shall reasonably
17-22 compensate an attorney appointed by the court under this section
17-23 from state funds. The court shall appoint and reasonably
17-24 compensate an attorney for representation in a subsequent or
17-25 untimely application for a writ of habeas corpus, if the court
17-26 determines that the requirements of Section 5 allowing
17-27 consideration of the application have been satisfied.
18-1 (i) If an attorney is representing an inmate under a
18-2 sentence of death for an initial application for a writ of habeas
18-3 corpus under Article 11.07, as that article existed immediately
18-4 before September 1, 1995, pending on September 1, 1995, the
18-5 attorney may request that the convicting court determine if the
18-6 defendant is indigent and, if so, whether the defendant desires
18-7 appointment of counsel for the purpose of the writ of habeas
18-8 corpus.
18-9 Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION. (a) On
18-10 appointment, counsel shall investigate expeditiously, before and
18-11 after the appellate record is filed in the court of criminal
18-12 appeals, the factual and legal grounds for the filing of an
18-13 application for a writ of habeas corpus.
18-14 (b) Not later than the 30th day before the date the
18-15 application for a writ of habeas corpus is filed with the
18-16 convicting court, counsel may file with the court of criminal
18-17 appeals an ex parte, verified, and confidential request for
18-18 prepayment of expenses, including expert fees, to investigate and
18-19 present potential habeas corpus claims. The request for expenses
18-20 must state:
18-21 (1) the claims of the application to be investigated;
18-22 (2) specific facts that suggest that a claim of
18-23 possible merit may exist; and
18-24 (3) an itemized list of anticipated expenses for each
18-25 claim.
18-26 (c) The court shall grant a request for expenses in whole or
18-27 in part if the request for expenses is timely and reasonable. If
19-1 the court denies in whole or in part the request for expenses, the
19-2 court shall briefly state the reasons for the denial in a written
19-3 order provided to the applicant.
19-4 (d) Counsel may incur expenses for habeas corpus
19-5 investigation, including expenses for experts, without prior
19-6 approval by the court of criminal appeals. On presentation of a
19-7 claim for reimbursement, which may be presented ex parte, the court
19-8 shall order reimbursement of counsel for expenses, if the expenses
19-9 are reasonably necessary and reasonably incurred. If the court
19-10 denies in whole or in part the request for expenses, the court
19-11 shall briefly state the reasons for the denial in a written order
19-12 provided to the applicant. The applicant may request
19-13 reconsideration of the denial for reimbursement.
19-14 (e) Materials submitted to the court under this section are
19-15 a part of the court's record.
19-16 Sec. 4. FILING OF APPLICATION. (a) An application for a
19-17 writ of habeas corpus, returnable to the court of criminal appeals,
19-18 must be filed in the convicting court not later than the 45th day
19-19 after the date the appellee's original brief is filed on direct
19-20 appeal with the court of criminal appeals. If an applicant who was
19-21 convicted before September 1, 1995, does not have an original
19-22 application for a writ of habeas corpus under Article 11.07, as
19-23 that article existed immediately before September 1, 1995, pending
19-24 on September 1, 1995, and has not previously filed an application
19-25 under that article [Article 11.07], the applicant's original
19-26 application must be filed not later than the 180th day after the
19-27 date the court of criminal appeals appoints counsel under Section 2
20-1 or not later than the 45th day after the date the appellee's
20-2 original brief is due on direct appeal, whichever is later.
20-3 (b) An application filed after the filing date that is
20-4 applicable to the applicant under Subsection (a) is presumed
20-5 untimely unless the applicant establishes good cause by showing
20-6 particularized justifying circumstances.
20-7 (c) If counsel has been appointed and a timely application
20-8 is not filed on or before the applicable filing date under
20-9 Subsection (a), the convicting court shall, before the 11th day
20-10 after the applicable filing date under Subsection (a), conduct a
20-11 hearing and determine if good cause exists for either the untimely
20-12 filing of an application or other necessary action.
20-13 (d) If the convicting court finds the applicant failed to
20-14 establish good cause for the delay, the court shall:
20-15 (1) make appropriate findings of fact;
20-16 (2) enter an order to that effect;
20-17 (3) direct the clerk of the court to enter a notation
20-18 that the petition is untimely; and
20-19 (4) send a copy of the petition, findings, and
20-20 notation to the court of criminal appeals as provided by Section 5.
20-21 (e) If the convicting court finds that the applicant has
20-22 established good cause for the delay, the convicting court shall
20-23 proceed as if the application was timely filed.
20-24 (f) Notwithstanding Subsection (b), (c), or (e), an
20-25 applicant cannot establish good cause for the untimely filing of an
20-26 application filed after the 91st day after the applicable filing
20-27 date under Subsection (a).
21-1 (g) A failure to file an application before the 91st day
21-2 after the filing date applicable to the applicant under Subsection
21-3 (a) constitutes a waiver of all grounds for relief that were
21-4 available to the applicant before the last date on which an
21-5 application could be timely filed, except as provided by Section 5.
21-6 (h) If an amended or supplemental application is not filed
21-7 within the time specified under Subsection (a), the court shall
21-8 treat the application as a subsequent or untimely application for a
21-9 writ of habeas corpus under Section 5, unless the applicant:
21-10 (1) establishes good cause by showing particularized
21-11 justifying circumstances for not raising in the original
21-12 application the facts or claims contained in the amended or
21-13 supplemental application; and
21-14 (2) the amended or supplemental application is filed
21-15 before the 91st day after the filing date applicable to the
21-16 applicant under Subsection (a).
21-17 Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION. (a) If an
21-18 original application for a writ of habeas corpus is untimely or if
21-19 a subsequent application is filed after filing an original
21-20 application, a court may not consider the merits of or grant relief
21-21 based on the subsequent or untimely original application unless the
21-22 application contains sufficient specific facts establishing that:
21-23 (1) the current claims and issues have not been and
21-24 could not have been presented previously in a timely original
21-25 application or in a previously considered application filed under
21-26 this article or Article 11.07, as that article existed immediately
21-27 before September 1, 1995, because the factual or legal basis for
22-1 the claim was unavailable:
22-2 (A) on the date the applicant filed the previous
22-3 application; or
22-4 (B) if the applicant did not file an original
22-5 application, on or before the last date for the timely filing of an
22-6 original application;
22-7 (2) by a preponderance of the evidence, but for a
22-8 violation of the United States Constitution no rational juror could
22-9 have found the applicant guilty beyond a reasonable doubt; or
22-10 (3) by clear and convincing evidence, but for a
22-11 violation of the United States Constitution no rational juror would
22-12 have answered in the state's favor one or more of the special
22-13 issues that were submitted to the jury in the applicant's trial
22-14 under Article 37A.05 or 37A.06 [37.071 or 37.0711].
22-15 (b) If the convicting court receives a subsequent
22-16 application or an untimely original application, the clerk of the
22-17 court shall:
22-18 (1) attach a notation that the application is a
22-19 subsequent or untimely original application;
22-20 (2) assign to the case a file number that is ancillary
22-21 to that of the conviction being challenged; and
22-22 (3) immediately send to the court of criminal appeals
22-23 a copy of:
22-24 (A) the application;
22-25 (B) the notation;
22-26 (C) the order scheduling the applicant's
22-27 execution, if scheduled; and
23-1 (D) any order the judge of the convicting court
23-2 directs to be attached to the application.
23-3 (c) On receipt of the copies of the documents from the
23-4 clerk, the court of criminal appeals shall determine whether the
23-5 requirements of Subsection (a) have been satisfied. The convicting
23-6 court may not take further action on the application before the
23-7 court of criminal appeals issues an order finding that the
23-8 requirements have been satisfied. If the court of criminal appeals
23-9 determines that the requirements have not been satisfied, the court
23-10 shall issue an order dismissing the application as an abuse of the
23-11 writ under this section.
23-12 (d) For purposes of Subsection (a)(1), a legal basis of a
23-13 claim is unavailable on or before a date described by Subsection
23-14 (a)(1) if the legal basis was not recognized by or could not have
23-15 been reasonably formulated from a final decision of the United
23-16 States Supreme Court, a court of appeals of the United States, or a
23-17 court of appellate jurisdiction of this state on or before that
23-18 date.
23-19 (e) For purposes of Subsection (a)(1), a factual basis of a
23-20 claim is unavailable on or before a date described by Subsection
23-21 (a)(1) if the factual basis was not ascertainable through the
23-22 exercise of reasonable diligence on or before that date.
23-23 Sec. 6. ISSUANCE OF WRIT. (a) If a timely application for
23-24 a writ of habeas corpus is filed in the convicting court, a writ of
23-25 habeas corpus, returnable to the court of criminal appeals, shall
23-26 issue by operation of law.
23-27 (b) If the convicting court receives notice that the
24-1 requirements of Section 5 for consideration of a subsequent or
24-2 untimely application have been met, a writ of habeas corpus,
24-3 returnable to the court of criminal appeals, shall issue by
24-4 operation of law.
24-5 (c) The clerk of the convicting court shall:
24-6 (1) make an appropriate notation that a writ of habeas
24-7 corpus was issued;
24-8 (2) assign to the case a file number that is ancillary
24-9 to that of the conviction being challenged; and
24-10 (3) send a copy of the application by certified mail,
24-11 return receipt requested, to the attorney representing the state in
24-12 that court.
24-13 (d) The clerk of the convicting court shall promptly deliver
24-14 copies of documents submitted to the clerk under this article to
24-15 the applicant and the attorney representing the state.
24-16 Sec. 7. ANSWER TO APPLICATION. (a) The state may file an
24-17 answer to the application for a writ of habeas corpus not later
24-18 than the 30th day after the date the state receives notice of
24-19 issuance of the writ. The state shall serve the answer, if any, on
24-20 counsel for the applicant or, if the applicant is proceeding pro
24-21 se, on the applicant. The state may request from the convicting
24-22 court an extension of time in which to answer the application by
24-23 showing particularized justifying circumstances for the extension.
24-24 (b) Matters alleged in the application not admitted by the
24-25 state are deemed denied.
24-26 Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING. (a)
24-27 Not later than the 20th day after the last date the state may
25-1 answer the application, the convicting court shall determine
25-2 whether controverted, previously unresolved factual issues material
25-3 to the legality of the applicant's confinement exist and shall
25-4 issue a written order of the determination.
25-5 (b) If the convicting court determines the issues do not
25-6 exist, the parties may file proposed findings of fact and
25-7 conclusions of law for the court to consider on or before a date
25-8 set by the court that is not later than the 30th day after the date
25-9 the order is issued.
25-10 (c) After argument of counsel, if requested by the court,
25-11 the convicting court shall make appropriate written findings of
25-12 fact and conclusions of law not later than the 15th day after the
25-13 date the parties filed proposed findings or not later than the 45th
25-14 day after the date the court's determination is made under
25-15 Subsection (a), whichever occurs first.
25-16 (d) The clerk of the court shall immediately send to:
25-17 (1) the court of criminal appeals a copy of the:
25-18 (A) application;
25-19 (B) answer;
25-20 (C) orders entered by the convicting court;
25-21 (D) proposed findings of fact and conclusions of
25-22 law; and
25-23 (E) findings of fact and conclusions of law
25-24 entered by the court; and
25-25 (2) counsel for the applicant or, if the applicant is
25-26 proceeding pro se, to the applicant, a copy of:
25-27 (A) orders entered by the convicting court;
26-1 (B) proposed findings of fact and conclusions of
26-2 law; and
26-3 (C) findings of fact and conclusions of law
26-4 entered by the court.
26-5 (e) Failure of the convicting court to issue findings of
26-6 fact and conclusions of law within the time provided by Subsection
26-7 (c) constitutes a finding that controverted, previously unresolved
26-8 factual issues material to the legality of the applicant's
26-9 confinement do not exist.
26-10 Sec. 9. HEARING. (a) If the convicting court determines
26-11 that controverted, previously unresolved factual issues material to
26-12 the legality of the applicant's confinement exist, the court shall
26-13 enter an order, not later than the 20th day after the last date the
26-14 state may answer the application, designating the issues of fact to
26-15 be resolved and the manner in which the issues shall be resolved.
26-16 To resolve the issues, the court may require affidavits,
26-17 depositions, interrogatories, and evidentiary hearings and may use
26-18 personal recollection.
26-19 (b) The convicting court shall allow the applicant and the
26-20 state not less than 10 days to prepare for an evidentiary hearing.
26-21 The parties may waive the preparation time. If the state or the
26-22 applicant requests that an evidentiary hearing be held within 30
26-23 days after the date the court ordered the hearing, the hearing
26-24 shall be held within that period unless the court states, on the
26-25 record, good cause for delay.
26-26 (c) The presiding judge of the convicting court shall
26-27 conduct a hearing held under this section unless another judge
27-1 presided over the original capital felony trial, in which event
27-2 that judge, if qualified for assignment under Section 74.054 or
27-3 74.055, Government Code, may preside over the hearing.
27-4 (d) The court reporter shall prepare a transcript of the
27-5 hearing not later than the 30th day after the date the hearing ends
27-6 and file the transcript with the clerk of the convicting court.
27-7 (e) The parties may file proposed findings of fact and
27-8 conclusions of law for the convicting court to consider on or
27-9 before a date set by the court that is not later than the 30th day
27-10 after the date the transcript is filed. If the court requests
27-11 argument of counsel, after argument the court shall make written
27-12 findings of fact that are necessary to resolve the previously
27-13 unresolved facts and make conclusions of law not later than the
27-14 15th day after the date the parties file proposed findings or not
27-15 later than the 45th day after the date the court reporter files the
27-16 transcript, whichever occurs first.
27-17 (f) The clerk of the convicting court shall immediately
27-18 transmit to:
27-19 (1) the court of criminal appeals a copy of:
27-20 (A) the application;
27-21 (B) the answers and motions filed;
27-22 (C) the court reporter's transcript;
27-23 (D) the documentary exhibits introduced into
27-24 evidence;
27-25 (E) the proposed findings of fact and
27-26 conclusions of law;
27-27 (F) the findings of fact and conclusions of law
28-1 entered by the court;
28-2 (G) the sealed materials such as a confidential
28-3 request for investigative expenses; and
28-4 (H) any other matters used by the convicting
28-5 court in resolving issues of fact; and
28-6 (2) counsel for the applicant or, if the applicant is
28-7 proceeding pro se, to the applicant, a copy of:
28-8 (A) orders entered by the convicting court;
28-9 (B) proposed findings of fact and conclusions of
28-10 law; and
28-11 (C) findings of fact and conclusions of law
28-12 entered by the court.
28-13 (g) The clerk of the convicting court shall forward an
28-14 exhibit that is not documentary to the court of criminal appeals on
28-15 request of the court.
28-16 Sec. 10. RULES OF EVIDENCE. The Texas Rules of Criminal
28-17 Evidence apply to a hearing held under this article.
28-18 Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
28-19 criminal appeals shall expeditiously review all applications for a
28-20 writ of habeas corpus submitted under this article. The court may
28-21 set the cause for oral argument and may request further briefing of
28-22 the issues by the applicant or the state. After reviewing the
28-23 record, the court shall enter its judgment remanding the applicant
28-24 to custody or ordering the applicant's release, as the law and
28-25 facts may justify.
28-26 Art. 11.16 [11.08]. APPLICANT CHARGED WITH FELONY. If a
28-27 person is confined after indictment on a charge of felony, he may
29-1 apply to the judge of the court in which he is indicted; or if
29-2 there be no judge within the district, then to the judge of any
29-3 district whose residence is nearest to the court house of the
29-4 county in which the applicant is held in custody.
29-5 Art. 11.17 [11.09]. APPLICANT CHARGED WITH MISDEMEANOR. If
29-6 a person is confined on a charge of misdemeanor, he may apply to
29-7 the county judge of the county in which the misdemeanor is charged
29-8 to have been committed, or if there be no county judge in said
29-9 county, then to the county judge whose residence is nearest to the
29-10 courthouse of the county in which the applicant is held in custody.
29-11 Art. 11.18 [11.10]. PROCEEDINGS UNDER THE WRIT. When motion
29-12 has been made to a judge under the circumstances set forth in the
29-13 two preceding Articles, he shall appoint a time when he will
29-14 examine the cause of the applicant, and issue the writ returnable
29-15 at that time, in the county where the offense is charged in the
29-16 indictment or information to have been committed. He shall also
29-17 specify some place in the county where he will hear the motion.
29-18 Art. 11.19 [11.11]. EARLY HEARING. The time so appointed
29-19 shall be the earliest day which the judge can devote to hearing the
29-20 cause of the applicant.
29-21 [Art. 11.12. WHO MAY PRESENT PETITION. Either the party for
29-22 whose relief the writ is intended, or any person for him, may
29-23 present a petition to the proper authority for the purpose of
29-24 obtaining relief.]
29-25 [Art. 11.13. APPLICANT. The word applicant, as used in this
29-26 Chapter, refers to the person for whose relief the writ is asked,
29-27 though the petition may be signed and presented by any other
30-1 person.]
30-2 [Art. 11.14. REQUISITES OF PETITION. The petition must
30-3 state substantially:]
30-4 [1. That the person for whose benefit the application
30-5 is made is illegally restrained in his liberty, and by whom, naming
30-6 both parties, if their names are known, or if unknown, designating
30-7 and describing them;]
30-8 [2. When the party is confined or restrained by virtue
30-9 of any writ, order or process, or under color of either, a copy
30-10 shall be annexed to the petition, or it shall be stated that a copy
30-11 cannot be obtained;]
30-12 [3. When the confinement or restraint is not by virtue
30-13 of any writ, order or process, the petition may state only that the
30-14 party is illegally confined or restrained in his liberty;]
30-15 [4. There must be a prayer in the petition for the
30-16 writ of habeas corpus; and]
30-17 [5. Oath must be made that the allegations of the
30-18 petition are true, according to the belief of the petitioner.]
30-19 Art. 11.20 [11.15]. WRIT ISSUED [GRANTED] WITHOUT DELAY.
30-20 The writ of habeas corpus shall be issued [granted] without delay
30-21 by the judge or court receiving the application [petition], unless
30-22 it be manifest from the application [petition] itself, or some
30-23 documents annexed to it, that the party is entitled to no relief
30-24 whatever.
30-25 Art. 11.21 [11.16]. WRIT MAY ISSUE WITHOUT MOTION. A judge
30-26 of the district or county court who has knowledge that any person
30-27 is illegally confined or restrained in his liberty within his
31-1 district or county may, if the case be one within his jurisdiction,
31-2 issue the writ of habeas corpus, without any application [motion]
31-3 being made for the same.
31-4 Art. 11.22. WHO MAY SERVE WRIT. The service of the writ may
31-5 be made by any person competent to testify.
31-6 Art. 11.23. HOW WRIT MAY BE SERVED. The writ may be served
31-7 by delivering a copy of the original to the person who is charged
31-8 with having the party under restraint or in custody and exhibiting
31-9 the original, if demanded; if he refuses to receive it, he shall
31-10 be informed verbally of the purport of the writ. If he refuses
31-11 admittance to the person wishing to make the service, or conceals
31-12 himself, a copy of the writ may be fixed upon some conspicuous part
31-13 of the house where such person resides or conceals himself or of
31-14 the place where the prisoner is confined.
31-15 Art. 11.24. RETURN MUST BE MADE. The person serving the
31-16 writ of habeas corpus shall, in all cases, state fully in his
31-17 return the manner and the time of the service of the writ. If made
31-18 by any person other than an officer, the return shall be under
31-19 oath.
31-20 Art. 11.25. MUST ANSWER. The person on whom the writ of
31-21 habeas corpus is served shall immediately obey the same and respond
31-22 as required by law upon the copy of the original writ served on him
31-23 or some paper connected with it, whether the writ be directed to
31-24 him or not.
31-25 Art. 11.26. REQUISITES OF ANSWER. The answer is made by
31-26 stating in plain language upon the copy of the writ or some paper
31-27 connected with it:
32-1 1. Whether it is true or not, according to the
32-2 statement of the application, that he has in his custody or under
32-3 his restraint the person named or described in such application;
32-4 2. By virtue of what authority, or for what cause, he
32-5 took and detains such person;
32-6 3. If he had such person in his custody or under
32-7 restraint at any time before the service of the writ and has
32-8 transferred him to the custody of another, he shall state
32-9 particularly to whom, at what time, for what reason, or by what
32-10 authority he made such transfer;
32-11 4. He shall attach to his answer the writ or warrant,
32-12 if any, under which he holds the person in custody; and
32-13 5. The answer must be signed and sworn to by the
32-14 person making it.
32-15 Art. 11.27. APPLICANT BROUGHT BEFORE JUDGE. Except in a
32-16 case in which the person in custody is confined pursuant to a
32-17 felony conviction, the person on whom the writ is served shall
32-18 bring before the judge the person in his custody or under his
32-19 restraint, unless it be made to appear that by reason of sickness
32-20 he cannot be removed; in which case, another day may be appointed
32-21 by the judge or court for hearing the cause and for the production
32-22 of the person confined; or the application may be heard and
32-23 decided without the production of the person detained, by the
32-24 consent of his counsel.
32-25 Art. 11.28. CUSTODY PENDING EXAMINATION. When the answer of
32-26 the writ has been made and the applicant brought before the court,
32-27 he is no longer detained on the original warrant or process but
33-1 under the authority of the habeas corpus. The safekeeping of the
33-2 prisoner, pending the examination or hearing, is entirely under the
33-3 direction and authority of the judge or court issuing the writ, or
33-4 to which the answer is made. He may be bailed from day to day as
33-5 allowed by law or be remanded to the same jail whence he came or to
33-6 any other place of safekeeping under the control of the judge or
33-7 court until the case is finally determined.
33-8 Art. 11.29. COURT SHALL ALLOW TIME. The court or judge
33-9 issuing the writ of habeas corpus shall allow reasonable time for
33-10 the production of the person detained in custody.
33-11 Art. 11.30. DISOBEYING WRIT. When service has been made
33-12 upon a person charged with the illegal custody of another, if he
33-13 refuses to obey the writ and answer as required by law or if he
33-14 refuses to receive the writ or conceals himself, the court or judge
33-15 issuing the writ shall issue a warrant directed to any officer or
33-16 other suitable person willing to execute the same, commanding him
33-17 to arrest the person charged with the illegal custody or detention
33-18 of another and bring him before such court or judge. When such
33-19 person has been arrested and brought before the court or judge, if
33-20 he still refuses to answer the writ or does not produce the person
33-21 in his custody, he shall be committed to jail and remain there
33-22 until he is willing to obey the writ of habeas corpus and until he
33-23 pays all the costs of the proceeding.
33-24 Art. 11.31. FURTHER PENALTY FOR DISOBEYING WRIT. Any person
33-25 disobeying the writ of habeas corpus shall also be liable to a
33-26 civil action at the suit of the party detained. It shall be deemed
33-27 that a person has disobeyed the writ who detains a prisoner a
34-1 longer time than three days after service thereof, unless where
34-2 further time is allowed in the writ for making the return thereto.
34-3 Art. 11.32 [11.17]. [JUDGE MAY ISSUE] WARRANT FOR PERSON
34-4 ILLEGALLY HELD [OF ARREST]. Whenever it appears by satisfactory
34-5 evidence to any judge authorized to issue such writ that any one is
34-6 held in illegal confinement or custody, and there is good reason to
34-7 believe that he will be carried out of the State, or suffer some
34-8 irreparable injury before he can obtain relief in the usual course
34-9 of law, or whenever the writ of habeas corpus has been issued and
34-10 disregarded, the said judge may issue a warrant to any peace
34-11 officer, or to any person specially named by said judge, directing
34-12 him to take and bring such person illegally held before such judge,
34-13 to be dealt with according to law.
34-14 Art. 11.33 [11.18]. WARRANT FOR PERSON HOLDING OR
34-15 RESTRAINING ANOTHER [MAY ARREST DETAINER]. Where it appears by the
34-16 proof offered, under circumstances mentioned in the preceding
34-17 Article, that the person charged with having illegal custody of the
34-18 prisoner is, by such act, guilty of an offense against the law, the
34-19 judge may, in the warrant, order that he be arrested and brought
34-20 before him; and upon examination, he may be committed, discharged,
34-21 or held to bail, as the law and the nature of the case may require.
34-22 Art. 11.34 [11.19]. PROCEEDINGS UNDER THE WARRANT. The
34-23 officer charged with the execution of the warrant shall bring the
34-24 persons therein mentioned before the judge or court issuing the
34-25 same, who shall inquire into the cause of the imprisonment or
34-26 restraint, and make an order thereon, as in cases of habeas corpus,
34-27 either remanding into custody, discharging or admitting to bail the
35-1 party so imprisoned or restrained.
35-2 Art. 11.35 [11.20]. OFFICER EXECUTING WARRANT. The same
35-3 power may be exercised by the officer executing the warrant in
35-4 cases arising under the foregoing Articles as is exercised in the
35-5 execution of warrants of arrest.
35-6 [Art. 11.21. CONSTRUCTIVE CUSTODY. The words "confined",
35-7 "imprisoned", "in custody", "confinement", "imprisonment", refer
35-8 not only to the actual, corporeal and forcible detention of a
35-9 person, but likewise to any coercive measures by threats, menaces
35-10 or the fear of injury, whereby one person exercises a control over
35-11 the person of another, and detains him within certain limits.]
35-12 [Art. 11.22. RESTRAINT. By "restraint" is meant the
35-13 kind of control which one person exercises over another, not to
35-14 confine him within certain limits, but to subject him to the
35-15 general authority and power of the person claiming such right.]
35-16 [Art. 11.23. SCOPE OF WRIT. The writ of habeas corpus is
35-17 intended to be applicable to all such cases of confinement and
35-18 restraint, where there is no lawful right in the person exercising
35-19 the power, or where, though the power in fact exists, it is
35-20 exercised in a manner or degree not sanctioned by law.]
35-21 Art. 11.36 [11.24]. ONE COMMITTED IN DEFAULT OF BAIL. Where
35-22 a person has been committed to custody for failing to enter into
35-23 bond, he is entitled to the writ of habeas corpus, if it is [be]
35-24 stated in the application [petition] that there was no sufficient
35-25 cause for requiring bail, or that the bail required is excessive.
35-26 If the proof sustains the application [petition], it will entitle
35-27 the party to be discharged, or have the bail reduced.
36-1 Art. 11.37 [11.25]. PERSON AFFLICTED WITH DISEASE. When a
36-2 judge or court authorized to issue [grant] writs of habeas corpus
36-3 shall be satisfied, upon investigation, that a person in legal
36-4 custody is afflicted with a disease which will render a removal
36-5 necessary for the preservation of life, an order may be made for
36-6 the removal of the prisoner to some other place where his health
36-7 will not be likely to suffer; or he may be admitted to bail as
36-8 allowed by law when it appears that any species of confinement will
36-9 endanger his life. This article does not apply to a person
36-10 confined pursuant to a final felony conviction if the penalty is
36-11 greater than 15 years.
36-12 [Art. 11.26. WHO MAY SERVE WRIT. The service of the writ
36-13 may be made by any person competent to testify.]
36-14 [Art. 11.27. HOW WRIT MAY BE SERVED AND RETURNED. The writ
36-15 may be served by delivering a copy of the original to the person
36-16 who is charged with having the party under restraint or in
36-17 custody, and exhibiting the original, if demanded; if he refuse to
36-18 receive it, he shall be informed verbally of the purport of the
36-19 writ. If he refuses admittance to the person wishing to make the
36-20 service, or conceals himself, a copy of the writ may be fixed upon
36-21 some conspicuous part of the house where such person resides or
36-22 conceals himself, or of the place where the prisoner is confined;
36-23 and the person serving the writ of habeas corpus shall, in all
36-24 cases, state fully, in his return, the manner and the time of the
36-25 service of the writ.]
36-26 [Art. 11.28. RETURN UNDER OATH. The return of a writ of
36-27 habeas corpus, under the provisions of the preceding Article, if
37-1 made by any person other than an officer, shall be under oath.]
37-2 [Art. 11.29. MUST MAKE RETURN. The person on whom the writ
37-3 of habeas corpus is served shall immediately obey the same, and
37-4 make the return required by law upon the copy of the original writ
37-5 served on him, and this, whether the writ be directed to him or
37-6 not.]
37-7 [Art. 11.30. HOW RETURN IS MADE. The return is made by
37-8 stating in plain language upon the copy of the writ or some paper
37-9 connected with it:]
37-10 [1. Whether it is true or not, according to the
37-11 statement of the petition, that he has in his custody, or under his
37-12 restraint, the person named or described in such petition;]
37-13 [2. By virtue of what authority, or for what cause, he
37-14 took and detains such person;]
37-15 [3. If he had such person in his custody or under
37-16 restraint at any time before the service of the writ, and has
37-17 transferred him to the custody of another, he shall state
37-18 particularly to whom, at what time, for what reason or by what
37-19 authority he made such transfer;]
37-20 [4. He shall annex to his return the writ or warrant,
37-21 if any, by virtue of which he holds the person in custody; and]
37-22 [5. The return must be signed and sworn to by the
37-23 person making it.]
37-24 [Art. 11.31. APPLICANT BROUGHT BEFORE JUDGE. The person on
37-25 whom the writ is served shall bring before the judge the person in
37-26 his custody, or under his restraint, unless it be made to appear
37-27 that by reason of sickness he cannot be removed; in which case,
38-1 another day may be appointed by the judge or court for hearing the
38-2 cause, and for the production of the person confined; or the
38-3 application may be heard and decided without the production of the
38-4 person detained, by the consent of his counsel.]
38-5 [Art. 11.32. CUSTODY PENDING EXAMINATION. When the return
38-6 of the writ has been made, and the applicant brought before the
38-7 court, he is no longer detained on the original warrant or process,
38-8 but under the authority of the habeas corpus. The safekeeping of
38-9 the prisoner, pending the examination or hearing, is entirely under
38-10 the direction and authority of the judge or court issuing the writ,
38-11 or to which the return is made. He may be bailed from day to day,
38-12 or be remanded to the same jail whence he came, or to any other
38-13 place of safekeeping under the control of the judge or court, till
38-14 the case is finally determined.]
38-15 [Art. 11.33. COURT SHALL ALLOW TIME. The court or judge
38-16 granting the writ of habeas corpus shall allow reasonable time for
38-17 the production of the person detained in custody.]
38-18 [Art. 11.34. DISOBEYING WRIT. When service has been made
38-19 upon a person charged with the illegal custody of another, if he
38-20 refuses to obey the writ and make the return required by law, or,
38-21 if he refuses to receive the writ, or conceals himself, the court
38-22 or judge issuing the writ shall issue a warrant directed to any
38-23 officer or other suitable person willing to execute the same,
38-24 commanding him to arrest the person charged with the illegal
38-25 custody or detention of another, and bring him before such court or
38-26 judge. When such person has been arrested and brought before the
38-27 court or judge, if he still refuses to return the writ, or does not
39-1 produce the person in his custody, he shall be committed to jail
39-2 and remain there until he is willing to obey the writ of habeas
39-3 corpus, and until he pays all the costs of the proceeding.]
39-4 [Art. 11.35. FURTHER PENALTY FOR DISOBEYING WRIT. Any
39-5 person disobeying the writ of habeas corpus shall also be liable to
39-6 a civil action at the suit of the party detained, and shall pay in
39-7 such suit fifty dollars for each day of illegal detention and
39-8 restraint, after service of the writ. It shall be deemed that a
39-9 person has disobeyed the writ who detains a prisoner a longer time
39-10 than three days after service thereof, unless where further time is
39-11 allowed in the writ for making the return thereto.]
39-12 [Art. 11.36. APPLICANT MAY BE BROUGHT BEFORE COURT. In case
39-13 of disobedience of the writ of habeas corpus, the person for whose
39-14 relief it is intended may also be brought before the court or judge
39-15 having competent authority, by an order for that purpose, issued to
39-16 any peace officer or other proper person specially named.]
39-17 Art. 11.38 [11.37]. DEATH, ETC., SUFFICIENT RETURN OF WRIT.
39-18 It is a sufficient answer [return] of the writ of habeas corpus
39-19 that the person, once detained, has died or escaped, or that by
39-20 some superior force he has been taken from the custody of the
39-21 person so answering. Under such circumstances [making the return;
39-22 but where any such cause shall be assigned], the court or judge
39-23 shall proceed to hear testimony; and the facts stated in the
39-24 answer [return] shall be proved by satisfactory evidence.
39-25 Art. 11.39 [11.38]. WHEN A PRISONER DIES. When a prisoner
39-26 confined in jail[,] or who is in legal custody dies[, shall die],
39-27 the officer having charge of him shall immediately [forthwith]
40-1 report the same to a justice of the peace of the county, who shall
40-2 hold an inquest to ascertain the cause of his death. All the
40-3 proceedings had in such cases shall be reduced to writing,
40-4 certified and returned as in other cases of inquest; a certified
40-5 copy of which shall be sufficient proof of the death of the
40-6 prisoner at the hearing on the application for writ of [a motion
40-7 under] habeas corpus.
40-8 [Art. 11.39. WHO SHALL REPRESENT THE STATE. If neither the
40-9 county nor the district attorney be present, the judge may appoint
40-10 some qualified practicing attorney to represent the State, who
40-11 shall be paid the same fee allowed district attorneys for like
40-12 services.]
40-13 Art. 11.40. PRISONER DISCHARGED. The judge or court before
40-14 whom a person is brought by writ of habeas corpus shall examine the
40-15 writ and the papers attached to it; and if no legal cause be shown
40-16 for the imprisonment or restraint, or if it appear that the
40-17 imprisonment or restraint, though at first legal, cannot for any
40-18 cause be lawfully prolonged, the applicant shall be discharged.
40-19 Art. 11.41. WHERE PARTY IS INDICTED FOR CAPITAL OFFENSE. If
40-20 it appears by the answer [return] and papers attached that the
40-21 party stands indicted for a capital offense, the judge or court
40-22 having jurisdiction of the case shall, nevertheless, proceed to
40-23 hear such testimony as may be offered on the part of the State and
40-24 the applicant, and may either remand or admit him to bail, as the
40-25 law and the facts may justify.
40-26 Art. 11.42. IF COURT HAS NO JURISDICTION. If it appear by
40-27 the answer [return] and papers attached that the judge or court
41-1 has no jurisdiction, such court or judge shall at once remand the
41-2 applicant to the person from whose custody he has been taken.
41-3 Art. 11.43. [PRESUMPTION OF INNOCENCE. No
41-4 presumption of guilt arises from the mere fact that a criminal
41-5 accusation has been made before a competent authority.]
41-6 [Art. 11.44.] ACTION OF COURT UPON EXAMINATION. The judge
41-7 or court, after having examined the answer [return] and all
41-8 documents attached, and heard the testimony offered on both sides,
41-9 shall, according to the facts and circumstances of the case,
41-10 proceed either to remand the party into custody, admit him to bail
41-11 or discharge him; provided, that no defendant shall be discharged
41-12 after indictment without bail.
41-13 Art. 11.44 [11.45]. VOID OR INFORMAL WARRANT. If it appears
41-14 that the applicant is detained or held under a warrant of
41-15 commitment which is informal, or void but [; yet, if] from the
41-16 document on which the warrant was based, or from the proof on the
41-17 hearing of the habeas corpus, it appears that there is probable
41-18 cause to believe that an offense has been committed by the
41-19 prisoner, he shall not be discharged, but shall be committed or
41-20 held to bail.
41-21 Art. 11.45 [11.46]. IF PROOF SHOWS OFFENSE. Where, upon an
41-22 examination under habeas corpus, it appears to the court or judge
41-23 that there is probable cause to believe that an offense has been
41-24 committed by the prisoner, he shall not be discharged, but shall be
41-25 committed or admitted to bail.
41-26 Art. 11.46 [11.47]. MAY SUMMON MAGISTRATE. To ascertain the
41-27 grounds on which an informal or void warrant has been issued, the
42-1 judge or court may cause to be summoned the magistrate who issued
42-2 the warrant, and may, by an order, require him to bring with him
42-3 all the papers and proceedings concerning [touching] the matter.
42-4 The attendance of such magistrate and the production of such
42-5 papers may be enforced by warrant of arrest.
42-6 Art. 11.47. RESPONSE BY APPLICANT. An applicant is not
42-7 required to respond in writing to matters asserted in the answer
42-8 but may respond to those matters in writing. The failure or
42-9 refusal of an applicant to respond in writing to matters asserted
42-10 in the answer constitutes a denial of all matters asserted in the
42-11 answer, and proof shall be heard accordingly both for and against
42-12 the applicant's request for relief.
42-13 Art. 11.48. [WRITTEN ISSUE NOT NECESSARY. It shall not be
42-14 necessary, on the trial of any cause arising under habeas corpus,
42-15 to make up a written issue, though it may be done by the applicant
42-16 for the writ. He may except to the sufficiency of, or controvert
42-17 the return or any part thereof, or allege any new matter in
42-18 avoidance. If written denial on his part be not made, it shall be
42-19 considered, for the purpose of investigation, that the statements
42-20 of said return are contested by a denial of the same; and the proof
42-21 shall be heard accordingly, both for and against the applicant for
42-22 relief.]
42-23 [Art. 11.49.] ORDER OF ARGUMENT. The applicant shall have
42-24 the right [by himself or counsel] to open and conclude the
42-25 argument upon the trial under habeas corpus.
42-26 Art. 11.49 [11.50]. COSTS. The judge trying the cause under
42-27 habeas corpus may make such order as is deemed appropriate [right]
43-1 concerning the cost of bringing the defendant before him, and all
43-2 other costs of the proceeding, awarding the same either against the
43-3 person to whom the writ was directed, the person seeking relief, or
43-4 may award no costs at all.
43-5 Art. 11.50 [11.51]. RECORD OF PROCEEDINGS
43-6 Sec. 1. If an applicant is held under accusation for an
43-7 offense and the [If a] writ of habeas corpus is [be made]
43-8 returnable before a court in session, all [the] proceedings [had]
43-9 shall be entered of record by the clerk of the court [thereof], as
43-10 in any other case in such court. When the application [motion] is
43-11 heard out of the county where the offense was committed, or in the
43-12 Court of Criminal Appeals, the clerk shall transmit a certified
43-13 copy of all the proceedings upon the application [motion] to the
43-14 clerk of the court which has jurisdiction of the offense.
43-15 Sec. 2. If an applicant is held under accusation for an
43-16 offense and the answer [Art. 11.52. PROCEEDINGS HAD IN VACATION.
43-17 If the return] is made and the proceedings had before a judge of a
43-18 court in vacation, he shall cause all of the proceedings to be
43-19 written, shall certify to the same, and cause them to be filed with
43-20 the clerk of the court which has jurisdiction of the offense, who
43-21 shall keep them safely.
43-22 Sec. 3. In [Art. 11.53. CONSTRUING THE TWO PRECEDING
43-23 ARTICLES. The two preceding Articles refer only to cases where an
43-24 applicant is held under accusation for some offense; in] all
43-25 other cases the proceedings had before the judge shall be filed and
43-26 kept by the clerk of the court hearing the case.
43-27 Art. 11.51 [11.54]. COURT MAY GRANT NECESSARY ORDERS. The
44-1 court or judge issuing [granting] a writ of habeas corpus may grant
44-2 all necessary orders to bring before him the testimony taken before
44-3 the examining court, and may issue process to enforce the
44-4 attendance of witnesses.
44-5 [Art. 11.55. MEANING OF "RETURN". The word "return", as
44-6 used in this Chapter, means the report made by the officer or
44-7 person charged with serving the writ of habeas corpus, and also the
44-8 answer made by the person served with such writ.]
44-9 Art. 11.52 [11.56]. EFFECT OF DISCHARGE OR BAIL BEFORE
44-10 INDICTMENT. Before [Where a person, before] indictment, if a
44-11 person [found against him,] has been discharged or held to bail on
44-12 habeas corpus by order of a court or judge of competent
44-13 jurisdiction, he shall not be again imprisoned or detained in
44-14 custody on an accusation for the same offense, until after he has
44-15 [shall have] been indicted, unless his bail is surrendered [by his
44-16 bail].
44-17 Art. 11.53 [11.57]. WRIT AFTER INDICTMENT. Where a person
44-18 once discharged or admitted to bail is afterward indicted for the
44-19 same offense for which he has been once arrested, he may be
44-20 committed on the indictment, but shall be again entitled to the
44-21 writ of habeas corpus, and may be admitted to bail, if the facts of
44-22 the case render it proper. After[; but in cases where, after]
44-23 indictment [is found], if the cause of the defendant has been
44-24 investigated on habeas corpus, and an order made, either remanding
44-25 him to custody, or admitting him to bail, he shall not [either] be
44-26 subject to be again placed in custody, unless his bond is [when]
44-27 surrendered by his bail, nor shall he be [again] entitled to a
45-1 second [the] writ of habeas corpus, except in the special cases
45-2 mentioned in this Chapter.
45-3 Art. 11.54 [11.58]. PERSON COMMITTED FOR A CAPITAL OFFENSE.
45-4 If the accusation against the defendant for a capital offense has
45-5 been heard on habeas corpus before an indictment is returned
45-6 [found], and he has [shall have] been committed after such
45-7 examination, he shall not be entitled to the writ, unless in the
45-8 special cases mentioned in Articles 11.37 [11.25] and 11.55
45-9 [11.59].
45-10 Art. 11.55 [11.59]. OBTAINING WRIT A SECOND TIME. A party
45-11 may obtain the writ of habeas corpus a second time by stating in an
45-12 application [a motion] therefor that since the hearing of his first
45-13 application [motion] important evidence [testimony] has been
45-14 obtained which it was not in his power to produce at the former
45-15 hearing. He shall also set forth the [testimony so] newly
45-16 discovered evidence. If the evidence is in the form of testimony
45-17 from[; and if it be that of] a witness, the affidavit of the
45-18 witness shall also accompany such application [motion].
45-19 Art. 11.56 [11.60]. REFUSING TO EXECUTE WRIT. Any officer
45-20 to whom a writ of habeas corpus, or other writ, warrant or process
45-21 authorized by this Chapter shall be directed, delivered or
45-22 tendered, who refuses to execute the same according to his
45-23 directions, or who wantonly delays the service or execution of the
45-24 same, shall be liable to fine as for contempt of court.
45-25 [Art. 11.61. REFUSAL TO OBEY WRIT. Any one having another
45-26 in his custody, or under his power, control or restraint who
45-27 refuses to obey a writ of habeas corpus, or who evades the service
46-1 of the same, or places the person illegally detained under the
46-2 control of another, removes him, or in any other manner attempts to
46-3 evade the operation of the writ, shall be dealt with as provided in
46-4 Article 11.34 of this Code.]
46-5 [Art. 11.62. REFUSAL TO GIVE COPY OF PROCESS. Any jailer,
46-6 sheriff or other officer who has a prisoner in his custody and
46-7 refuses, upon demand, to furnish a copy of the process under which
46-8 he holds the person, is guilty of an offense, and shall be dealt
46-9 with as provided in Article 11.34 of this Code for refusal to
46-10 return the writ therein required.]
46-11 Art. 11.57 [11.63]. HELD UNDER FEDERAL AUTHORITY. No person
46-12 shall be discharged under the writ of habeas corpus who is in
46-13 custody by virtue of a commitment for any offense exclusively
46-14 cognizable by the courts of the United States, or by order or
46-15 process issuing out of such courts in cases where they have
46-16 jurisdiction, or who is held by virtue of any legal engagement or
46-17 enlistment in the army, or who, being rightfully subject to the
46-18 rules and articles of war, is confined by any one legally acting
46-19 under the authority thereof, or who is held as a prisoner of war
46-20 under the authority of the United States.
46-21 [Art. 11.64. APPLICATION OF CHAPTER. This Chapter applies
46-22 to all cases of habeas corpus for the enlargement of persons
46-23 illegally held in custody or in any manner restrained in their
46-24 personal liberty, for the admission of prisoners to bail, and for
46-25 the discharge of prisoners before indictment upon a hearing of the
46-26 testimony. Instead of a writ of habeas corpus in other cases
46-27 heretofore used, a simple order shall be substituted.]
47-1 SECTION 16. Article 13.15, Code of Criminal Procedure, is
47-2 amended to read as follows:
47-3 Art. 13.15. SEXUAL ASSAULT. Sexual assault may be
47-4 prosecuted in the county in which it is committed, in the county in
47-5 which the victim is abducted, or in any county through or into
47-6 which the victim is transported in the course of the abduction and
47-7 sexual assault. [When it shall come to the knowledge of any
47-8 district judge whose court has jurisdiction under this Article that
47-9 sexual assault has probably been committed, he shall immediately,
47-10 if his court be in session, and if not in session, then, at the
47-11 first term thereafter in any county of the district, call the
47-12 attention of the grand jury thereto; and if the court be in
47-13 session, but the grand jury has been discharged, he shall
47-14 immediately recall the grand jury to investigate the accusation.
47-15 The district courts are authorized and directed to change the venue
47-16 in such cases whenever it shall be necessary to secure a speedy
47-17 trial.]
47-18 SECTION 17. Article 14.031, Code of Criminal Procedure, is
47-19 amended to read as follows:
47-20 Art. 14.031. PUBLIC INTOXICATION. (a) In lieu of arresting
47-21 an individual who commits an offense under Section 49.02, Penal
47-22 Code, a peace officer may release an individual if:
47-23 (1) the officer believes detention in a penal facility
47-24 is unnecessary for the protection of the individual or others; and
47-25 (2) the individual:
47-26 (A) is released to the care of an adult who
47-27 agrees to assume responsibility for the individual; or
48-1 (B) verbally consents to voluntary treatment for
48-2 chemical dependency in a program in a treatment facility licensed
48-3 and approved by the Texas Commission on Alcohol and Drug Abuse, and
48-4 the program admits the individual for treatment.
48-5 (b) [A magistrate may release from custody an individual
48-6 arrested under Section 49.02, Penal Code, if the magistrate
48-7 determines the individual meets the conditions required for release
48-8 in lieu of arrest under Subsection (a) of this article.]
48-9 [(c)] The release of an individual under [Subsection (a) or
48-10 (b) of] this article to an alcohol or drug treatment program may
48-11 not be considered by a peace officer or magistrate in determining
48-12 whether the individual should be released to such a program for a
48-13 subsequent incident or arrest under Section 49.02, Penal Code.
48-14 (c) [(d)] A peace officer and the agency or political
48-15 subdivision that employs the peace officer may not be held liable
48-16 for damage to persons or property that results from the actions of
48-17 an individual released under [Subsection (a) or (b) of] this
48-18 article.
48-19 SECTION 18. Part I, Code of Criminal Procedure, is amended
48-20 by adding Chapter 14A to read as follows:
48-21 CHAPTER 14A. PRESENTATION OF ARRESTED PERSON BEFORE
48-22 MAGISTRATE
48-23 Art. 14A.01. ARRESTED PERSON TO BE PRESENTED BEFORE
48-24 MAGISTRATE. A person making an arrest shall without unnecessary
48-25 delay take the person arrested or have him taken before some
48-26 magistrate of the county where the accused was arrested or, if
48-27 necessary to provide more expeditiously to the person arrested the
49-1 warnings described by this article, before a magistrate in a county
49-2 bordering the county in which the arrest was made.
49-3 Art. 14A.02. CONDUCTING APPEARANCE BY CLOSED CIRCUIT
49-4 TELEVISION. (a) An arrested person may be taken before the
49-5 magistrate in person or the image of the arrested person may be
49-6 broadcast by closed circuit television to the magistrate.
49-7 (b) A closed circuit television system may not be used under
49-8 this article unless the system provides for a two-way communication
49-9 of image and sound between the arrested person and the magistrate.
49-10 (c) A recording of the communication between the arrested
49-11 person and the magistrate shall be made. The recording shall be
49-12 preserved until the earlier of the following dates: (1) the date
49-13 on which the pretrial hearing ends; or (2) the 91st day after the
49-14 date on which the recording is made if the person is charged with a
49-15 misdemeanor or the 120th day after the date on which the recording
49-16 is made if the person is charged with a felony. The counsel for
49-17 the defendant may obtain a copy of the recording on payment of a
49-18 reasonable amount to cover costs of reproduction.
49-19 Art. 14A.03. DUTIES OF MAGISTRATES. (a) A magistrate to
49-20 whom an arrested person is presented shall perform the tasks
49-21 assigned under this article.
49-22 (b) The magistrate shall inform in clear language the person
49-23 arrested, either in person or by closed circuit television, of the
49-24 accusation against him and of any affidavit filed therewith.
49-25 (c) The magistrate shall inform the person of his right to
49-26 retain counsel and of his right to request the appointment of
49-27 counsel if he is indigent and cannot afford counsel.
50-1 (d) The magistrate shall inform the person of his right to
50-2 remain silent, that he is not required to make a statement, and
50-3 that any statement made by him may be used against him, of his
50-4 right to have an attorney present during any interview with peace
50-5 officers or attorneys representing the state, of his right to
50-6 terminate such an interview at any time, and of his right to
50-7 request the appointment of counsel for the purposes of representing
50-8 him during the interview if he is indigent and cannot afford
50-9 counsel.
50-10 (e) The magistrate shall inform the person of his right to
50-11 have an examining trial.
50-12 (f) The magistrate shall allow the person arrested
50-13 reasonable time and opportunity to consult counsel.
50-14 (g) The magistrate shall admit the person arrested to bail
50-15 if allowed by law.
50-16 (h) When a deaf accused is taken before a magistrate after
50-17 arrest, an interpreter appointed by the magistrate qualified and
50-18 sworn as provided in Article 38.31 of this code shall interpret the
50-19 warnings required by this article or Article 14.06 of this code in
50-20 a language that the accused can understand, including but not
50-21 limited to sign language.
50-22 Art. 14A.04. PERSON ARRESTED BY OFFICER FROM OTHER
50-23 JURISDICTION. If a magistrate determines that a person brought
50-24 before the magistrate after an arrest authorized by Article 14.051
50-25 of this code was arrested unlawfully, the magistrate shall release
50-26 the person from custody. If the magistrate determines that the
50-27 arrest was lawful, the person arrested is considered a fugitive
51-1 from justice for the purposes of Article 51.13 of this code, and
51-2 the disposition of the person is controlled by that article.
51-3 Art. 14A.05. RELEASE OF PERSON ARRESTED FOR PUBLIC
51-4 INTOXICATION. (a) A magistrate may release from custody an
51-5 individual arrested under Section 49.02, Penal Code, if:
51-6 (1) the magistrate believes detention in a penal
51-7 facility is unnecessary for the protection of the individual or
51-8 others; and
51-9 (2) the individual:
51-10 (A) is released to the care of an adult who
51-11 agrees to assume responsibility for the individual; or
51-12 (B) verbally consents to voluntary treatment for
51-13 chemical dependency in a program in a treatment facility licensed
51-14 and approved by the Texas Commission on Alcohol and Drug Abuse, and
51-15 the program admits the individual for treatment.
51-16 (b) The release of an individual under this article to an
51-17 alcohol or drug treatment program may not be considered by a peace
51-18 officer or magistrate in determining whether the individual should
51-19 be released to such a program for a subsequent incident or arrest
51-20 under Section 49.02, Penal Code.
51-21 SECTION 19. Chapter 15, Code of Criminal Procedure, is
51-22 amended to read as follows:
51-23 CHAPTER 15. ARREST UNDER WARRANT
51-24 Art. 15.01. WARRANT OF ARREST. A "warrant of arrest" is a
51-25 written order from a magistrate commanding[, directed to] a peace
51-26 officer or some other person specially named[, commanding him] to
51-27 take [the body of] the person accused of an offense[,] to be dealt
52-1 with according to law.
52-2 Art. 15.02. REQUISITES OF WARRANT. It issues in the name of
52-3 "The State of Texas", and shall be sufficient, without regard to
52-4 form, if it have these substantial requisites:
52-5 1. It must specify the name of the person whose arrest
52-6 is ordered, if it be known, if unknown, then some reasonably
52-7 definite description must be given of the accused [him].
52-8 2. It must state that the person is accused of some
52-9 offense against the laws of the State, naming the offense.
52-10 3. It must be signed by the magistrate, and the
52-11 magistrate's [his] office be named in the body of the warrant, or
52-12 in connection with the magistrate's [his] signature.
52-13 Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS. (a) A
52-14 magistrate may issue a warrant of arrest or a summons:
52-15 1. In any case in which the magistrate [he] is by law
52-16 authorized to order verbally the arrest of an offender;
52-17 2. When any person shall make oath before the
52-18 magistrate that another has committed some offense against the laws
52-19 of the State; and
52-20 3. In any case named in this Code where the magistrate
52-21 [he] is specially authorized to issue warrants of arrest.
52-22 (b) A summons may be issued in any case where a warrant may
52-23 be issued, and shall be in the same form as the warrant except that
52-24 it shall summon the defendant to appear before a magistrate at a
52-25 stated time and place. The summons shall be served upon a
52-26 defendant by delivering a copy to the defendant [him] personally,
52-27 or by leaving it at the defendant's [his] dwelling house or usual
53-1 place of abode with some person of suitable age and discretion then
53-2 residing therein or by mailing it to the defendant's last known
53-3 address. If a defendant fails to appear in response to the summons
53-4 a warrant shall be issued.
53-5 Art. 15.04. AFFIDAVIT. An arrest warrant or summons may not
53-6 be issued unless sufficient facts are first presented to the
53-7 issuing magistrate that probable cause does in fact exist. In each
53-8 case in which an arrest warrant or summons is sought, a sworn
53-9 affidavit setting forth sufficient facts to establish probable
53-10 cause shall be filed. An executed affidavit is public information.
53-11 [COMPLAINT. The affidavit made before the magistrate or district
53-12 or county attorney is called a "complaint" if it charges the
53-13 commission of an offense.]
53-14 Art. 15.05. REQUISITES OF COMPLAINT. The complaint shall be
53-15 sufficient, without regard to form, if it have these substantial
53-16 requisites:
53-17 1. It must state the name of the accused, if known,
53-18 and if not known, must give some reasonably definite description of
53-19 him.
53-20 2. It must show that the accused has committed some
53-21 offense against the laws of the State, either directly or that the
53-22 affiant has good reason to believe, and does believe, that the
53-23 accused has committed such offense.
53-24 3. It must state the time and place of the commission
53-25 of the offense, as definitely as can be done by the affiant.
53-26 4. It must be signed by the affiant by writing his
53-27 name or affixing his mark.
54-1 [Art. 15.051. POLYGRAPH EXAMINATION OF COMPLAINANT
54-2 PROHIBITED. (a) A peace officer may not require a polygraph
54-3 examination of a person who charges or seeks to charge in a
54-4 complaint the commission of an offense under Section 21.11, 22.011,
54-5 22.021, or 25.02, Penal Code.]
54-6 [(b) If an attorney representing the state requests a
54-7 polygraph examination of a person who charges or seeks to charge in
54-8 a complaint the commission of an offense listed in Subsection (a),
54-9 the attorney must inform the complainant that the examination is
54-10 not required and that a complaint may not be dismissed solely:]
54-11 [(1) because a complainant did not take a polygraph
54-12 examination; or]
54-13 [(2) on the basis of the results of a polygraph
54-14 examination taken by the complainant.]
54-15 [(c) An attorney representing the state may not take a
54-16 polygraph examination of a person who charges or seeks to charge
54-17 the commission of an offense listed in Subsection (a) unless the
54-18 attorney provides the information in Subsection (b) to the person
54-19 and the person signs a statement indicating the person understands
54-20 the information.]
54-21 [(d) A complaint may not be dismissed solely:]
54-22 [(1) because a complainant did not take a polygraph
54-23 examination; or]
54-24 [(2) on the basis of the results of a polygraph
54-25 examination taken by the complainant.]
54-26 Art. 15.06. WARRANT EXTENDS TO EVERY PART OF THE STATE. A
54-27 warrant of arrest, issued by any county or district clerk, or by
55-1 any magistrate (except mayors of an incorporated city or town),
55-2 shall extend to any part of the State; and any peace officer to
55-3 whom said warrant is directed, or into whose hands the same has
55-4 been transferred, shall be authorized to execute the same in any
55-5 county in this State.
55-6 Art. 15.07. WARRANT ISSUED BY OTHER MAGISTRATE. When a
55-7 warrant of arrest is issued by any mayor of an incorporated city or
55-8 town, it cannot be executed in another county than the one in which
55-9 it issues, except:
55-10 1. It be endorsed by a judge of a court of record, in
55-11 which case it may be executed anywhere in the State; or
55-12 2. If it be endorsed by any magistrate in the county
55-13 in which the accused is found, it may be executed in such county.
55-14 The endorsement may be: "Let this warrant be executed in the
55-15 county of ..........". Or, if the endorsement is made by a judge
55-16 of a court of record, then the endorsement may be: "Let this
55-17 warrant be executed in any county of the State of Texas". Any
55-18 other words of the same meaning will be sufficient. The
55-19 endorsement shall be dated, and signed officially by the magistrate
55-20 making it.
55-21 Art. 15.08. WARRANT MAY BE FORWARDED [TELEGRAPHED]. A
55-22 warrant of arrest may be forwarded by any method that ensures the
55-23 transmission of a duplicate of the original warrant, including
55-24 transmission by facsimile or other electronic means [telegraph from
55-25 any telegraph office to another in this State]. If issued by any
55-26 magistrate named in Article 15.06, the peace officer receiving the
55-27 same shall execute it without delay. If it be issued by any other
56-1 magistrate than is named in Article 15.06, the peace officer
56-2 receiving the same shall proceed with it to the nearest magistrate
56-3 of the peace officer's [his] county, who shall endorse thereon, in
56-4 substance, these words:
56-5 "Let this warrant be executed in the county of ...........",
56-6 which endorsement shall be dated and signed officially by the
56-7 magistrate making the same.
56-8 Art. 15.09. COPY OF FORWARDED WARRANT. A copy of a warrant
56-9 that is forwarded as provided by Article 15.08 of this code must be
56-10 filed with the clerk serving the magistrate before whom the person
56-11 arrested under the forwarded warrant is presented. [COMPLAINT BY
56-12 TELEGRAPH. A complaint in accordance with Article 15.05, may be
56-13 telegraphed, as provided in the preceding Article, to any
56-14 magistrate in the State; and the magistrate who receives the same
56-15 shall forthwith issue a warrant for the arrest of the accused; and
56-16 the accused, when arrested, shall be dealt with as provided in this
56-17 Chapter in similar cases.]
56-18 [Art. 15.10. COPY TO BE DEPOSITED. A certified copy of the
56-19 original warrant or complaint, certified to by the magistrate
56-20 issuing or taking the same, shall be deposited with the manager of
56-21 the telegraph office from which the same is to be forwarded, taking
56-22 precedence over other business, to the place of its destination or
56-23 to the telegraph office nearest thereto, precisely as it is
56-24 written, including the certificate of the seal attached.]
56-25 [Art. 15.11. DUTY OF TELEGRAPH MANAGER. When a warrant or
56-26 complaint is received at a telegraph office for delivery, it shall
56-27 be delivered to the party to whom it is addressed as soon as
57-1 practicable, written on the proper blanks of the telegraph company
57-2 and certified to by the manager of the telegraph office as being a
57-3 true and correct copy of the warrant or complaint received at his
57-4 office.]
57-5 [Art. 15.12. WARRANT OR COMPLAINT MUST BE UNDER SEAL. No
57-6 manager of a telegraph office shall receive and forward a warrant
57-7 or complaint unless the same shall be certified to under the seal
57-8 of a court of record or by a justice of the peace, with the
57-9 certificate under seal of the district or county clerk of his
57-10 county that he is a legally qualified justice of the peace of such
57-11 county; nor shall it be lawful for any magistrate to endorse a
57-12 warrant received by telegraph, or issue a warrant upon a complaint
57-13 received by telegraph, unless all the requirements of the law in
57-14 relation thereto have been fully complied with.]
57-15 [Art. 15.13. TELEGRAM PREPAID. Whoever presents a warrant
57-16 or complaint to the manager of a telegraph office to be forwarded
57-17 by telegraph, shall pay for the same in advance, unless, by the
57-18 rules of the company, it may be sent collect.]
57-19 Art. 15.10 [15.16]. HOW WARRANT IS EXECUTED. The officer or
57-20 person executing a warrant of arrest shall without unnecessary
57-21 delay take the person or have him taken before the magistrate who
57-22 issued the warrant or before the magistrate named in the warrant,
57-23 if the magistrate is in the same county where the person is
57-24 arrested. If the issuing or named magistrate is in another county,
57-25 the person arrested shall without unnecessary delay be taken before
57-26 some magistrate in the county in which the arrest was made [he was
57-27 arrested].
58-1 [Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE.
58-2 (a) In each case enumerated in this Code, the person making the
58-3 arrest shall without unnecessary delay take the person arrested or
58-4 have him taken before some magistrate of the county where the
58-5 accused was arrested or, if necessary to provide more expeditiously
58-6 to the person arrested the warnings described by this article,
58-7 before a magistrate in a county bordering the county in which the
58-8 arrest was made. The arrested person may be taken before the
58-9 magistrate in person or the image of the arrested person may be
58-10 broadcast by closed circuit television to the magistrate. The
58-11 magistrate shall inform in clear language the person arrested,
58-12 either in person or by closed circuit television, of the accusation
58-13 against him and of any affidavit filed therewith, of his right to
58-14 retain counsel, of his right to remain silent, of his right to have
58-15 an attorney present during any interview with peace officers or
58-16 attorneys representing the state, of his right to terminate the
58-17 interview at any time, of his right to request the appointment of
58-18 counsel if he is indigent and cannot afford counsel, and of his
58-19 right to have an examining trial. He shall also inform the person
58-20 arrested that he is not required to make a statement and that any
58-21 statement made by him may be used against him. The magistrate
58-22 shall allow the person arrested reasonable time and opportunity to
58-23 consult counsel and shall admit the person arrested to bail if
58-24 allowed by law. A closed circuit television system may not be used
58-25 under this subsection unless the system provides for a two-way
58-26 communication of image and sound between the arrested person and
58-27 the magistrate. A recording of the communication between the
59-1 arrested person and the magistrate shall be made. The recording
59-2 shall be preserved until the earlier of the following dates:
59-3 (1) the date on which the pretrial hearing ends; or (2) the 91st
59-4 day after the date on which the recording is made if the person is
59-5 charged with a misdemeanor or the 120th day after the date on which
59-6 the recording is made if the person is charged with a felony. The
59-7 counsel for the defendant may obtain a copy of the recording on
59-8 payment of a reasonable amount to cover costs of reproduction.]
59-9 [(b) After an accused charged with a misdemeanor punishable
59-10 by fine only is taken before a magistrate under Subsection (a) of
59-11 this article and the magistrate has identified the accused with
59-12 certainty, the magistrate may release the accused without bond and
59-13 order the accused to appear at a later date for arraignment in the
59-14 county court or statutory county court. The order must state in
59-15 writing the time, date, and place of the arraignment, and the
59-16 magistrate must sign the order. The accused shall receive a copy
59-17 of the order on release. If an accused fails to appear as required
59-18 by the order, the judge of the court in which the accused is
59-19 required to appear shall issue a warrant for the arrest of the
59-20 accused. If the accused is arrested and brought before the judge,
59-21 the judge may admit the accused to bail, and in admitting the
59-22 accused to bail, the judge should set as the amount of bail an
59-23 amount double that generally set for the offense for which the
59-24 accused was arrested. This subsection does not apply to an accused
59-25 who has previously been convicted of a felony or a misdemeanor
59-26 other than a misdemeanor punishable by fine only.]
59-27 [(c) When a deaf accused is taken before a magistrate under
60-1 this article or Article 14.06 of this Code, an interpreter
60-2 appointed by the magistrate qualified and sworn as provided in
60-3 Article 38.31 of this Code shall interpret the warning required by
60-4 those articles in a language that the accused can understand,
60-5 including but not limited to sign language.]
60-6 [(d) If a magistrate determines that a person brought before
60-7 the magistrate after an arrest authorized by Article 14.051 of this
60-8 code was arrested unlawfully, the magistrate shall release the
60-9 person from custody. If the magistrate determines that the arrest
60-10 was lawful, the person arrested is considered a fugitive from
60-11 justice for the purposes of Article 51.13 of this code, and the
60-12 disposition of the person is controlled by that article.]
60-13 Art. 15.11 [15.18]. ARREST FOR OUT-OF-COUNTY OFFENSE. One
60-14 arrested under a warrant issued in a county other than the one in
60-15 which the person is arrested shall be taken before a magistrate of
60-16 the county where the arrest takes place who shall take bail, if
60-17 allowed by law, and immediately transmit the bond taken to the
60-18 court having jurisdiction of the offense.
60-19 Art. 15.12 [15.19]. NOTICE OF ARREST. (a) An [If the]
60-20 accused who fails or refuses to give bail, as provided in the
60-21 preceding Article[, he] shall be committed to the jail of the
60-22 county in which the arrest was made. The [where he was arrested;
60-23 and the] magistrate committing the accused [him] shall immediately
60-24 notify the sheriff of the county in which the offense is alleged to
60-25 have been committed of the arrest and commitment[, which notice may
60-26 be given by telegraph, by mail or] by [other] written notice. The
60-27 written notice may be given by telegraph, by mail, by facsimile,
61-1 by electronic means, or by other written notice.
61-2 (b) If a person is arrested and taken before a magistrate in
61-3 a county bordering the county in which the arrest is made under the
61-4 provisions of Article 14A.01 [15.17(a) of this code] and if the
61-5 person is remanded to custody, the person may be confined in a jail
61-6 in the county in which the magistrate serves for a period of not
61-7 more than 72 hours after the arrest before being transferred to the
61-8 county jail of the county in which the arrest occurred.
61-9 Art. 15.13 [15.20]. DUTY OF SHERIFF RECEIVING NOTICE. The
61-10 sheriff receiving the notice shall forthwith go or send for the
61-11 prisoner and have the prisoner [him] brought before the proper
61-12 court or magistrate.
61-13 Art. 15.14 [15.21]. PRISONER DISCHARGED IF NOT TIMELY
61-14 DEMANDED. If the proper office of the county where the offense is
61-15 alleged to have been committed does not demand the prisoner and
61-16 take charge of the prisoner [him] within ten days from the day the
61-17 prisoner [he] is committed, such prisoner shall be discharged from
61-18 custody.
61-19 Art. 15.15 [15.22]. WHEN A PERSON IS ARRESTED. A person is
61-20 arrested when [he has been] actually placed under restraint or
61-21 taken into custody by an officer or person executing a warrant of
61-22 arrest, or by an officer or person arresting without a warrant.
61-23 Art. 15.16 [15.23]. TIME OF ARREST. An arrest may be made
61-24 on any day or at any time of the day or night.
61-25 Art. 15.17 [15.24]. WHAT FORCE MAY BE USED. In making an
61-26 arrest, all reasonable means are permitted to be used to effect
61-27 it. No greater force, however, shall be resorted to than is
62-1 necessary to secure the arrest and detention of the accused.
62-2 Art. 15.18 [15.25]. MAY BREAK DOOR. In case of felony, the
62-3 officer may break down the door of any house for the purpose of
62-4 making an arrest, if the officer is [he be] refused admittance
62-5 after giving notice of the officer's [his] authority and purpose.
62-6 Art. 15.19 [15.26]. AUTHORITY TO ARREST MUST BE MADE KNOWN.
62-7 In executing a warrant of arrest, it shall always be made known to
62-8 the accused under what authority the arrest is made. The warrant
62-9 shall be executed by the arrest of the defendant. The officer need
62-10 not possess [have] the warrant [in his possession] at the time of
62-11 the arrest, provided the warrant was issued under the provisions of
62-12 this Code, but upon request the officer [he] shall show the warrant
62-13 to the defendant as soon as possible. If the officer does not
62-14 have the warrant in his possession at the time of arrest he shall
62-15 then inform the defendant of the offense charged and of the fact
62-16 that a warrant has been issued.
62-17 [Art. 15.27. NOTIFICATION TO SCHOOLS REQUIRED. (a) A law
62-18 enforcement agency that arrests or takes into custody as provided
62-19 by Chapter 52, Family Code, an individual who the agency knows or
62-20 believes is enrolled as a student in a public primary or secondary
62-21 school, for an offense listed in Subsection (h) of this article,
62-22 shall orally notify the superintendent or a person designated by
62-23 the superintendent in the school district in which the student is
62-24 enrolled or believed to be enrolled of that arrest or detention
62-25 within 24 hours after the arrest or detention, or on the next
62-26 school day. The superintendent shall promptly notify all
62-27 instructional and support personnel who have regular contact with
63-1 the student. All personnel shall keep the information received in
63-2 this subsection confidential. The State Board for Educator
63-3 Certification may revoke or suspend the certification of personnel
63-4 who intentionally violate this subsection. Within seven days after
63-5 the date the oral notice is given, the law enforcement agency shall
63-6 mail written notification, marked "PERSONAL and CONFIDENTIAL" on
63-7 the mailing envelope, to the superintendent or the person
63-8 designated by the superintendent. The written notification must
63-9 have the following printed on its face in large, bold letters:
63-10 "WARNING: The information contained in this notice is intended
63-11 only to inform appropriate school personnel of an arrest or
63-12 detention of a student believed to be enrolled in this school. An
63-13 arrest or detention should not be construed as proof that the
63-14 student is guilty. Guilt is determined in a court of law. THE
63-15 INFORMATION CONTAINED IN THIS NOTICE IS CONFIDENTIAL!"]
63-16 [(b) On conviction or on an adjudication of delinquent
63-17 conduct of an individual enrolled as a student in a public primary
63-18 or secondary school, for an offense or for any conduct listed in
63-19 Subsection (h) of this article, the office of the prosecuting
63-20 attorney acting in the case shall notify the superintendent or a
63-21 person designated by the superintendent in the school district in
63-22 which the student is enrolled of the conviction or adjudication.
63-23 Oral notification must be given within 24 hours of the time of the
63-24 determination of guilt, or on the next school day. Within seven
63-25 days after the date the oral notice is given, the office of the
63-26 prosecuting attorney shall mail written notice, which must contain
63-27 a statement of the offense of which the individual is convicted or
64-1 on which the adjudication is grounded.]
64-2 [(c) A parole or probation office having jurisdiction over a
64-3 student described by Subsection (a), (b), or (e) of this article
64-4 who transfers from a school or is subsequently removed from a
64-5 school and later returned to a school or school district other than
64-6 the one the student was enrolled in when the arrest, detention,
64-7 conviction, or adjudication occurred shall notify the new school
64-8 officials of the arrest or detention in a manner similar to that
64-9 provided for by Subsection (a) or (e)(1) of this article, or of the
64-10 conviction or delinquent adjudication in a manner similar to that
64-11 provided for by Subsection (b) or (e)(2) of this article.]
64-12 [(d) The superintendent or a person designated by the
64-13 superintendent in the school district may send to a school district
64-14 employee having direct supervisory responsibility over the student
64-15 the information contained in the confidential notice if the
64-16 superintendent or the person designated by the superintendent
64-17 determines that the school district employee needs the information
64-18 for educational purposes or for the protection of the person
64-19 informed or others.]
64-20 [(e)(1) A law enforcement agency that arrests or detains an
64-21 individual that the law enforcement agency knows or believes is
64-22 enrolled as a student in a private primary or secondary school
64-23 shall make the oral and written notifications described by
64-24 Subsection (a) of this article to the principal or a school
64-25 employee designated by the principal of the school in which the
64-26 student is enrolled.]
64-27 [(2) On conviction or an adjudication of delinquent
65-1 conduct of an individual enrolled as a student in a private primary
65-2 or secondary school, the office of prosecuting attorney shall make
65-3 the oral and written notifications described by Subsection (b) of
65-4 this article to the principal or a school employee designated by
65-5 the principal of the school in which the student is enrolled.]
65-6 [(3) The principal of a private school in which the
65-7 student is enrolled or a school employee designated by the
65-8 principal may send to a school employee having direct supervisory
65-9 responsibility over the student the information contained in the
65-10 confidential notice, for the same purposes as described by
65-11 Subsection (d) of this article.]
65-12 [(f) A person who receives information under this article
65-13 may not disclose the information except as specifically authorized
65-14 by this article. A person who intentionally violates this article
65-15 commits an offense. An offense under this subsection is a Class C
65-16 misdemeanor.]
65-17 [(g) On receipt of a notice under this article, a school
65-18 official may take the precautions necessary to prevent further
65-19 violence in the school, on school property, or at school-sponsored
65-20 or school-related activities on or off school property, but may not
65-21 penalize a student solely because a notification is received about
65-22 the student.]
65-23 [(h) This article applies to:]
65-24 [(1) an offense listed in Section 8(c), Article 42.18,
65-25 Code of Criminal Procedure; reckless conduct, as described by
65-26 Section 22.05, Penal Code; or a terroristic threat, as described by
65-27 Section 22.07, Penal Code;]
66-1 [(2) the unlawful use, sale, or possession of a
66-2 controlled substance, drug paraphernalia, or marihuana, as defined
66-3 by Chapter 481, Health and Safety Code;]
66-4 [(3) the unlawful possession of any of the weapons or
66-5 devices listed in Sections 46.01(1)-(14) or (16), Penal Code; or a
66-6 weapon listed as a prohibited weapon under Section 46.05, Penal
66-7 Code; or]
66-8 [(4) a criminal offense under Section 71.02, Penal
66-9 Code.]
66-10 SECTION 20. Chapter 19, Code of Criminal Procedure, is
66-11 amended to read as follows:
66-12 CHAPTER 19. ORGANIZATION OF THE GRAND JURY
66-13 Art. 19.01. APPOINTMENT OF JURY COMMISSIONERS; SELECTION
66-14 WITHOUT JURY COMMISSION. (a) The district judge may appoint not
66-15 less than three or more than five persons to perform the duties of
66-16 jury commissioners. The judge shall notify the commissioners of
66-17 their appointment, the term of court for which they will serve, and
66-18 when and where they are to appear. Commissioners must:
66-19 (1) be citizens;
66-20 (2) be qualified jurors in the county;
66-21 (3) be residents of different parts of the county;
66-22 (4) be able to read and write the English language;
66-23 (5) not be a party to any action in the court
66-24 organizing the grand jury; and
66-25 (6) not have been a jury commissioner in the 12-month
66-26 period immediately preceding the subsequent appointment.
66-27 (b) In lieu of the selection of prospective jurors by means
67-1 of a jury commission, the district judge may direct that a
67-2 sufficient number of prospective grand jurors be selected and
67-3 summoned in the same manner as for the selection and summons of
67-4 panels for the trial of civil cases in the district courts. The
67-5 judge shall try the qualifications for and excuses from service as
67-6 a grand juror and impanel the completed grand jury in the same
67-7 manner as provided for grand jurors selected by a jury commission.
67-8 Art. 19.02. OATH OF COMMISSIONERS. When the appointees
67-9 appear, the judge shall administer the following oath: "You do
67-10 swear faithfully to discharge the duties required of you as jury
67-11 commissioners; that you will not knowingly elect any person as
67-12 grand juror whom you believe to be unfit and not qualified; that
67-13 you will not make known to any one the name of any juryman selected
67-14 by you and reported to the court; that you will not, directly or
67-15 indirectly, converse with any one selected by you as a grand juror
67-16 concerning the merits of any case to be considered by the grand
67-17 jury.".
67-18 Art. 19.03. DUTIES OF JURY COMMISSIONERS. (a) After
67-19 receiving instructions from the court, the jury commissioners shall
67-20 select not less than 20 nor more than 25 persons from the residents
67-21 of the county to be summoned as grand jurors for the term of court
67-22 designated by the judge. The commissioners shall, to the extent
67-23 possible, select grand jurors who the commissioners determine
67-24 represent a broad cross-section of the population of the county,
67-25 considering the factors of race, sex, and age.
67-26 (b) The clerk shall make available to the jury commission
67-27 the names of those people who appear in the records of the clerk or
68-1 the county to be exempt or disqualified from serving on the grand
68-2 jury. The jury commission may summon the clerk at any time to
68-3 provide the information described by this subsection.
68-4 (c) During the jury commissioner's selection, no one may
68-5 converse with the commissioner concerning the commissioner's
68-6 selection.
68-7 Art. 19.04. NAMES RETURNED. The jury commissioners shall
68-8 prepare a list of the names of their selections and deliver the
68-9 list to the judge or the clerk of the court. Each commissioner
68-10 must sign the list. At the direction of the court the clerk shall
68-11 prepare summons for the persons selected by the commission,
68-12 summoning those persons to appear and be impaneled at the court at
68-13 a date and time determined by the court. The clerk shall deliver
68-14 the summons to the sheriff.
68-15 Art. 19.05. SUMMONS AND RETURN. (a) The sheriff shall
68-16 summon the persons named in the jury selection list or selected in
68-17 the manner of jurors for the trial of civil cases at least three
68-18 days, exclusive of the day of service, prior to the day on which
68-19 the grand jury is to be impaneled. The sheriff shall serve the
68-20 summons by:
68-21 (1) reading the summons in the hearing of the grand
68-22 juror;
68-23 (2) delivering a copy of the summons to the grand
68-24 juror; or
68-25 (3) mailing a copy of the summons by certified mail,
68-26 return receipt requested, to the last known address of the grand
68-27 juror, provided that the date set for impanelment of the grand jury
69-1 is at least seven days after the date on which the summons is
69-2 mailed.
69-3 (b) At any time on or before the day set for impanelment of
69-4 the grand jury, the officer executing the summons shall make a
69-5 return to the court indicating the date and manner of service on
69-6 each grand juror. If any of the grand jurors have not been
69-7 summoned, the officer shall also state in the certificate the
69-8 reason why they have not been summoned.
69-9 (c) If at any time it appears to the court that an
69-10 insufficient number of grand jurors have been summoned to appear on
69-11 the day set for impanelment of the grand jury, the court may delay
69-12 the impanelment, reconvene the jury commission, and order the
69-13 commission to select an additional number of grand jurors as
69-14 determined by the court.
69-15 (d) If on the day set for impanelment an insufficient number
69-16 of grand jurors appear, the court may order the sheriff to summon
69-17 the additional number of persons who are qualified to serve as
69-18 grand jurors as necessary to constitute a grand jury of 12 persons
69-19 and two alternates.
69-20 Art. 19.06. QUALIFICATIONS OF GRAND JURORS. A person may
69-21 not be selected or serve as a grand juror unless the person:
69-22 (1) is a resident of the state and of the county in
69-23 which the grand juror is to serve and is qualified under the
69-24 constitution and laws to vote in that county, except that the
69-25 person's failure to register to vote does not disqualify the person
69-26 from being selected or serving as a grand juror;
69-27 (2) is of sound mind and good moral character;
70-1 (3) is able to read and write the English language;
70-2 (4) has not been convicted of any felony;
70-3 (5) is not under indictment or other legal accusation
70-4 for theft or any felony;
70-5 (6) is not related within the third degree of
70-6 consanguinity or second degree of affinity, as determined under
70-7 Chapter 573, Government Code, to any person selected to serve or
70-8 serving on the same grand jury;
70-9 (7) has not served as grand juror or jury commissioner
70-10 in the year before the date on which the term of court for which he
70-11 has been selected as grand juror begins; and
70-12 (8) is not a complainant in any matter to be heard by
70-13 the grand jury during the term of court for which the person has
70-14 been selected as a grand juror.
70-15 Art. 19.07. METHOD OF TESTING QUALIFICATIONS. Each person
70-16 who appears to serve as a grand juror shall before being impaneled
70-17 be placed under oath and required to respond to questions from the
70-18 court inquiring as to the juror's qualifications under Article
70-19 19.06 of this code and as to any excuse from service under Article
70-20 19.08 of this code that are applicable to the person. The court
70-21 may investigate as necessary to determine the qualifications of the
70-22 person. A person summoned who is not qualified shall be excused.
70-23 When it appears to the court that the juror is qualified and not
70-24 excused from service, the court shall accept the juror as
70-25 qualified.
70-26 Art. 19.08. EXCUSES FROM SERVICE. The following persons may
70-27 be excused from jury service:
71-1 (1) a person older than 65 years;
71-2 (2) a person responsible for the care of a child
71-3 younger than 18 years;
71-4 (3) a student of a public or private secondary school;
71-5 (4) a person enrolled and in actual attendance at an
71-6 institution of higher education; and
71-7 (5) any other person that the court determines has a
71-8 reasonable excuse from service.
71-9 Art. 19.09. GRAND JURY IMPANELED. After at least 14 jurors
71-10 are qualified to serve, the court shall impanel a grand jury of 12
71-11 grand jurors and two alternates by administering to the grand
71-12 jurors and alternates the oath of grand jurors. No more than 12
71-13 grand jurors may attend a session of the grand jury at any one
71-14 time. The court shall inform the grand jury of its duties.
71-15 Art. 19.10. ANY PERSON MAY CHALLENGE. Before the grand jury
71-16 has been impaneled, any person may challenge the array of jurors or
71-17 any person presented as a grand juror. In no other way shall
71-18 objections to the qualifications and legality of the grand jury be
71-19 heard. Any person confined in jail in the county shall upon
71-20 request be brought into court to make such challenge.
71-21 Art. 19.11. CHALLENGE TO ARRAY. (a) In this chapter,
71-22 "array" means the whole body of persons summoned to serve as grand
71-23 jurors before they have been impaneled.
71-24 (b) A challenge to the array shall be made in writing for
71-25 these causes only:
71-26 (1) that those summoned as grand jurors are not in
71-27 fact those selected by the method provided by Article 19.01(b) or
72-1 by the jury commissioners; or
72-2 (2) in the case of grand jurors summoned by order of
72-3 the court, that the officer who summoned the grand jurors acted
72-4 corruptly in summoning one or more of the grand jurors.
72-5 Art. 19.12. CHALLENGE TO JUROR. A challenge to a particular
72-6 grand juror may be made orally for the following causes only:
72-7 (1) that the grand juror is not a qualified grand
72-8 juror; and
72-9 (2) that the grand juror is the prosecutor on an
72-10 accusation against the person making the challenge.
72-11 Art. 19.13. SUMMARILY DECIDED. When a challenge to the
72-12 array or to any individual has been made, the court shall hear
72-13 proof and decide in a summary manner whether the challenge is
72-14 well-founded.
72-15 Art. 19.14. OTHER JURORS SUMMONED. The court shall order
72-16 another grand jury to be summoned if the challenge to the array is
72-17 sustained or order the panel to be completed if by challenge to any
72-18 particular grand juror their number be reduced below 14.
72-19 Art. 19.15. OATH OF GRAND JURORS. When the grand jury is
72-20 completed, the court shall appoint one of the number foreman; and
72-21 the following oath shall be administered by the court, or under its
72-22 direction, to the jurors: "You solemnly swear that you will
72-23 diligently inquire into, and true presentment make, of all offenses
72-24 subject to indictment of which you may have knowledge, or of which
72-25 you are informed by the attorney for the state or other credible
72-26 person; that you will keep secret all proceedings and deliberations
72-27 of the grand jury; that you will not inquire into an offense
73-1 subject to indictment or seek to indict any person because of
73-2 envy, hatred or malice; nor will you fail to inquire into an
73-3 offense subject to indictment for love, fear, favor, or hope of
73-4 reward; but you shall truly and fairly discharge your duties, so
73-5 help you God.".
73-6 Art. 19.16. GRAND JURY BAILIFFS. The court and the district
73-7 attorney may each appoint one or more bailiffs to summon witnesses
73-8 to the grand jury and to assist the grand jury in its duties. At
73-9 the time of the appointment, the following oath shall be
73-10 administered to each bailiff by the court or under its direction:
73-11 "You solemnly swear that you will faithfully and impartially
73-12 perform all the duties of bailiff of the grand jury, and that you
73-13 will keep secret the proceedings of the grand jury, so help you
73-14 God.".
73-15 Art. 19.17. ANOTHER FOREMAN APPOINTED. If the foreman of
73-16 the grand jury for any reason is absent or unable or disqualified
73-17 to act, the court shall appoint in the foreman's place some other
73-18 member of the body to act as foreman.
73-19 Art. 19.18. ALTERNATE GRAND JUROR. If a grand juror for any
73-20 reason is absent or unable or disqualified to act, the foreman of
73-21 the grand jury may notify an alternate grand juror, who may then
73-22 serve in the place of the absent or disqualified grand juror.
73-23 Art. 19.19. QUORUM. Nine members shall be a quorum for the
73-24 purpose of discharging any duty or exercising any right of the
73-25 grand jury.
73-26 Art. 19.20. TERM OF GRAND JURY. (a) The term of the grand
73-27 jury shall be for the term of court designated by the court when
74-1 forming the grand jury.
74-2 (b) If prior to the expiration of the term for which the
74-3 grand jury was impaneled, the foreman or a majority of the grand
74-4 jurors in open court inform the judge of the court in which they
74-5 were impaneled that the investigation by the grand jury of the
74-6 matters before it cannot be concluded before the expiration of the
74-7 term, the judge may extend the term of the grand jury for the
74-8 purpose of concluding the investigation of matters before it for a
74-9 period not to exceed 90 days after the expiration of the term for
74-10 which it was impaneled, and all indictments returned by the grand
74-11 jury within the extended period shall be as valid as if returned
74-12 before the expiration of the term. The extension of the term of a
74-13 grand jury under this article does not affect the ability of a
74-14 court to summon another grand jury to begin a new term.
74-15 Art. 19.21. REASSEMBLY OF DISCHARGED GRAND JURY. A grand
74-16 jury discharged by the court for the term may be reassembled by the
74-17 court at any time during the term. If one or more of the grand
74-18 jurors fail to reassemble, the court may complete the panel by
74-19 impaneling replacement grand jurors in accordance with the rules
74-20 provided in this chapter for completing the grand jury in the first
74-21 instance.
74-22 [Art. 19.01. APPOINTMENT OF JURY COMMISSIONERS; SELECTION
74-23 WITHOUT JURY COMMISSION. (a) The district judge, at or during any
74-24 term of court, shall appoint not less than three, nor more than
74-25 five persons to perform the duties of jury commissioners, and shall
74-26 cause the sheriff to notify them of their appointment, and when and
74-27 where they are to appear. The district judge shall, in the order
75-1 appointing such commissioners, designate whether such commissioners
75-2 shall serve during the term at which selected or for the next
75-3 succeeding term. Such commissioners shall receive as compensation
75-4 for each day or part thereof they may serve the sum of Ten Dollars,
75-5 and they shall possess the following qualifications:]
75-6 [1. Be intelligent citizens of the county and able to
75-7 read and write the English language;]
75-8 [2. Be qualified jurors in the county;]
75-9 [3. Have no suit in said court which requires
75-10 intervention of a jury;]
75-11 [4. Be residents of different portions of the county;
75-12 and]
75-13 [5. The same person shall not act as jury commissioner
75-14 more than once in any 12-month period.]
75-15 [(b) In lieu of the selection of prospective jurors by means
75-16 of a jury commission, the district judge may direct that 20 to 75
75-17 prospective grand jurors be selected and summoned, with return on
75-18 summons, in the same manner as for the selection and summons of
75-19 panels for the trial of civil cases in the district courts. The
75-20 judge shall try the qualifications for and excuses from service as
75-21 a grand juror and impanel the completed grand jury in the same
75-22 manner as provided for grand jurors selected by a jury commission.]
75-23 [Art. 19.02. NOTIFIED OF APPOINTMENT. The judge shall cause
75-24 the proper officer to notify such appointees of such appointment,
75-25 and when and where they are to appear.]
75-26 [Art. 19.03. OATH OF COMMISSIONERS. When the appointees
75-27 appear before the judge, he shall administer to them the following
76-1 oath: "You do swear faithfully to discharge the duties required of
76-2 you as jury commissioners; that you will not knowingly elect any
76-3 man as juryman whom you believe to be unfit and not qualified; that
76-4 you will not make known to any one the name of any juryman selected
76-5 by you and reported to the court; that you will not, directly or
76-6 indirectly, converse with any one selected by you as a juryman
76-7 concerning the merits of any case to be tried at the next term of
76-8 this court, until after said cause may be tried or continued, or
76-9 the jury discharged".]
76-10 [Art. 19.04. INSTRUCTED. The jury commissioners, after they
76-11 have been organized and sworn, shall be instructed by the judge in
76-12 their duties and shall then retire in charge of the sheriff to a
76-13 suitable room to be secured by the sheriff for that purpose. The
76-14 clerk shall furnish them the necessary stationery, the names of
76-15 those appearing from the records of the court to be exempt or
76-16 disqualified from serving on the jury at each term, and the last
76-17 assessment roll of the county.]
76-18 [Art. 19.05. KEPT FREE FROM INTRUSION. The jury
76-19 commissioners shall be kept free from the intrusion of any person
76-20 during their session, and shall not separate without leave of the
76-21 court until they complete their duties.]
76-22 [Art. 19.06. SHALL SELECT GRAND JURORS. The jury
76-23 commissioners shall select not less than 15 nor more than 20
76-24 persons from the citizens of the county to be summoned as grand
76-25 jurors for the next term of court, or the term of court for which
76-26 said commissioners were selected to serve, as directed in the order
76-27 of the court selecting the commissioners. The commissioners shall,
77-1 to the extent possible, select grand jurors who the commissioners
77-2 determine represent a broad cross-section of the population of the
77-3 county, considering the factors of race, sex, and age.]
77-4 [Art. 19.07. EXTENSION BEYOND TERM OF PERIOD FOR WHICH
77-5 GRAND JURORS SHALL SIT. If prior to the expiration of the term for
77-6 which the grand jury was impaneled, it is made to appear by a
77-7 declaration of the foreman or of a majority of the grand jurors in
77-8 open court, that the investigation by the grand jury of the matters
77-9 before it cannot be concluded before the expiration of the term,
77-10 the judge of the district court in which said grand jury was
77-11 impaneled may, by the entry of an order on the minutes of said
77-12 court, extend, from time to time, for the purpose of concluding the
77-13 investigation of matters then before it, the period during which
77-14 said grand jury shall sit, for not to exceed a total of ninety days
77-15 after the expiration of the term for which it was impaneled, and
77-16 all indictments pertaining thereto returned by the grand jury
77-17 within said extended period shall be as valid as if returned before
77-18 the expiration of the term. The extension of the term of a grand
77-19 jury under this article does not affect the provisions of Article
77-20 19.06 relating to the selection and summoning of grand jurors for
77-21 each regularly scheduled term.]
77-22 [Art. 19.08. QUALIFICATIONS. No person shall be selected or
77-23 serve as a grand juror who does not possess the following
77-24 qualifications:]
77-25 [1. He must be a citizen of the state, and of the
77-26 county in which he is to serve, and be qualified under the
77-27 Constitution and laws to vote in said county, provided that his
78-1 failure to register to vote shall not be held to disqualify him in
78-2 this instance;]
78-3 [2. He must be of sound mind and good moral character;]
78-4 [3. He must be able to read and write;]
78-5 [4. He must not have been convicted of any felony;]
78-6 [5. He must not be under indictment or other legal
78-7 accusation for theft or of any felony;]
78-8 [6. He must not be related within the third degree of
78-9 consanguinity or second degree of affinity, as determined under
78-10 Chapter 573, Government Code, to any person selected to serve or
78-11 serving on the same grand jury;]
78-12 [7. He must not have served as grand juror or jury
78-13 commissioner in the year before the date on which the term of court
78-14 for which he has been selected as grand juror begins;]
78-15 [8. He must not be a complainant in any matter to be
78-16 heard by the grand jury during the term of court for which he has
78-17 been selected as a grand juror.]
78-18 [Art. 19.09. NAMES RETURNED. The names of those selected as
78-19 grand jurors by the commissioners shall be written upon a paper;
78-20 and the fact that they were so selected shall be certified and
78-21 signed by the jury commissioners, who shall place said paper, so
78-22 certified and signed, in an envelope, and seal the same, and
78-23 endorse thereon the words, "The list of grand jurors selected at
78-24 . . . . . . term of the district court", the blank being for the
78-25 month and year in which the term of the court began its session.
78-26 The commissioners shall write their names across the seal of said
78-27 envelope, direct the same to the district judge and deliver it to
79-1 him in open court.]
79-2 [Art. 19.10. LIST TO CLERK. The judge shall deliver the
79-3 envelope containing the list of grand jurors to the clerk or one of
79-4 his deputies in open court without opening the same.]
79-5 [Art. 19.11. OATH TO CLERK. Before the list of grand jurors
79-6 is delivered to the clerk, the judge shall administer to the clerk
79-7 and each of his deputies in open court the following oath: "You do
79-8 swear that you will not open the jury lists now delivered you, nor
79-9 permit them to be opened until the time prescribed by law; that you
79-10 will not, directly or indirectly, converse with any one selected as
79-11 a juror concerning any case or proceeding which may come before
79-12 such juror for trial in this court at its next term".]
79-13 [Art. 19.12. DEPUTY CLERK SWORN. Should the clerk
79-14 subsequently appoint a deputy, such clerk shall administer to him
79-15 the same oath, at the time of such appointment.]
79-16 [Art. 19.13. CLERK SHALL OPEN LISTS. The grand jury may be
79-17 convened on the first or any subsequent day of the term. The judge
79-18 shall designate the day on which the grand jury is to be impaneled
79-19 and notify the clerk of such date; and within thirty days of such
79-20 date, and not before, the clerk shall open the envelope containing
79-21 the list of grand jurors, make out a copy of the names of those
79-22 selected as grand jurors, certify to it under his official seal,
79-23 note thereon the day for which they are to be summoned, and deliver
79-24 it to the sheriff.]
79-25 [Art. 19.14. SUMMONING. The sheriff shall summon the
79-26 persons named in the list at least three days, exclusive of the day
79-27 of service, prior to the day on which the grand jury is to be
80-1 impaneled, by giving personal notice to each juror of the time and
80-2 place when and where he is to attend as a grand juror, or by
80-3 leaving at his place of residence with a member of his family over
80-4 sixteen years old, a written notice to such juror that he has been
80-5 selected as a grand juror, and the time and place when and where he
80-6 is to attend; or the judge, at his election, may direct the sheriff
80-7 to summon the grand jurors by registered or certified mail.]
80-8 [Art. 19.15. RETURN OF OFFICER. The officer executing such
80-9 summons shall return the list on the day on which the grand jury is
80-10 to be impaneled, with a certificate thereon of the date and manner
80-11 of service upon each juror. If any of said jurors have not been
80-12 summoned, he shall also state in his certificate the reason why
80-13 they have not been summoned.]
80-14 [Art. 19.16. ABSENT JUROR FINED. A juror legally summoned,
80-15 failing to attend without a reasonable excuse, may, by order of the
80-16 court entered on the record, be fined not less than ten dollars nor
80-17 more than one hundred dollars.]
80-18 [Art. 19.17. FAILURE TO SELECT. If for any reason a grand
80-19 jury shall not be selected or summoned prior to the commencement of
80-20 any term of court, or when none of those summoned shall attend, the
80-21 district judge may at any time after the commencement of the term,
80-22 in his discretion, direct a writ to be issued to the sheriff
80-23 commanding him to summon a jury commission, selected by the court,
80-24 which commission shall select twenty persons, as provided by law,
80-25 who shall serve as grand jurors.]
80-26 [Art. 19.18. IF LESS THAN TWELVE ATTEND. When less than
80-27 twelve of those summoned to serve as grand jurors are found to be
81-1 in attendance and qualified to so serve, the court shall order the
81-2 sheriff to summon such additional number of persons as may be
81-3 deemed necessary to constitute a grand jury of twelve persons.]
81-4 [Art. 19.19. JURORS TO ATTEND FORTHWITH. The jurors
81-5 provided for in the two preceding Articles shall be summoned in
81-6 person to attend before the court forthwith.]
81-7 [Art. 19.20. TO SUMMON QUALIFIED PERSONS. Upon directing
81-8 the sheriff to summon grand jurors not selected by the jury
81-9 commissioners, the court shall instruct him that he must summon no
81-10 person to serve as a grand juror who does not possess the
81-11 qualifications prescribed by law.]
81-12 [Art. 19.21. TO TEST QUALIFICATIONS. When as many as twelve
81-13 persons summoned to serve as grand jurors are in attendance upon
81-14 the court, it shall proceed to test their qualifications as such.]
81-15 [Art. 19.22. INTERROGATED. Each person who is presented to
81-16 serve as a grand juror shall, before being impaneled, be
81-17 interrogated on oath by the court or under his direction, touching
81-18 his qualifications.]
81-19 [Art. 19.23. MODE OF TEST. In trying the qualifications of
81-20 any person to serve as a grand juror, he shall be asked:]
81-21 [1. Are you a citizen of this state and county, and
81-22 qualified to vote in this county, under the Constitution and laws
81-23 of this state?]
81-24 [2. Are you able to read and write?]
81-25 [3. Have you ever been convicted of a felony?]
81-26 [4. Are you under indictment or other legal accusation
81-27 for theft or for any felony?]
82-1 [Art. 19.24. QUALIFIED JUROR ACCEPTED. When, by the answer
82-2 of the person, it appears to the court that he is a qualified
82-3 juror, he shall be accepted as such, unless it be shown that he is
82-4 not of sound mind or of good moral character, or unless it be shown
82-5 that he is in fact not qualified to serve as a grand juror.]
82-6 [Art. 19.25. EXCUSES FROM SERVICE. Any person summoned who
82-7 does not possess the requisite qualifications shall be excused by
82-8 the court from serving. The following qualified persons may be
82-9 excused from grand jury service:]
82-10 [(1) a person older than 65 years;]
82-11 [(2) a person responsible for the care of a child
82-12 younger than 18 years;]
82-13 [(3) a student of a public or private secondary
82-14 school;]
82-15 [(4) a person enrolled and in actual attendance at an
82-16 institution of higher education; and]
82-17 [(5) any other person that the court determines has a
82-18 reasonable excuse from service.]
82-19 [Art. 19.26. JURY IMPANELED. When twelve qualified jurors
82-20 are found to be present, the court shall proceed to impanel them as
82-21 a grand jury, unless a challenge is made, which may be to the array
82-22 or to any particular person presented to serve as a grand juror.]
82-23 [Art. 19.27. ANY PERSON MAY CHALLENGE. Before the grand
82-24 jury has been impaneled, any person may challenge the array of
82-25 jurors or any person presented as a grand juror. In no other way
82-26 shall objections to the qualifications and legality of the grand
82-27 jury be heard. Any person confined in jail in the county shall
83-1 upon his request be brought into court to make such challenge.]
83-2 [Art. 19.28. "ARRAY". By the "array" of grand jurors
83-3 is meant the whole body of persons summoned to serve as such before
83-4 they have been impaneled.]
83-5 [Art. 19.29. "IMPANELED" AND "PANEL". A grand juror is said
83-6 to be "impaneled" after his qualifications have been tried and he
83-7 has been sworn. By "panel" is meant the whole body of grand
83-8 jurors.]
83-9 [Art. 19.30. CHALLENGE TO "ARRAY". A challenge to the
83-10 "array" shall be made in writing for these causes only:]
83-11 [1. That those summoned as grand jurors are not in
83-12 fact those selected by the method provided by Article 19.01(b) of
83-13 this chapter or by the jury commissioners; and]
83-14 [2. In case of grand jurors summoned by order of the
83-15 court, that the officer who summoned them had acted corruptly in
83-16 summoning any one or more of them.]
83-17 [Art. 19.31. CHALLENGE TO JUROR. A challenge to a
83-18 particular grand juror may be made orally for the following causes
83-19 only:]
83-20 [1. That he is not a qualified juror; and]
83-21 [2. That he is the prosecutor upon an accusation
83-22 against the person making the challenge.]
83-23 [Art. 19.32. SUMMARILY DECIDED. When a challenge to the
83-24 array or to any individual has been made, the court shall hear
83-25 proof and decide in a summary manner whether the challenge be
83-26 well-founded or not.]
83-27 [Art. 19.33. OTHER JURORS SUMMONED. The court shall order
84-1 another grand jury to be summoned if the challenge to the array be
84-2 sustained, or order the panel to be completed if by challenge to
84-3 any particular grand juror their number be reduced below twelve.]
84-4 [Art. 19.34. OATH OF GRAND JURORS. When the grand jury is
84-5 completed, the court shall appoint one of the number foreman; and
84-6 the following oath shall be administered by the court, or under its
84-7 direction, to the jurors: "You solemnly swear that you will
84-8 diligently inquire into, and true presentment make, of all such
84-9 matters and things as shall be given you in charge; the State's
84-10 counsel, your fellows and your own, you shall keep secret, unless
84-11 required to disclose the same in the course of a judicial
84-12 proceeding in which the truth or falsity of evidence given in the
84-13 grand jury room, in a criminal case, shall be under investigation.
84-14 You shall present no person from envy, hatred or malice; neither
84-15 shall you leave any person unpresented for love, fear, favor,
84-16 affection or hope of reward; but you shall present things truly as
84-17 they come to your knowledge, according to the best of your
84-18 understanding, so help you God".]
84-19 [Art. 19.35. TO INSTRUCT JURY. The court shall instruct the
84-20 grand jury as to their duty.]
84-21 [Art. 19.36. BAILIFFS APPOINTED. The court and the district
84-22 attorney may each appoint one or more bailiffs to attend upon the
84-23 grand jury, and at the time of appointment, the following oath
84-24 shall be administered to each of them by the court, or under its
84-25 direction: "You solemnly swear that you will faithfully and
84-26 impartially perform all the duties of bailiff of the grand jury,
84-27 and that you will keep secret the proceedings of the grand jury, so
85-1 help you God". Such bailiffs shall be compensated in a sum to be
85-2 set by the commissioners court of said county.]
85-3 [Art. 19.37. BAILIFF'S DUTIES. A bailiff is to obey the
85-4 instructions of the foreman, to summon all witnesses, and
85-5 generally, to perform all such duties as the foreman may require of
85-6 him. One bailiff shall be always with the grand jury, if two or
85-7 more are appointed.]
85-8 [Art. 19.38. BAILIFF VIOLATING DUTY. No bailiff shall take
85-9 part in the discussions or deliberations of the grand jury nor be
85-10 present when they are discussing or voting upon a question. The
85-11 grand jury shall report to the court any violation of duty by a
85-12 bailiff and the court may punish him for such violation as for
85-13 contempt.]
85-14 [Art. 19.39. ANOTHER FOREMAN APPOINTED. If the foreman of
85-15 the grand jury is from any cause absent or unable or disqualified
85-16 to act, the court shall appoint in his place some other member of
85-17 the body.]
85-18 [Art. 19.40. QUORUM. Nine members shall be a quorum for the
85-19 purpose of discharging any duty or exercising any right properly
85-20 belonging to the grand jury.]
85-21 [Art. 19.41. REASSEMBLED. A grand jury discharged by the
85-22 court for the term may be reassembled by the court at any time
85-23 during the term. If one or more of them fail to reassemble, the
85-24 court may complete the panel by impaneling other men in their stead
85-25 in accordance with the rules provided in this Chapter for
85-26 completing the grand jury in the first instance.]
85-27 SECTION 21. Article 24.01(a), Code of Criminal Procedure, is
86-1 amended to read as follows:
86-2 (a) A subpoena may summon one or more persons to appear:
86-3 (1) before a court to testify in a criminal action at
86-4 a specified term of the court, [or] on a specified day, or
86-5 immediately; or
86-6 (2) on a specified day or immediately:
86-7 (A) before an examining court;
86-8 (B) at a coroner's inquest;
86-9 (C) before a grand jury;
86-10 (D) at a habeas corpus hearing; or
86-11 (E) in any other proceeding in which the
86-12 person's testimony may be required in accordance with this code.
86-13 SECTION 22. Article 24.14, Code of Criminal Procedure, is
86-14 amended to read as follows:
86-15 Art. 24.14. ATTACHMENT FOR RESIDENT WITNESS. When a witness
86-16 resides in the county of the prosecution, whether he has disobeyed
86-17 a subpoena or not, either in term-time or vacation, upon the filing
86-18 of an affidavit with the clerk by the defendant or State's counsel,
86-19 that he has good reason to believe, and does believe, that such
86-20 witness is a material witness, and will not appear [is about to
86-21 move out of the county], the clerk if ordered by the judge shall
86-22 forthwith issue an attachment for such witness; provided, that in
86-23 misdemeanor cases, when the witness makes oath that he cannot give
86-24 surety, the officer executing the attachment shall take his
86-25 personal bond.
86-26 SECTION 23. Article 26.07, Code of Criminal Procedure, is
86-27 amended to read as follows:
87-1 Art. 26.07. NAME AS STATED IN INDICTMENT OR INFORMATION.
87-2 When the defendant is arraigned, his name, as stated in the
87-3 indictment or information, shall be distinctly called; and unless
87-4 he suggest by himself or counsel that he is not indicted by his
87-5 true name, it shall be taken that his name is truly set forth, and
87-6 he shall not thereafter be allowed to deny the same by way of
87-7 defense.
87-8 SECTION 24. Article 26.08, Code of Criminal Procedure, is
87-9 amended to read as follows:
87-10 Art. 26.08. IF DEFENDANT SUGGESTS DIFFERENT NAME. If the
87-11 defendant, or his counsel for him, suggests that he bears some name
87-12 different from that stated in the indictment or information, the
87-13 same shall be noted upon the minutes of the court, the indictment
87-14 or information corrected by inserting therein the name of the
87-15 defendant as suggested by himself or his counsel for him, the style
87-16 of the case changed so as to give his true name, and the cause
87-17 proceed as if the true name had been first recited in the
87-18 indictment or information.
87-19 SECTION 25. Article 26.09, Code of Criminal Procedure, is
87-20 amended to read as follows:
87-21 Art. 26.09. IF ACCUSED REFUSES TO GIVE HIS REAL NAME. If
87-22 the defendant alleges that he is not charged [indicted] by his true
87-23 name, and refuses to say what his real name is, the cause shall
87-24 proceed as if the name stated in the indictment or information were
87-25 true; and the defendant shall not be allowed to contradict the
87-26 same by way of defense.
87-27 SECTION 26. Article 26.11, Code of Criminal Procedure, is
88-1 amended to read as follows:
88-2 Art. 26.11. INDICTMENT OR INFORMATION READ. The name of the
88-3 accused having been called, if no suggestion, such as is spoken of
88-4 in the four preceding Articles, be made, or being made is disposed
88-5 of as before directed, the indictment or information shall be read,
88-6 and the defendant asked whether he is guilty or not, as therein
88-7 charged.
88-8 SECTION 27. Article 26.13, Code of Criminal Procedure, is
88-9 amended to read as follows:
88-10 Art. 26.13. PLEA OF GUILTY. (a) Prior to accepting a plea
88-11 of guilty or a plea of nolo contendere in a felony case, the court
88-12 shall admonish the defendant of:
88-13 (1) the range of the punishment attached to the
88-14 offense;
88-15 (2) the fact that the recommendation of the
88-16 prosecuting attorney as to punishment is not binding on the court.
88-17 Provided that the court shall inquire as to the existence of any
88-18 plea bargaining agreements between the state and the defendant and,
88-19 in the event that such an agreement exists, the court shall inform
88-20 the defendant whether it will follow or reject such agreement in
88-21 open court and before any finding on the plea. Should the court
88-22 reject any such agreement, the defendant shall be permitted to
88-23 withdraw his plea of guilty or nolo contendere;
88-24 (3) the fact that if the punishment assessed does not
88-25 exceed the punishment recommended by the prosecutor and agreed to
88-26 by the defendant and his attorney, the trial court must give its
88-27 permission to the defendant before he may prosecute an appeal on
89-1 any matter in the case except for those matters raised by written
89-2 motions filed prior to trial; and
89-3 (4) the fact that if the defendant is not a citizen of
89-4 the United States of America, a plea of guilty or nolo contendere
89-5 for the offense charged may result in deportation, the exclusion
89-6 from admission to this country, or the denial of naturalization
89-7 under federal law.
89-8 (b) No plea of guilty or plea of nolo contendere shall be
89-9 accepted by the court unless it appears that the defendant is
89-10 mentally competent and the plea is free and voluntary.
89-11 (c) In admonishing the defendant as herein provided,
89-12 substantial compliance by the court is sufficient, unless the
89-13 defendant affirmatively shows that he was not aware of the
89-14 consequences of his plea and that he was misled or harmed by the
89-15 admonishment of the court.
89-16 (d) The court may make the admonitions required by this
89-17 article either orally or in writing. If the court makes the
89-18 admonitions in writing, it must receive a statement signed by the
89-19 defendant and the defendant's attorney that he understands the
89-20 admonitions and is aware of the consequences of his plea. If the
89-21 defendant is unable or refuses to sign the statement, the court
89-22 shall make the admonitions orally.
89-23 (e) Before accepting a plea of guilty or a plea of nolo
89-24 contendere, the court shall inquire as to whether a victim impact
89-25 statement has been returned to the attorney representing the state
89-26 and ask for a copy of the statement if one has been returned.
89-27 (f) The court must substantially comply with Subsection (e)
90-1 of this article. The failure of the court to comply with
90-2 Subsection (e) of this article is not grounds for the defendant to
90-3 set aside the conviction, sentence, or plea.
90-4 (g) The failure of the court to comply with Subsection
90-5 (a)(4) of this article is not grounds for the defendant to set
90-6 aside a conviction, sentence, or plea unless it is shown that the
90-7 substantial rights of the defendant have been prejudiced by the
90-8 failure of the court.
90-9 SECTION 28. Article 28.11, Code of Criminal Procedure, is
90-10 amended to read as follows:
90-11 Art. 28.11. HOW AMENDED. All amendments of an indictment or
90-12 information shall be made with the leave of the court and under its
90-13 direction. An amendment of an indictment or information is
90-14 sufficient if it is made by a physical alteration shown on the face
90-15 of the indictment or information or by attaching a separate paper
90-16 to the indictment or information.
90-17 SECTION 29. Article 29.05, Code of Criminal Procedure, is
90-18 amended to read as follows:
90-19 Art. 29.05. SUBSEQUENT MOTION BY STATE. On any subsequent
90-20 motion for a continuance by the State, for the want of a witness,
90-21 the motion, in addition to the requisites in the preceding Article,
90-22 must show:
90-23 1. The facts which the applicant expects to establish
90-24 by the witness, and it must appear to the court that they are
90-25 material;
90-26 2. That the applicant expects to be able to procure
90-27 the attendance of the witness within a reasonable period of time
91-1 [at the next term of the court]; and
91-2 3. That the testimony cannot presently be procured
91-3 from any other source [during the present term of the court].
91-4 SECTION 30. Article 29.07, Code of Criminal Procedure, is
91-5 amended to read as follows:
91-6 Art. 29.07. SUBSEQUENT MOTION BY DEFENDANT. Subsequent
91-7 motions for continuance on the part of the defendant shall, in
91-8 addition to the requisites in the preceding Article, state also:
91-9 1. That the testimony cannot be procured from any
91-10 other source known to the defendant; and
91-11 2. That the defendant has reasonable expectation of
91-12 procuring the same within a reasonable period of time [at the next
91-13 term of the court].
91-14 SECTION 31. Article 37.07, Code of Criminal Procedure, is
91-15 amended to read as follows:
91-16 Art. 37.07. VERDICT MUST BE GENERAL; SEPARATE HEARING ON
91-17 PROPER PUNISHMENT
91-18 [Sec. 1.] (a) The verdict in every criminal action must be
91-19 general. When there are special pleas on which a jury is to find
91-20 they must say in their verdict that the allegations in such pleas
91-21 are true or untrue.
91-22 (b) If the plea is not guilty, they must find that the
91-23 defendant is either guilty or not guilty, and, except as provided
91-24 in Section 2, they shall assess the punishment in all cases where
91-25 the same is not absolutely fixed by law to some particular penalty.
91-26 (c) If the charging instrument contains more than one count
91-27 or if two or more offenses are consolidated for trial pursuant to
92-1 Chapter 3 of the Penal Code, the jury shall be instructed to return
92-2 a finding of guilty or not guilty in a separate verdict as to each
92-3 count and offense submitted to them.
92-4 [Sec. 2. (a) In all criminal cases, other than misdemeanor
92-5 cases of which the justice court or municipal court has
92-6 jurisdiction, which are tried before a jury on a plea of not
92-7 guilty, the judge shall, before argument begins, first submit to
92-8 the jury the issue of guilt or innocence of the defendant of the
92-9 offense or offenses charged, without authorizing the jury to pass
92-10 upon the punishment to be imposed.]
92-11 [(b) Except as provided in Article 37.071, if a finding of
92-12 guilty is returned, it shall then be the responsibility of the
92-13 judge to assess the punishment applicable to the offense;
92-14 provided, however, that (1) in any criminal action where the jury
92-15 may recommend probation and the defendant filed his sworn motion
92-16 for probation before the trial began, and (2) in other cases where
92-17 the defendant so elects in writing before the commencement of the
92-18 voir dire examination of the jury panel, the punishment shall be
92-19 assessed by the same jury, except as provided in Article 44.29. If
92-20 a finding of guilty is returned, the defendant may, with the
92-21 consent of the attorney for the state, change his election of one
92-22 who assesses the punishment.]
92-23 [(c) Punishment shall be assessed on each count on which a
92-24 finding of guilty has been returned.]
92-25 [Sec. 3. Evidence of prior criminal record in all criminal
92-26 cases after a finding of guilty. (a) Regardless of the plea and
92-27 whether the punishment be assessed by the judge or the jury,
93-1 evidence may be offered by the state and the defendant as to any
93-2 matter the court deems relevant to sentencing, including but not
93-3 limited to the prior criminal record of the defendant, his general
93-4 reputation, his character, an opinion regarding his character, the
93-5 circumstances of the offense for which he is being tried, and,
93-6 notwithstanding Rules 404 and 405, Texas Rules of Criminal
93-7 Evidence, any other evidence of an extraneous crime or bad act that
93-8 is shown beyond a reasonable doubt by evidence to have been
93-9 committed by the defendant or for which he could be held criminally
93-10 responsible, regardless of whether he has previously been charged
93-11 with or finally convicted of the crime or act. A court may
93-12 consider as a factor in mitigating punishment the conduct of a
93-13 defendant while participating in a program under Chapter 17 of this
93-14 code as a condition of release on bail. Additionally,
93-15 notwithstanding Rule 609(d), Texas Rules of Criminal Evidence,
93-16 evidence may be offered by the state and the defendant of an
93-17 adjudication of delinquency based on a violation by the defendant
93-18 of a penal law of the grade of:]
93-19 [(1) a felony; or]
93-20 [(2) a misdemeanor punishable by confinement in jail.]
93-21 [(b) After the introduction of such evidence has been
93-22 concluded, and if the jury has the responsibility of assessing the
93-23 punishment, the court shall give such additional written
93-24 instructions as may be necessary and the order of procedure and the
93-25 rules governing the conduct of the trial shall be the same as are
93-26 applicable on the issue of guilt or innocence.]
93-27 [(c) In cases where the matter of punishment is referred to
94-1 the jury, the verdict shall not be complete until the jury has
94-2 rendered a verdict both on the guilt or innocence of the defendant
94-3 and the amount of punishment, where the jury finds the defendant
94-4 guilty. In the event the jury shall fail to agree, a mistrial
94-5 shall be declared, the jury shall be discharged, and no jeopardy
94-6 shall attach.]
94-7 [(d) When the judge assesses the punishment, he may order an
94-8 investigative report as contemplated in Section 9 of Article 42.12
94-9 of this code and after considering the report, and after the
94-10 hearing of the evidence hereinabove provided for, he shall
94-11 forthwith announce his decision in open court as to the punishment
94-12 to be assessed.]
94-13 [(e) Nothing herein contained shall be construed as
94-14 affecting the admissibility of extraneous offenses on the question
94-15 of guilt or innocence.]
94-16 [(f) In cases in which the matter of punishment is referred
94-17 to a jury, either party may offer into evidence the availability of
94-18 community corrections facilities serving the jurisdiction in which
94-19 the offense was committed.]
94-20 [(g) On timely request of the defendant, notice of intent to
94-21 introduce evidence under this article shall be given in the same
94-22 manner required by Rule 404(b), Texas Rules of Criminal Evidence.
94-23 If the attorney representing the state intends to introduce an
94-24 extraneous crime or bad act that has not resulted in a final
94-25 conviction in a court of record or a probated or suspended
94-26 sentence, notice of that intent is reasonable only if the notice
94-27 includes the date on which and the county in which the alleged
95-1 crime or bad act occurred and the name of the alleged victim of the
95-2 crime or bad act. The requirement under this subsection that the
95-3 attorney representing the state give notice applies only if the
95-4 defendant makes a timely request to the attorney representing the
95-5 state for the notice.]
95-6 [Sec. 4. (a) In the penalty phase of the trial of a felony
95-7 case in which the punishment is to be assessed by the jury rather
95-8 than the court, if the offense of which the jury has found the
95-9 defendant guilty is listed in Section 3g(a)(1), Article 42.12, of
95-10 this code or if the judgment contains an affirmative finding under
95-11 Section 3g(a)(2), Article 42.12, of this code, unless the defendant
95-12 has been convicted of a capital felony the court shall charge the
95-13 jury in writing as follows:]
95-14 ["Under the law applicable in this case, the defendant, if
95-15 sentenced to a term of imprisonment, may earn time off the period
95-16 of incarceration imposed through the award of good conduct time.
95-17 Prison authorities may award good conduct time to a prisoner who
95-18 exhibits good behavior, diligence in carrying out prison work
95-19 assignments, and attempts at rehabilitation. If a prisoner engages
95-20 in misconduct, prison authorities may also take away all or part of
95-21 any good conduct time earned by the prisoner.]
95-22 ["It is also possible that the length of time for which the
95-23 defendant will be imprisoned might be reduced by the award of
95-24 parole.]
95-25 ["Under the law applicable in this case, if the defendant is
95-26 sentenced to a term of imprisonment, he will not become eligible
95-27 for parole until the actual time served equals one-half of the
96-1 sentence imposed or 30 years, whichever is less, without
96-2 consideration of any good conduct time he may earn. If the
96-3 defendant is sentenced to a term of less than four years, he must
96-4 serve at least two years before he is eligible for parole.
96-5 Eligibility for parole does not guarantee that parole will be
96-6 granted.]
96-7 ["It cannot accurately be predicted how the parole law and
96-8 good conduct time might be applied to this defendant if he is
96-9 sentenced to a term of imprisonment, because the application of
96-10 these laws will depend on decisions made by prison and parole
96-11 authorities.]
96-12 ["You may consider the existence of the parole law and good
96-13 conduct time. However, you are not to consider the extent to which
96-14 good conduct time may be awarded to or forfeited by this particular
96-15 defendant. You are not to consider the manner in which the parole
96-16 law may be applied to this particular defendant."]
96-17 [(b) In the penalty phase of the trial of a felony case in
96-18 which the punishment is to be assessed by the jury rather than the
96-19 court, if the offense is punishable as a felony of the first
96-20 degree, if a prior conviction has been alleged for enhancement of
96-21 punishment as provided by Section 12.42(b), (c), or (d), Penal
96-22 Code, or if the offense is a felony not designated as a capital
96-23 felony or a felony of the first, second, or third degree and the
96-24 maximum term of imprisonment that may be imposed for the offense is
96-25 longer than 60 years, unless the offense of which the jury has
96-26 found the defendant guilty is listed in Section 3g(a)(1), Article
96-27 42.12, of this code or the judgment contains an affirmative finding
97-1 under Section 3g(a)(2), Article 42.12, of this code, the court
97-2 shall charge the jury in writing as follows:]
97-3 ["Under the law applicable in this case, the defendant, if
97-4 sentenced to a term of imprisonment, may earn time off the period
97-5 of incarceration imposed through the award of good conduct time.
97-6 Prison authorities may award good conduct time to a prisoner who
97-7 exhibits good behavior, diligence in carrying out prison work
97-8 assignments, and attempts at rehabilitation. If a prisoner engages
97-9 in misconduct, prison authorities may also take away all or part of
97-10 any good conduct time earned by the prisoner.]
97-11 ["It is also possible that the length of time for which the
97-12 defendant will be imprisoned might be reduced by the award of
97-13 parole.]
97-14 ["Under the law applicable in this case, if the defendant is
97-15 sentenced to a term of imprisonment, he will not become eligible
97-16 for parole until the actual time served plus any good conduct time
97-17 earned equals one-fourth of the sentence imposed or 15 years,
97-18 whichever is less. Eligibility for parole does not guarantee that
97-19 parole will be granted.]
97-20 ["It cannot accurately be predicted how the parole law and
97-21 good conduct time might be applied to this defendant if he is
97-22 sentenced to a term of imprisonment, because the application of
97-23 these laws will depend on decisions made by prison and parole
97-24 authorities.]
97-25 ["You may consider the existence of the parole law and good
97-26 conduct time. However, you are not to consider the extent to which
97-27 good conduct time may be awarded to or forfeited by this particular
98-1 defendant. You are not to consider the manner in which the parole
98-2 law may be applied to this particular defendant."]
98-3 [(c) In the penalty phase of the trial of a felony case in
98-4 which the punishment is to be assessed by the jury rather than the
98-5 court, if the offense is punishable as a felony of the second or
98-6 third degree, if a prior conviction has been alleged for
98-7 enhancement as provided by Section 12.42(a), Penal Code, or if the
98-8 offense is a felony not designated as a capital felony or a felony
98-9 of the first, second, or third degree and the maximum term of
98-10 imprisonment that may be imposed for the offense is 60 years or
98-11 less, unless the offense of which the jury has found the defendant
98-12 guilty is listed in Section 3g(a)(1), Article 42.12, of this code
98-13 or the judgment contains an affirmative finding under Section
98-14 3g(a)(2), Article 42.12, of this code, the court shall charge the
98-15 jury in writing as follows:]
98-16 ["Under the law applicable in this case, the defendant, if
98-17 sentenced to a term of imprisonment, may earn time off the period
98-18 of incarceration imposed through the award of good conduct time.
98-19 Prison authorities may award good conduct time to a prisoner who
98-20 exhibits good behavior, diligence in carrying out prison work
98-21 assignments, and attempts at rehabilitation. If a prisoner engages
98-22 in misconduct, prison authorities may also take away all or part of
98-23 any good conduct time earned by the prisoner.]
98-24 ["It is also possible that the length of time for which the
98-25 defendant will be imprisoned might be reduced by the award of
98-26 parole.]
98-27 ["Under the law applicable in this case, if the defendant is
99-1 sentenced to a term of imprisonment, he will not become eligible
99-2 for parole until the actual time served plus any good conduct time
99-3 earned equals one-fourth of the sentence imposed. Eligibility for
99-4 parole does not guarantee that parole will be granted.]
99-5 ["It cannot accurately be predicted how the parole law and
99-6 good conduct time might be applied to this defendant if he is
99-7 sentenced to a term of imprisonment, because the application of
99-8 these laws will depend on decisions made by prison and parole
99-9 authorities.]
99-10 ["You may consider the existence of the parole law and good
99-11 conduct time. However, you are not to consider the extent to which
99-12 good conduct time may be awarded to or forfeited by this particular
99-13 defendant. You are not to consider the manner in which the parole
99-14 law may be applied to this particular defendant."]
99-15 [(d) This section does not permit the introduction of
99-16 evidence on the operation of parole and good conduct time laws.]
99-17 SECTION 32. Part I, Code of Criminal Procedure, is amended
99-18 by adding Chapter 37A to read as follows:
99-19 CHAPTER 37A. PUNISHMENT HEARING
99-20 Art. 37A.01. SEPARATE HEARING ON PUNISHMENT. (a) In all
99-21 criminal cases, other than misdemeanor cases of which the justice
99-22 court or municipal court has jurisdiction, which are tried before a
99-23 jury on a plea of not guilty, the judge shall, before argument
99-24 begins, first submit to the jury the issue of guilt or innocence of
99-25 the defendant of the offense or offenses charged, without
99-26 authorizing the jury to pass upon the punishment to be imposed.
99-27 (b) Except as provided in Article 37A.05 or 37A.06, if a
100-1 finding of guilty is returned, it shall then be the responsibility
100-2 of the judge to assess the punishment applicable to the offense;
100-3 provided, however, that (1) in any criminal action where the jury
100-4 may recommend community supervision and the defendant filed his
100-5 sworn motion for community supervision before the trial began, and
100-6 (2) in other cases where the defendant so elects in writing before
100-7 the commencement of the voir dire examination of the jury panel,
100-8 the punishment shall be assessed by the same jury, except as
100-9 provided in Article 44.29 of this code. If a finding of guilty is
100-10 returned, the defendant may, with the consent of the attorney for
100-11 the state, change his election of one who assesses the punishment.
100-12 (c) Punishment shall be assessed on each count on which a
100-13 finding of guilty has been returned.
100-14 (d) In cases where the matter of punishment is referred to
100-15 the jury, the verdict shall not be complete until the jury has
100-16 rendered a verdict both on the guilt or innocence of the defendant
100-17 and the amount of punishment, where the jury finds the defendant
100-18 guilty. In the event the jury shall fail to agree, a mistrial
100-19 shall be declared, the jury shall be discharged, and no jeopardy
100-20 shall attach.
100-21 (e) When the judge assesses the punishment, he may order an
100-22 investigative report as contemplated in Article 37A.03 and after
100-23 considering the report, and after the hearing of the evidence
100-24 hereinabove provided for, he shall forthwith announce his decision
100-25 in open court as to the punishment to be assessed.
100-26 Art. 37A.02. EVIDENCE OF PRIOR CRIMINAL CONDUCT. (a)
100-27 Regardless of the plea and whether the punishment be assessed by
101-1 the judge or the jury, evidence may be offered by the state and the
101-2 defendant as to any matter the court deems relevant to sentencing,
101-3 including but not limited to the prior criminal record of the
101-4 defendant, his general reputation, his character, an opinion
101-5 regarding his character, the circumstances of the offense for which
101-6 he is being tried, and, notwithstanding Rules 404 and 405, Texas
101-7 Rules of Criminal Evidence, any other evidence of an extraneous
101-8 crime or bad act that is shown beyond a reasonable doubt by
101-9 evidence to have been committed by the defendant or for which he
101-10 could be held criminally responsible, regardless of whether he has
101-11 previously been charged with or finally convicted of the crime or
101-12 act.
101-13 (b) A court may consider as a factor in mitigating
101-14 punishment the conduct of a defendant while participating in a
101-15 program under Chapter 17 of this code as a condition of release on
101-16 bail. Additionally, notwithstanding Rule 609(d), Texas Rules of
101-17 Criminal Evidence, evidence may be offered by the state and the
101-18 defendant of an adjudication of delinquency based on a violation by
101-19 the defendant of a penal law of the grade of:
101-20 (1) a felony; or
101-21 (2) a misdemeanor punishable by confinement in jail.
101-22 (c) After the introduction of such evidence has been
101-23 concluded, and if the jury has the responsibility of assessing the
101-24 punishment, the court shall give such additional written
101-25 instructions as may be necessary and the order of procedure and the
101-26 rules governing the conduct of the trial shall be the same as are
101-27 applicable on the issue of guilt or innocence.
102-1 (d) Nothing herein contained shall be construed as affecting
102-2 the admissibility of extraneous offenses on the question of guilt
102-3 or innocence.
102-4 (e) In cases in which the matter of punishment is referred
102-5 to a jury, either party may offer into evidence the availability of
102-6 community corrections facilities serving the jurisdiction in which
102-7 the offense was committed.
102-8 (f) On timely request of the defendant, notice of intent to
102-9 introduce evidence under this article shall be given in the same
102-10 manner required by Rule 404(b), Texas Rules of Criminal Evidence.
102-11 If the attorney representing the state intends to introduce an
102-12 extraneous crime or bad act that has not resulted in a final
102-13 conviction in a court of record or a probated or suspended
102-14 sentence, notice of that intent is reasonable only if the notice
102-15 includes the date on which and the county in which the alleged
102-16 crime or bad act occurred and the name of the alleged victim of the
102-17 crime or bad act. The requirement under this subsection that the
102-18 attorney representing the state give notice applies only if the
102-19 defendant makes a timely request to the attorney representing the
102-20 state for the notice.
102-21 Art. 37A.03. PRESENTENCE INVESTIGATION. (a) Except as
102-22 provided by Subsection (g) of this section, before the imposition
102-23 of sentence by a judge in a felony case, and except as provided by
102-24 Subsection (b) of this section, before the imposition of sentence
102-25 by a judge in a misdemeanor case the judge shall direct a
102-26 supervision officer to report to the judge in writing on the
102-27 circumstances of the offense with which the defendant is charged,
103-1 the amount of restitution necessary to adequately compensate a
103-2 victim of the offense, the criminal and social history of the
103-3 defendant, and any other information relating to the defendant or
103-4 the offense requested by the judge. It is not necessary that the
103-5 report contain a sentencing recommendation, but the report must
103-6 contain a proposed client supervision plan describing programs and
103-7 sanctions that the community supervision and corrections department
103-8 would provide the defendant if the judge suspended the imposition
103-9 of the sentence or granted deferred adjudication.
103-10 (b) The judge is not required to direct a supervision
103-11 officer to prepare a report in a misdemeanor case if:
103-12 (1) the defendant requests that a report not be made
103-13 and the judge agrees to the request; or
103-14 (2) the judge finds that there is sufficient
103-15 information in the record to permit the meaningful exercise of
103-16 sentencing discretion and the judge explains this finding on the
103-17 record.
103-18 (c) The judge may not inspect a report and the contents of
103-19 the report may not be disclosed to any person unless:
103-20 (1) the defendant pleads guilty or nolo contendere or
103-21 is convicted of the offense; or
103-22 (2) the defendant, in writing, authorizes the judge to
103-23 inspect the report.
103-24 (d) Before sentencing a defendant, the judge shall permit
103-25 the defendant or his counsel to read the presentence report.
103-26 (e) The judge shall allow the defendant or his attorney to
103-27 comment on a presentence investigation or a postsentence report
104-1 and, with the approval of the judge, introduce testimony or other
104-2 information alleging a factual inaccuracy in the investigation or
104-3 report.
104-4 (f) The judge shall allow the attorney representing the
104-5 state access to any information made available to the defendant
104-6 under this section.
104-7 (g) Unless requested by the defendant, a judge is not
104-8 required to direct an officer to prepare a presentence report in a
104-9 felony case under this section if:
104-10 (1) punishment is to be assessed by a jury;
104-11 (2) the defendant is convicted of or enters a plea of
104-12 guilty or nolo contendere to capital murder;
104-13 (3) the only available punishment is imprisonment; or
104-14 (4) the judge is informed that a plea bargain
104-15 agreement exists under which the defendant agrees to a punishment
104-16 of imprisonment and the judge intends to follow the agreement.
104-17 (h) On a determination by the judge that alcohol or drug
104-18 abuse may have contributed to the commission of the offense, the
104-19 judge shall direct a supervision officer approved by the community
104-20 supervision and corrections department or the judge or a person,
104-21 program, or other agency approved by the Texas Commission on
104-22 Alcohol and Drug Abuse to conduct an evaluation to determine the
104-23 appropriateness of, and a course of conduct necessary for, alcohol
104-24 or drug rehabilitation for a defendant and to report that
104-25 evaluation to the judge. The evaluation shall be made:
104-26 (1) after arrest and before conviction, if requested
104-27 by the defendant;
105-1 (2) after conviction and before sentencing, if the
105-2 judge assesses punishment in the case;
105-3 (3) after sentencing and before the entry of a final
105-4 judgment, if the jury assesses punishment in the case; or
105-5 (4) after community supervision is granted, if the
105-6 evaluation is required as a condition of community supervision
105-7 under Section 13, Article 42.12.
105-8 (i) A presentence investigation conducted on any defendant
105-9 convicted of a felony offense who appears to the judge through the
105-10 judge's own observation or on suggestion of a party to have a
105-11 mental impairment shall include a psychological evaluation which
105-12 determines, at a minimum, the defendant's IQ and adaptive behavior
105-13 score. The results of the evaluation shall be included in the
105-14 report to the judge as required by Subsection (a) of this section.
105-15 (j) The judge by order may direct that any information and
105-16 records that are not privileged and that are relevant to a report
105-17 required by Subsection (a) or (k) of this section be released to an
105-18 officer conducting a presentence investigation under Subsection (i)
105-19 of this section or a postsentence report under Subsection (k) of
105-20 this section. The judge may also issue a subpoena to obtain that
105-21 information. A report and all information obtained in connection
105-22 with a presentence investigation or postsentence report are
105-23 confidential and may be released only to those persons and under
105-24 those circumstances authorized under Subsections (d), (e), (f),
105-25 (h), (k), and (l) of this section and as directed by the judge for
105-26 the effective supervision of the defendant. Medical and
105-27 psychiatric records obtained by court order shall be kept separate
106-1 from the defendant's community supervision file and may be released
106-2 only by order of the judge.
106-3 (k) If a presentence report in a felony case is not required
106-4 under this section, the judge shall direct the officer to prepare a
106-5 postsentence report containing the same information that would have
106-6 been required for the presentence report, other than a proposed
106-7 client supervision plan and any information that is reflected in
106-8 the judgment. The officer shall send the postsentence report to
106-9 the clerk of the court not later than the 30th day after the date
106-10 on which sentence is pronounced or deferred adjudication is
106-11 granted, and the clerk shall deliver the postsentence report with
106-12 the papers in the case to a designated officer of the Texas
106-13 Department of Criminal Justice, as required by Section 8(a),
106-14 Article 42.09, of this code.
106-15 (l) If a person is a sex offender, a supervision officer may
106-16 release information in a presentence or postsentence report
106-17 concerning the social and criminal history of the person to a
106-18 person who:
106-19 (1) is licensed or certified in this state to provide
106-20 mental health or medical services, including a:
106-21 (A) physician;
106-22 (B) psychiatrist;
106-23 (C) psychologist;
106-24 (D) licensed professional counselor;
106-25 (E) licensed marriage and family therapist; or
106-26 (F) certified social worker; and
106-27 (2) provides mental health or medical services for the
107-1 rehabilitation of the person.
107-2 (m) In this section, "sex offender" means a person who has
107-3 been convicted or has entered a plea of guilty or nolo contendere
107-4 for an offense under any one of the following provisions of the
107-5 Penal Code:
107-6 (1) Section 20.04(a)(4) (Aggravated Kidnapping), if
107-7 the person committed the offense with the intent to violate or
107-8 abuse the victim sexually;
107-9 (2) Section 21.08 (Indecent Exposure);
107-10 (3) Section 21.11 (Indecency with a Child);
107-11 (4) Section 22.011 (Sexual Assault);
107-12 (5) Section 22.021 (Aggravated Sexual Assault);
107-13 (6) Section 25.02 (Prohibited Sexual Conduct);
107-14 (7) Section 30.02 (Burglary), if:
107-15 (A) the offense is punishable under Subsection
107-16 (d) of that section; and
107-17 (B) the person committed the offense with the
107-18 intent to commit a felony listed in this subsection;
107-19 (8) Section 43.25 (Sexual Performance by a Child); or
107-20 (9) Section 43.26 (Possession or Promotion of Child
107-21 Pornography).
107-22 Art. 37A.04. JURY INSTRUCTIONS ON PUNISHMENT. (a) In the
107-23 penalty phase of the trial of a felony case in which the punishment
107-24 is to be assessed by the jury rather than the court, if the offense
107-25 of which the jury has found the defendant guilty is listed in
107-26 Section 3g(a)(1), Article 42.12, of this code or if the judgment
107-27 contains an affirmative finding under Section 3g(a)(2), Article
108-1 42.12, of this code, unless the defendant has been convicted of a
108-2 capital felony the court shall charge the jury in writing as
108-3 follows:
108-4 "Under the law applicable in this case, the defendant, if
108-5 sentenced to a term of imprisonment, may earn time off the period
108-6 of incarceration imposed through the award of good conduct time.
108-7 Prison authorities may award good conduct time to a prisoner who
108-8 exhibits good behavior, diligence in carrying out prison work
108-9 assignments, and attempts at rehabilitation. If a prisoner engages
108-10 in misconduct, prison authorities may also take away all or part of
108-11 any good conduct time earned by the prisoner.
108-12 "It is also possible that the length of time for which the
108-13 defendant will be imprisoned might be reduced by the award of
108-14 parole.
108-15 "Under the law applicable in this case, if the defendant is
108-16 sentenced to a term of imprisonment, he will not become eligible
108-17 for parole until the actual time served equals one-half of the
108-18 sentence imposed or 30 years, whichever is less, without
108-19 consideration of any good conduct time he may earn. If the
108-20 defendant is sentenced to a term of less than four years, he must
108-21 serve at least two years before he is eligible for parole.
108-22 Eligibility for parole does not guarantee that parole will be
108-23 granted.
108-24 "It cannot accurately be predicted how the parole law and
108-25 good conduct time might be applied to this defendant if he is
108-26 sentenced to a term of imprisonment, because the application of
108-27 these laws will depend on decisions made by prison and parole
109-1 authorities.
109-2 "You may consider the existence of the parole law and good
109-3 conduct time. However, you are not to consider the extent to which
109-4 good conduct time may be awarded to or forfeited by this particular
109-5 defendant. You are not to consider the manner in which the parole
109-6 law may be applied to this particular defendant."
109-7 (b) In the penalty phase of the trial of a felony case in
109-8 which the punishment is to be assessed by the jury rather than the
109-9 court, if the offense is punishable as a felony of the first
109-10 degree, if a prior conviction has been alleged for enhancement of
109-11 punishment as provided by Section 12.42(b), (c), or (d), Penal
109-12 Code, or if the offense is a felony not designated as a capital
109-13 felony or a felony of the first, second, or third degree and the
109-14 maximum term of imprisonment that may be imposed for the offense is
109-15 longer than 60 years, unless the offense of which the jury has
109-16 found the defendant guilty is listed in Section 3g(a)(1), Article
109-17 42.12, of this code or the judgment contains an affirmative finding
109-18 under Section 3g(a)(2), Article 42.12, of this code, the court
109-19 shall charge the jury in writing as follows:
109-20 "Under the law applicable in this case, the defendant, if
109-21 sentenced to a term of imprisonment, may earn time off the period
109-22 of incarceration imposed through the award of good conduct time.
109-23 Prison authorities may award good conduct time to a prisoner who
109-24 exhibits good behavior, diligence in carrying out prison work
109-25 assignments, and attempts at rehabilitation. If a prisoner engages
109-26 in misconduct, prison authorities may also take away all or part of
109-27 any good conduct time earned by the prisoner.
110-1 "It is also possible that the length of time for which the
110-2 defendant will be imprisoned might be reduced by the award of
110-3 parole.
110-4 "Under the law applicable in this case, if the defendant is
110-5 sentenced to a term of imprisonment, he will not become eligible
110-6 for parole until the actual time served plus any good conduct time
110-7 earned equals one-fourth of the sentence imposed or 15 years,
110-8 whichever is less. Eligibility for parole does not guarantee that
110-9 parole will be granted.
110-10 "It cannot accurately be predicted how the parole law and
110-11 good conduct time might be applied to this defendant if he is
110-12 sentenced to a term of imprisonment, because the application of
110-13 these laws will depend on decisions made by prison and parole
110-14 authorities.
110-15 "You may consider the existence of the parole law and good
110-16 conduct time. However, you are not to consider the extent to which
110-17 good conduct time may be awarded to or forfeited by this particular
110-18 defendant. You are not to consider the manner in which the parole
110-19 law may be applied to this particular defendant."
110-20 (c) In the penalty phase of the trial of a felony case in
110-21 which the punishment is to be assessed by the jury rather than the
110-22 court, if the offense is punishable as a felony of the second or
110-23 third degree, if a prior conviction has been alleged for
110-24 enhancement as provided by Section 12.42(a), Penal Code, or if the
110-25 offense is a felony not designated as a capital felony or a felony
110-26 of the first, second, or third degree and the maximum term of
110-27 imprisonment that may be imposed for the offense is 60 years or
111-1 less, unless the offense of which the jury has found the defendant
111-2 guilty is listed in Section 3g(a)(1), Article 42.12, of this code
111-3 or the judgment contains an affirmative finding under Section
111-4 3g(a)(2), Article 42.12, of this code, the court shall charge the
111-5 jury in writing as follows:
111-6 "Under the law applicable in this case, the defendant, if
111-7 sentenced to a term of imprisonment, may earn time off the period
111-8 of incarceration imposed through the award of good conduct time.
111-9 Prison authorities may award good conduct time to a prisoner who
111-10 exhibits good behavior, diligence in carrying out prison work
111-11 assignments, and attempts at rehabilitation. If a prisoner engages
111-12 in misconduct, prison authorities may also take away all or part of
111-13 any good conduct time earned by the prisoner.
111-14 "It is also possible that the length of time for which the
111-15 defendant will be imprisoned might be reduced by the award of
111-16 parole.
111-17 "Under the law applicable in this case, if the defendant is
111-18 sentenced to a term of imprisonment, he will not become eligible
111-19 for parole until the actual time served plus any good conduct time
111-20 earned equals one-fourth of the sentence imposed. Eligibility for
111-21 parole does not guarantee that parole will be granted.
111-22 "It cannot accurately be predicted how the parole law and
111-23 good conduct time might be applied to this defendant if he is
111-24 sentenced to a term of imprisonment, because the application of
111-25 these laws will depend on decisions made by prison and parole
111-26 authorities.
111-27 "You may consider the existence of the parole law and good
112-1 conduct time. However, you are not to consider the extent to which
112-2 good conduct time may be awarded to or forfeited by this particular
112-3 defendant. You are not to consider the manner in which the parole
112-4 law may be applied to this particular defendant."
112-5 (d) This section does not permit the introduction of
112-6 evidence on the operation of parole and good conduct time laws.
112-7 Art. 37A.05. PROCEDURE IN CAPITAL CASE
112-8 Sec. 1. If a defendant is found guilty in a capital felony
112-9 case in which the state does not seek the death penalty, the judge
112-10 shall sentence the defendant to life imprisonment.
112-11 Sec. 2. (a) If a defendant is tried for a capital offense
112-12 in which the state seeks the death penalty, on a finding that the
112-13 defendant is guilty of a capital offense, the court shall conduct a
112-14 separate sentencing proceeding to determine whether the defendant
112-15 shall be sentenced to death or life imprisonment. The proceeding
112-16 shall be conducted in the trial court and, except as provided by
112-17 Article 44.29(c) of this code, before the trial jury as soon as
112-18 practicable. In the proceeding, evidence may be presented by the
112-19 state and the defendant or the defendant's counsel as to any matter
112-20 that the court deems relevant to sentence, including evidence of
112-21 the defendant's background or character or the circumstances of the
112-22 offense that mitigates against the imposition of the death penalty.
112-23 This subsection shall not be construed to authorize the
112-24 introduction of any evidence secured in violation of the
112-25 Constitution of the United States or of the State of Texas. The
112-26 state and the defendant or the defendant's counsel shall be
112-27 permitted to present argument for or against sentence of death.
113-1 The court, the attorney representing the state, the defendant, or
113-2 the defendant's counsel may not inform a juror or a prospective
113-3 juror of the effect of a failure of a jury to agree on issues
113-4 submitted under Subsection (c) or (e) of this section.
113-5 (b) On conclusion of the presentation of the evidence, the
113-6 court shall submit the following issues to the jury:
113-7 (1) whether there is a probability that the defendant
113-8 would commit criminal acts of violence that would constitute a
113-9 continuing threat to society; and
113-10 (2) in cases in which the jury charge at the guilt or
113-11 innocence stage permitted the jury to find the defendant guilty as
113-12 a party under Sections 7.01 and 7.02, Penal Code, whether the
113-13 defendant actually caused the death of the deceased or did not
113-14 actually cause the death of the deceased but intended to kill the
113-15 deceased or another or anticipated that a human life would be
113-16 taken.
113-17 (c) The state must prove each issue submitted under
113-18 Subsection (b) of this section beyond a reasonable doubt, and the
113-19 jury shall return a special verdict of "yes" or "no" on each issue
113-20 submitted under Subsection (b) of this section.
113-21 (d) The court shall charge the jury that:
113-22 (1) in deliberating on the issues submitted under
113-23 Subsection (b) of this section, it shall consider all evidence
113-24 admitted at the guilt or innocence stage and the punishment stage,
113-25 including evidence of the defendant's background or character or
113-26 the circumstances of the offense that militates for or mitigates
113-27 against the imposition of the death penalty;
114-1 (2) it may not answer any issue submitted under
114-2 Subsection (b) of this section "yes" unless it agrees unanimously
114-3 and it may not answer any issue "no" unless 10 or more jurors
114-4 agree; and
114-5 (3) members of the jury need not agree on what
114-6 particular evidence supports a negative answer to any issue
114-7 submitted under Subsection (b) of this section.
114-8 (e) The court shall instruct the jury that if the jury
114-9 returns an affirmative finding to each issue submitted under
114-10 Subsection (b) of this section, it shall answer the following
114-11 issue:
114-12 Whether, taking into consideration all of the evidence,
114-13 including the circumstances of the offense, the defendant's
114-14 character and background, and the personal moral culpability of the
114-15 defendant, there is a sufficient mitigating circumstance or
114-16 circumstances to warrant that a sentence of life imprisonment
114-17 rather than a death sentence be imposed.
114-18 (f) The court shall charge the jury that in answering the
114-19 issue submitted under Subsection (e) of this section, the jury:
114-20 (1) shall answer the issue "yes" or "no";
114-21 (2) may not answer the issue "no" unless it agrees
114-22 unanimously and may not answer the issue "yes" unless 10 or more
114-23 jurors agree;
114-24 (3) need not agree on what particular evidence
114-25 supports an affirmative finding on the issue; and
114-26 (4) shall consider mitigating evidence to be evidence
114-27 that a juror might regard as reducing the defendant's moral
115-1 blameworthiness.
115-2 (g) If the jury returns an affirmative finding on each issue
115-3 submitted under Subsection (b) of this section and a negative
115-4 finding on an issue submitted under Subsection (e) of this section,
115-5 the court shall sentence the defendant to death. If the jury
115-6 returns a negative finding on any issue submitted under Subsection
115-7 (b) of this section or an affirmative finding on an issue submitted
115-8 under Subsection (e) of this section or is unable to answer any
115-9 issue submitted under Subsection (b) or (e) of this section, the
115-10 court shall sentence the defendant to confinement in the
115-11 institutional division of the Texas Department of Criminal Justice
115-12 for life.
115-13 (h) The judgment of conviction and sentence of death shall
115-14 be subject to automatic review by the Court of Criminal Appeals.
115-15 (i) This article applies to the sentencing procedure in a
115-16 capital case for an offense that is committed on or after September
115-17 1, 1991. For the purposes of this section, an offense is committed
115-18 on or after September 1, 1991, if any element of that offense
115-19 occurs on or after that date.
115-20 Art. 37A.06. PROCEDURE IN CAPITAL CASE FOR OFFENSE COMMITTED
115-21 BEFORE SEPTEMBER 1, 1991
115-22 Sec. 1. This article applies to the sentencing procedure in
115-23 a capital case for an offense that is committed before September 1,
115-24 1991, whether the sentencing procedure is part of the original
115-25 trial of the offense, an award of a new trial for both the guilt or
115-26 innocence stage and the punishment stage of the trial, or an award
115-27 of a new trial only for the punishment stage of the trial. For the
116-1 purposes of this section, an offense is committed before September
116-2 1, 1991, if every element of the offense occurs before that date.
116-3 Sec. 2. If a defendant is found guilty in a case in which
116-4 the state does not seek the death penalty, the judge shall sentence
116-5 the defendant to life imprisonment.
116-6 Sec. 3. (a) If a defendant is tried for a capital offense
116-7 in which the state seeks the death penalty, on a finding that the
116-8 defendant is guilty of a capital offense, the court shall conduct a
116-9 separate sentencing proceeding to determine whether the defendant
116-10 shall be sentenced to death or life imprisonment. The proceeding
116-11 shall be conducted in the trial court and, except as provided by
116-12 Article 44.29(c) of this code, before the trial jury as soon as
116-13 practicable. In the proceeding, evidence may be presented as to
116-14 any matter that the court deems relevant to sentence. This
116-15 subsection shall not be construed to authorize the introduction of
116-16 any evidence secured in violation of the Constitution of the United
116-17 States or of this state. The state and the defendant or the
116-18 defendant's counsel shall be permitted to present argument for or
116-19 against sentence of death.
116-20 (b) On conclusion of the presentation of the evidence, the
116-21 court shall submit the following three issues to the jury:
116-22 (1) whether the conduct of the defendant that caused
116-23 the death of the deceased was committed deliberately and with the
116-24 reasonable expectation that the death of the deceased or another
116-25 would result;
116-26 (2) whether there is a probability that the defendant
116-27 would commit criminal acts of violence that would constitute a
117-1 continuing threat to society; and
117-2 (3) if raised by the evidence, whether the conduct of
117-3 the defendant in killing the deceased was unreasonable in response
117-4 to the provocation, if any, by the deceased.
117-5 (c) The state must prove each issue submitted under
117-6 Subsection (b) of this section beyond a reasonable doubt, and the
117-7 jury shall return a special verdict of "yes" or "no" on each issue
117-8 submitted.
117-9 (d) The court shall charge the jury that:
117-10 (1) it may not answer any issue submitted under
117-11 Subsection (b) of this section "yes" unless it agrees unanimously;
117-12 and
117-13 (2) it may not answer any issue submitted under
117-14 Subsection (b) of this section "no" unless 10 or more jurors agree.
117-15 (e) The court shall instruct the jury that if the jury
117-16 returns an affirmative finding on each issue submitted under
117-17 Subsection (b) of this section, it shall answer the following
117-18 issue:
117-19 Whether, taking into consideration all of the evidence,
117-20 including the circumstances of the offense, the defendant's
117-21 character and background, and the personal moral culpability of the
117-22 defendant, there is a sufficient mitigating circumstance or
117-23 circumstances to warrant that a sentence of life imprisonment
117-24 rather than a death sentence be imposed.
117-25 (f) The court shall charge the jury that, in answering the
117-26 issue submitted under Subsection (e) of this section, the jury:
117-27 (1) shall answer the issue "yes" or "no";
118-1 (2) may not answer the issue "no" unless it agrees
118-2 unanimously and may not answer the issue "yes" unless 10 or more
118-3 jurors agree; and
118-4 (3) shall consider mitigating evidence that a juror
118-5 might regard as reducing the defendant's moral blameworthiness.
118-6 (g) If the jury returns an affirmative finding on each issue
118-7 submitted under Subsection (b) of this section and a negative
118-8 finding on the issue submitted under Subsection (e) of this
118-9 section, the court shall sentence the defendant to death. If the
118-10 jury returns a negative finding on any issue submitted under
118-11 Subsection (b) of this section or an affirmative finding on the
118-12 issue submitted under Subsection (e) of this section or is unable
118-13 to answer any issue submitted under Subsection (b) or (e) of this
118-14 section, the court shall sentence the defendant to confinement in
118-15 the institutional division of the Texas Department of Criminal
118-16 Justice for life.
118-17 (h) If a defendant is convicted of an offense under Section
118-18 19.03(a)(7), Penal Code, the court shall submit the issues under
118-19 Subsections (b) and (e) of this section only with regard to the
118-20 conduct of the defendant in murdering the deceased individual first
118-21 named in the indictment.
118-22 (i) The court, the attorney for the state, or the attorney
118-23 for the defendant may not inform a juror or prospective juror of
118-24 the effect of failure of the jury to agree on an issue submitted
118-25 under this article.
118-26 (j) The Court of Criminal Appeals shall automatically review
118-27 a judgment of conviction and sentence of death not later than the
119-1 60th day after the date of certification by the sentencing court of
119-2 the entire record, unless the Court of Criminal Appeals extends the
119-3 time for an additional period not to exceed 30 days for good cause
119-4 shown. Automatic review under this subsection has priority over
119-5 all other cases before the Court of Criminal Appeals, and the court
119-6 shall hear automatic reviews under rules adopted by the court for
119-7 that purpose.
119-8 SECTION 33. Article 38.071, Code of Criminal Procedure, is
119-9 amended to read as follows:
119-10 Art. 38.071. TESTIMONY OF CHILD [WHO IS] VICTIM OR WITNESS
119-11 [OF OFFENSE]
119-12 Sec. 1. This article applies only to the statements or
119-13 testimony of a child 12 years of age or younger in a proceeding in
119-14 the prosecution of an offense [defined by any of the following
119-15 sections of the Penal Code if the offense is] alleged to have been
119-16 committed against a child 12 years of age or younger or to a
119-17 proceeding in the prosecution of an offense in which a child 12
119-18 years of age or younger is a witness, and only if the trial court
119-19 finds that the child is unavailable to testify in the courtroom.
119-20 [at the trial of the offense, and applies only to the statements or
119-21 testimony of that child:]
119-22 [(1) Section 21.11 (Indecency with a Child);]
119-23 [(2) Section 22.011 (Sexual Assault);]
119-24 [(3) Section 22.02 (Aggravated Assault);]
119-25 [(4) Section 22.021 (Aggravated Sexual Assault);]
119-26 [(5) Section 22.04(e) (Injury to a Child, Elderly
119-27 Individual, or Disabled Individual);]
120-1 [(6) Section 22.04(f) (Injury to a Child, Elderly
120-2 Individual, or Disabled Individual), if the conduct is committed
120-3 intentionally or knowingly;]
120-4 [(7) Section 25.02 (Prohibited Sexual Conduct); or]
120-5 [(8) Section 43.25 (Sexual Performance by a Child).]
120-6 Sec. 2. (a) In making a determination of unavailability
120-7 under this article, the court shall consider relevant factors
120-8 including the relationship of the defendant to the child, the
120-9 character and duration of the alleged offense, the age, maturity,
120-10 and emotional stability of the child, and the time elapsed since
120-11 the alleged offense and whether the child is more likely than not
120-12 to be unavailable to testify because:
120-13 (1) of emotional or physical causes, including the
120-14 confrontation with the defendant, as opposed to the ordinary
120-15 involvement as complainant or witness in the courtroom trial; or
120-16 (2) the child would suffer undue psychological or
120-17 physical harm through his testimony in the courtroom such that the
120-18 child cannot effectively communicate.
120-19 (b) A determination of unavailability under this article can
120-20 be made after an earlier determination of availability. A
120-21 determination of availability under this article can be made after
120-22 an earlier determination of unavailability. [The recording of an
120-23 oral statement of the child made before the indictment is returned
120-24 or the complaint has been filed is admissible into evidence if the
120-25 court makes a determination that the factual issues of identity or
120-26 actual occurrence were fully and fairly inquired into in a detached
120-27 manner by a neutral individual experienced in child abuse cases
121-1 that seeks to find the truth of the matter.]
121-2 [(b) If a recording is made under Subsection (a) of this
121-3 section and after an indictment is returned or a complaint has been
121-4 filed, by motion of the attorney representing the state or the
121-5 attorney representing the defendant and on the approval of the
121-6 court, both attorneys may propound written interrogatories that
121-7 shall be presented by the same neutral individual who made the
121-8 initial inquiries, if possible, and recorded under the same or
121-9 similar circumstances of the original recording with the time and
121-10 date of the inquiry clearly indicated in the recording.]
121-11 [(c) A recording made under Subsection (a) of this section
121-12 is not admissible into evidence unless a recording made under
121-13 Subsection (b) is admitted at the same time if a recording under
121-14 Subsection (b) was requested prior to time of trial.]
121-15 Sec. 3. (a) On its own motion or on the motion of the
121-16 attorney representing the state or the attorney representing the
121-17 defendant, the court on a finding of good cause may order that the
121-18 testimony of the child be taken during the trial in a room other
121-19 than the courtroom and be televised by closed circuit equipment in
121-20 the courtroom to be viewed by the court and the trier [finder] of
121-21 fact. Before authorizing the use of a closed circuit system to
121-22 transmit a child's testimony, a trial court must hear evidence and
121-23 make specific findings on the record that:
121-24 (1) the system is necessary to protect the child;
121-25 (2) the child would be traumatized by the defendant's
121-26 physical presence, not merely by being in the courtroom generally;
121-27 and
122-1 (3) the child would suffer undue psychological or
122-2 physical harm through the child's testimony in the courtroom such
122-3 that the child cannot effectively communicate.
122-4 (b) To the extent practicable, only the judge, the court
122-5 reporter, the attorneys for the defendant and for the state,
122-6 persons necessary to operate the equipment, and any person whose
122-7 presence would contribute to the welfare and well-being of the
122-8 child may be present in the room with the child during his
122-9 testimony. Only the attorneys and the judge may question the
122-10 child. If the closed circuit system used is a one-way system, the
122-11 [To the extent practicable, the persons necessary to operate the
122-12 equipment shall be confined to an adjacent room or behind a screen
122-13 or mirror that permits them to see and hear the child during his
122-14 testimony, but does not permit the child to see or hear them. The]
122-15 court shall permit the defendant to observe and hear the testimony
122-16 of the child and to communicate contemporaneously with his attorney
122-17 during periods of recess or by audio contact[, but the court shall
122-18 attempt to ensure that the child cannot hear or see the defendant].
122-19 The court shall permit the attorney for the defendant adequate
122-20 opportunity to confer with the defendant during cross-examination
122-21 of the child. On application of the attorney for the defendant,
122-22 the court may recess the proceeding before or during
122-23 cross-examination of the child for a reasonable time to allow the
122-24 attorney for the defendant to confer with defendant.
122-25 (c) [(b)] The court may set any other conditions and
122-26 limitations on the taking of the testimony that it finds just and
122-27 appropriate, taking into consideration the interests of the child,
123-1 the rights of the defendant, and any other relevant factors.
123-2 Sec. 4. [(a) After an indictment has been returned or a
123-3 complaint filed charging the defendant with an offense to which
123-4 this article applies, on its own motion or on the motion of the
123-5 attorney representing the state or the attorney representing the
123-6 defendant, the court may order that the testimony of the child be
123-7 taken outside the courtroom and be recorded for showing in the
123-8 courtroom before the court and the finder of fact. To the extent
123-9 practicable, only those persons permitted to be present at the
123-10 taking of testimony under Section 3 of this article may be present
123-11 during the taking of the child's testimony, and the persons
123-12 operating the equipment shall be confined from the child's sight
123-13 and hearing as provided by Section 3. The court shall permit the
123-14 defendant to observe and hear the testimony of the child and to
123-15 communicate contemporaneously with his attorney during periods of
123-16 recess or by audio contact but shall attempt to ensure that the
123-17 child cannot hear or see the defendant.]
123-18 [(b) The court may set any other conditions and limitations
123-19 on the taking of the testimony that it finds just and appropriate,
123-20 taking into consideration the interests of the child, the rights of
123-21 the defendant, and any other relevant factors. The court shall
123-22 also ensure that:]
123-23 [(1) the recording is both visual and aural and is
123-24 recorded on film or videotape or by other electronic means;]
123-25 [(2) the recording equipment was capable of making an
123-26 accurate recording, the operator was competent, the quality of the
123-27 recording is sufficient to allow the court and the finder of fact
124-1 to assess the demeanor of the child and the interviewer, and the
124-2 recording is accurate and is not altered;]
124-3 [(3) each voice on the recording is identified;]
124-4 [(4) the defendant, the attorneys for each party, and
124-5 the expert witnesses for each party are afforded an opportunity to
124-6 view the recording before it is shown in the courtroom;]
124-7 [(5) before giving his testimony, the child was placed
124-8 under oath or was otherwise admonished in a manner appropriate to
124-9 the child's age and maturity to testify truthfully;]
124-10 [(6) the court finds from the recording or through an
124-11 in camera examination of the child that the child was competent to
124-12 testify at the time the recording was made; and]
124-13 [(7) only one continuous recording of the child was
124-14 made or the necessity for pauses in the recordings or for multiple
124-15 recordings is established at trial.]
124-16 [(c) After a complaint has been filed or an indictment
124-17 returned charging the defendant, on the motion of the attorney
124-18 representing the state, the court may order that the deposition of
124-19 the child be taken outside of the courtroom in the same manner as a
124-20 deposition may be taken in a civil matter. A deposition taken
124-21 under this subsection is admissible into evidence.]
124-22 [Sec. 5. (a) On the motion of the attorney representing the
124-23 state or the attorney representing the defendant and on a finding
124-24 by the trial court that the following requirements have been
124-25 substantially satisfied, the recording of an oral statement of the
124-26 child made before a complaint has been filed or an indictment
124-27 returned charging any person with an offense to which this article
125-1 applies is admissible into evidence if:]
125-2 [(1) no attorney or peace officer was present when the
125-3 statement was made;]
125-4 [(2) the recording is both visual and aural and is
125-5 recorded on film or videotape or by other electronic means;]
125-6 [(3) the recording equipment was capable of making an
125-7 accurate recording, the operator of the equipment was competent,
125-8 the quality of the recording is sufficient to allow the court and
125-9 the finder of fact to assess the demeanor of the child and the
125-10 interviewer, and the recording is accurate and has not been
125-11 altered;]
125-12 [(4) the statement was not made in response to
125-13 questioning calculated to lead the child to make a particular
125-14 statement;]
125-15 [(5) every voice on the recording is identified;]
125-16 [(6) the person conducting the interview of the child
125-17 in the recording is expert in the handling, treatment, and
125-18 investigation of child abuse cases, present at the proceeding,
125-19 called by the state as part of the state's case in chief to testify
125-20 at trial, and subject to cross-examination;]
125-21 [(7) immediately after a complaint was filed or an
125-22 indictment returned charging the defendant with an offense to which
125-23 this article applies, the attorney representing the state notified
125-24 the court, the defendant, and the attorney representing the
125-25 defendant of the existence of the recording and that the recording
125-26 may be used at the trial of the offense;]
125-27 [(8) the defendant, the attorney for the defendant,
126-1 and the expert witnesses for the defendant were afforded an
126-2 opportunity to view the recording before it is offered into
126-3 evidence and, if a proceeding was requested as provided by
126-4 Subsection (b) of this section, in a proceeding conducted before a
126-5 district court judge but outside the presence of the jury were
126-6 afforded an opportunity to cross-examine the child as provided by
126-7 Subsection (b) of this section from any time immediately following
126-8 the filing of the complaint or the returning of an indictment
126-9 charging the defendant with an offense to which this article
126-10 applies until the date the trial begins;]
126-11 [(9) the recording of the cross-examination, if there
126-12 is one, is admissible under Subsection (b) of this section;]
126-13 [(10) before giving his testimony, the child was
126-14 placed under oath or was otherwise admonished in a manner
126-15 appropriate to the child's age and maturity to testify truthfully;]
126-16 [(11) the court finds from the recording or through an
126-17 in camera examination of the child that the child was competent to
126-18 testify at the time that the recording was made; and]
126-19 [(12) only one continuous recording of the child was
126-20 made or the necessity for pauses in the recordings or for multiple
126-21 recordings has been established at trial.]
126-22 [(b) On the motion of the attorney representing the
126-23 defendant, a district court may order that the cross-examination of
126-24 the child be taken and be recorded before the judge of that court
126-25 at any time until a recording made in accordance with Subsection
126-26 (a) of this section has been introduced into evidence at the trial.
126-27 On a finding by the trial court that the following requirements
127-1 were satisfied, the recording of the cross-examination of the child
127-2 is admissible into evidence and shall be viewed by the finder of
127-3 fact only after the finder of fact has viewed the recording
127-4 authorized by Subsection (a) of this section if:]
127-5 [(1) the recording is both visual and aural and is
127-6 recorded on film or videotape or by other electronic means;]
127-7 [(2) the recording equipment was capable of making an
127-8 accurate recording, the operator of the equipment was competent,
127-9 the quality of the recording is sufficient to allow the court and
127-10 the finder of fact to assess the demeanor of the child and the
127-11 attorney representing the defendant, and the recording is accurate
127-12 and has not been altered;]
127-13 [(3) every voice on the recording is identified;]
127-14 [(4) the defendant, the attorney representing the
127-15 defendant, the attorney representing the state, and the expert
127-16 witnesses for the defendant and the state were afforded an
127-17 opportunity to view the recording before the trial began;]
127-18 [(5) the child was placed under oath before the
127-19 cross-examination began or was otherwise admonished in a manner
127-20 appropriate to the child's age and maturity to testify truthfully;
127-21 and]
127-22 [(6) only one continuous recording of the child was
127-23 made or the necessity for pauses in the recordings or for multiple
127-24 recordings was established at trial.]
127-25 [(c) During cross-examination under Subsection (b) of this
127-26 section, to the extent practicable, only a district court judge,
127-27 the attorney representing the defendant, the attorney representing
128-1 the state, persons necessary to operate the equipment, and any
128-2 other person whose presence would contribute to the welfare and
128-3 well-being of the child may be present in the room with the child
128-4 during his testimony. Only the attorneys and the judge may
128-5 question the child. To the extent practicable, the persons
128-6 operating the equipment shall be confined to an adjacent room or
128-7 behind a screen or mirror that permits them to see and hear the
128-8 child during his testimony but does not permit the child to see or
128-9 hear them. The court shall permit the defendant to observe and
128-10 hear the testimony of the child and to communicate
128-11 contemporaneously with his attorney during periods of recess or by
128-12 audio contact, but shall attempt to ensure that the child cannot
128-13 hear or see the defendant.]
128-14 [(d) Under Subsection (b) of this section the district court
128-15 may set any other conditions and limitations on the taking of the
128-16 cross-examination of a child that it finds just and appropriate,
128-17 taking into consideration the interests of the child, the rights of
128-18 the defendant, and any other relevant factors.]
128-19 [Sec. 6. If the court orders the testimony of a child to be
128-20 taken under Section 3 or 4 of this article or if the court finds
128-21 the testimony of the child taken under Section 2 or 5 of this
128-22 article is admissible into evidence, the child may not be required
128-23 to testify in court at the proceeding for which the testimony was
128-24 taken, unless the court finds there is good cause.]
128-25 [Sec. 7.] In making any determination of good cause under
128-26 this article, the court shall consider the rights of the defendant,
128-27 the interests of the child, the relationship of the defendant to
129-1 the child, the character and duration of the alleged offense, any
129-2 court finding related to the availability of the child to testify,
129-3 the age, maturity, and emotional stability of the child, the time
129-4 elapsed since the alleged offense, and any other relevant factors.
129-5 [Sec. 8. (a) In making a determination of unavailability
129-6 under this article, the court shall consider relevant factors
129-7 including the relationship of the defendant to the child, the
129-8 character and duration of the alleged offense, the age, maturity,
129-9 and emotional stability of the child, and the time elapsed since
129-10 the alleged offense, and whether the child is more likely than not
129-11 to be unavailable to testify because:]
129-12 [(1) of emotional or physical causes, including the
129-13 confrontation with the defendant or the ordinary involvement as
129-14 complainant in the courtroom trial; or]
129-15 [(2) the child would suffer undue psychological or
129-16 physical harm through his involvement at trial.]
129-17 [(b) A determination of unavailability under this article
129-18 can be made after an earlier determination of availability. A
129-19 determination of availability under this article can be made after
129-20 an earlier determination of unavailability.]
129-21 [Sec. 9. If the court finds the testimony taken under
129-22 Section 2 or 5 of this article is admissible into evidence or if
129-23 the court orders the testimony to be taken under Section 3 or 4 of
129-24 this article and if the identity of the perpetrator is a contested
129-25 issue, the child additionally must make an in-person identification
129-26 of the defendant either at or before trial.]
129-27 [Sec. 10. In ordering a child to testify under this article,
130-1 the court shall take all reasonable steps necessary and available
130-2 to minimize undue psychological trauma to the child and to minimize
130-3 the emotional and physical stress to the child caused by relevant
130-4 factors, including the confrontation with the defendant and the
130-5 ordinary participation of the complainant in the courtroom.]
130-6 [Sec. 11. In a proceeding under Section 2, 3, or 4 or
130-7 Subsection (b) of Section 5 of this article, if the defendant is
130-8 not represented by counsel and the court finds that the defendant
130-9 is not able to obtain counsel for the purposes of the proceeding,
130-10 the court shall appoint counsel to represent the defendant at the
130-11 proceeding.]
130-12 [Sec. 12. In this article, "cross-examination" has the same
130-13 meaning as in other legal proceedings in the state.]
130-14 [Sec. 13. The attorney representing the state shall
130-15 determine whether to use the procedure provided in Section 2 of
130-16 this article or the procedure provided in Section 5 of this
130-17 article.]
130-18 SECTION 34. Article 42.01, Code of Criminal Procedure, is
130-19 amended to read as follows:
130-20 Art. 42.01. JUDGMENT
130-21 Sec. 1. A judgment is the written declaration of the court
130-22 signed by the trial judge and entered of record showing the
130-23 conviction or acquittal of the defendant. The sentence served
130-24 shall be based on the information contained in the judgment. The
130-25 judgment should reflect:
130-26 1. The title and number of the case;
130-27 2. That the case was called and the parties appeared,
131-1 naming the attorney for the state, the defendant, and the attorney
131-2 for the defendant, or, where a defendant is not represented by
131-3 counsel, that the defendant knowingly, intelligently, and
131-4 voluntarily waived the right to representation by counsel;
131-5 3. The plea or pleas of the defendant to the offense
131-6 charged;
131-7 4. Whether the case was tried before a jury or a jury
131-8 was waived;
131-9 5. The submission of the evidence, if any;
131-10 6. In cases tried before a jury that the jury was
131-11 charged by the court;
131-12 7. The verdict or verdicts of the jury or the finding
131-13 or findings of the court;
131-14 8. In the event of a conviction that the defendant is
131-15 adjudged guilty of the offense as found by the verdict of the jury
131-16 or the finding of the court, and that the defendant be punished in
131-17 accordance with the jury's verdict or the court's finding as to the
131-18 proper punishment;
131-19 9. In the event of conviction where death or any
131-20 punishment is assessed that the defendant be sentenced to death, a
131-21 term of confinement or community supervision, or to pay a fine, as
131-22 the case may be;
131-23 10. In the event of conviction where the imposition of
131-24 sentence is suspended and the defendant is placed on community
131-25 supervision, setting forth the punishment assessed, the length of
131-26 community supervision, and the conditions of community supervision;
131-27 11. In the event of acquittal that the defendant be
132-1 discharged;
132-2 12. The county and court in which the case was tried
132-3 and, if there was a change of venue in the case, the name of the
132-4 county in which the prosecution was originated;
132-5 13. The offense or offenses for which the defendant
132-6 was convicted;
132-7 14. The date of the offense or offenses and degree of
132-8 offense for which the defendant was convicted;
132-9 15. The term of sentence;
132-10 16. The date judgment is entered;
132-11 17. The date sentence is imposed;
132-12 18. The date sentence is to commence and any credit
132-13 for time served;
132-14 19. The terms of any order entered pursuant to Article
132-15 42.08 of this code that the defendant's sentence is to run
132-16 cumulatively or concurrently with another sentence or sentences;
132-17 20. The terms of any plea bargain;
132-18 21. Affirmative findings entered pursuant to law,
132-19 including findings relating to:
132-20 (A) whether under Section 19.02, Penal Code, the
132-21 defendant caused the death of another under the immediate influence
132-22 of sudden passion;
132-23 (B) whether under Section 20.04, Penal Code, the
132-24 defendant voluntarily released in a safe place the victim of the
132-25 offense;
132-26 (C) whether under Section 46.11, Penal Code, the
132-27 defendant committed the offense in a weapon-free school zone;
133-1 (D) whether under Section 49.04, Penal Code,
133-2 the defendant had an open container of alcohol in the person's
133-3 immediate possession while committing the offense;
133-4 (E) whether under Section 481.134, Health and
133-5 Safety Code, the defendant committed the offense in a drug-free
133-6 school zone;
133-7 (F) whether under Article 42.013 of this code,
133-8 the offense involved family violence;
133-9 (G) whether under Article 42.014 of this code,
133-10 the defendant selected the victim primarily because of the
133-11 defendant's bias or prejudice; and
133-12 (H) whether under Section 3g(a)(2), Article
133-13 42.12 of this code, the defendant used or exhibited a deadly weapon
133-14 during the commission of or during immediate flight following the
133-15 commission of an offense [Subdivision (2) of Subsection (a) of
133-16 Section 3g of Article 42.12 of this code];
133-17 22. The terms of any fee payment ordered under
133-18 Articles 37.072 and 42.151 of this code;
133-19 23. The defendant's thumbprint taken in accordance
133-20 with Section 5 of this article [Article 38.33 of this code];
133-21 24. In the event that the judge orders the defendant
133-22 to repay a reward or part of a reward under Articles 37.073 and
133-23 42.152 of this code, a statement of the amount of the payment or
133-24 payments required to be made;
133-25 25. In the event that the court orders restitution to
133-26 be paid to the victim, a statement of the amount of restitution
133-27 ordered and:
134-1 (A) the name of the victim and the permanent
134-2 mailing address of the victim at the time of the judgment; or
134-3 (B) if the court determines that the inclusion
134-4 of the victim's name and address in the judgment is not in the best
134-5 interest of the victim, the name and address of a person or agency
134-6 that will accept and forward restitution payments to the victim;
134-7 26. In the event that a presentence investigation is
134-8 required by Article 37A.03 [Section 9(a), (b), (h), or (i), Article
134-9 42.12] of this code, a statement that the presentence investigation
134-10 was done according to the applicable provision; and
134-11 27. In the event of conviction of an offense for which
134-12 registration as a sex offender is required under Article
134-13 6252-13c.1, Revised Statutes, a statement that the registration
134-14 requirement of that article applies to the defendant and a
134-15 statement of the age of the victim of the offense.
134-16 Sec. 2. The judge may order the clerk of the court, the
134-17 prosecuting attorney, or the attorney or attorneys representing any
134-18 defendant to prepare the judgment, or the court may prepare the
134-19 same.
134-20 Sec. 3. The provisions of this article shall apply to both
134-21 felony and misdemeanor cases.
134-22 Sec. 4. The Office of Court Administration of the Texas
134-23 Judicial System shall promulgate a standardized felony judgment
134-24 form that conforms to the requirements of Section 1 of this
134-25 article.
134-26 Sec. 5. (a) The court shall order that a defendant who is
134-27 convicted of a felony or a misdemeanor that is punishable by
135-1 confinement in jail have a thumbprint of the defendant's right
135-2 thumb rolled legibly on the judgment or the docket sheet in the
135-3 case. The court shall order a defendant who is placed on community
135-4 supervision for an offense described by this section to have a
135-5 thumbprint of the defendant's right thumb rolled legibly on the
135-6 order placing the defendant on community supervision. If the
135-7 defendant does not have a right thumb, the defendant must have a
135-8 thumbprint of the defendant's left thumb rolled legibly on the
135-9 judgment, order, or docket sheet. The defendant must have a
135-10 fingerprint of the defendant's index finger rolled legibly on the
135-11 judgment, order, or docket sheet if the defendant does not have a
135-12 right thumb or a left thumb. The judgment, order, or docket sheet
135-13 must contain a statement that describes from which thumb or finger
135-14 the print was taken, unless a rolled 10-finger print set was taken.
135-15 (b) A clerk or bailiff of the court or other person
135-16 qualified to take fingerprints shall take the thumbprint or
135-17 fingerprint, either by use of the ink-rolled print method or by use
135-18 of a live-scanning device that prints the thumbprint or fingerprint
135-19 image on the judgment, order, or docket sheet.
135-20 (c) This section does not prohibit a court from including in
135-21 the records of the case additional information to identify the
135-22 defendant. [In addition to the information described by Section 1
135-23 of this article, the judgment should reflect affirmative findings
135-24 entered pursuant to Article 42.013 of this code.]
135-25 Sec. 6. If the punishment is any other than a fine, the
135-26 judgment shall specify it and order it enforced by the proper
135-27 process. It shall also adjudge the costs against the defendant,
136-1 and order the collection thereof as in other cases. [In addition
136-2 to the information described by Section 1 of this article, the
136-3 judgment should reflect affirmative findings entered pursuant to
136-4 Article 42.014 of this code.]
136-5 SECTION 35. Subchapter A, Chapter 56, Code of Criminal
136-6 Procedure, is amended by adding Article 56.13 to read as follows:
136-7 Art. 56.13. POLYGRAPH EXAMINATION OF COMPLAINANT PROHIBITED.
136-8 (a) A peace officer may not require a polygraph examination of a
136-9 person who charges or seeks to charge in a complaint the commission
136-10 of an offense under Section 21.11, 22.011, 22.021, or 25.02, Penal
136-11 Code.
136-12 (b) If an attorney representing the state requests a
136-13 polygraph examination of a person who charges or seeks to charge in
136-14 a complaint the commission of an offense listed in Subsection (a)
136-15 of this article, the attorney must inform the complainant that the
136-16 examination is not required and that a complaint may not be
136-17 dismissed solely:
136-18 (1) because a complainant did not take a polygraph
136-19 examination; or
136-20 (2) on the basis of the results of a polygraph
136-21 examination taken by the complainant.
136-22 (c) An attorney representing the state may not take a
136-23 polygraph examination of a person who charges or seeks to charge
136-24 the commission of an offense listed in Subsection (a) of this
136-25 article unless the attorney provides the information in Subsection
136-26 (b) of this article to the person and the person signs a statement
136-27 indicating the person understands the information.
137-1 (d) A complaint may not be dismissed solely:
137-2 (1) because a complainant did not take a polygraph
137-3 examination; or
137-4 (2) on the basis of the results of a polygraph
137-5 examination taken by the complainant.
137-6 SECTION 36. Part I, Code of Criminal Procedure, is amended
137-7 by adding Chapter 62 to read as follows:
137-8 CHAPTER 62. NOTIFYING SCHOOLS OF CERTAIN CRIMINAL
137-9 CONDUCT
137-10 Art. 62.01. NOTIFICATION TO SCHOOLS REQUIRED. (a) A law
137-11 enforcement agency that arrests or takes into custody as provided
137-12 by Chapter 52, Family Code, an individual who the agency knows or
137-13 believes is enrolled as a student in a public primary or secondary
137-14 school, for an offense listed in Subsection (h) of this article,
137-15 shall orally notify the superintendent or a person designated by
137-16 the superintendent in the school district in which the student is
137-17 enrolled or believed to be enrolled of that arrest or detention
137-18 within 24 hours after the arrest or detention, or on the next
137-19 school day. The superintendent shall promptly notify all
137-20 instructional and support personnel who have regular contact with
137-21 the student. All personnel shall keep the information received in
137-22 this subsection confidential. The State Board for Educator
137-23 Certification may revoke or suspend the certification of personnel
137-24 who intentionally violate this subsection. Within seven days after
137-25 the date the oral notice is given, the law enforcement agency shall
137-26 mail written notification, marked "PERSONAL and CONFIDENTIAL" on
137-27 the mailing envelope, to the superintendent or the person
138-1 designated by the superintendent. The written notification must
138-2 have the following printed on its face in large, bold letters:
138-3 "WARNING: The information contained in this notice is intended
138-4 only to inform appropriate school personnel of an arrest or
138-5 detention of a student believed to be enrolled in this school. An
138-6 arrest or detention should not be construed as proof that the
138-7 student is guilty. Guilt is determined in a court of law. THE
138-8 INFORMATION CONTAINED IN THIS NOTICE IS CONFIDENTIAL!"
138-9 (b) On conviction or on an adjudication of delinquent
138-10 conduct of an individual enrolled as a student in a public primary
138-11 or secondary school, for an offense or for any conduct listed in
138-12 Subsection (h) of this article, the office of the prosecuting
138-13 attorney acting in the case shall notify the superintendent or a
138-14 person designated by the superintendent in the school district in
138-15 which the student is enrolled of the conviction or adjudication.
138-16 Oral notification must be given within 24 hours of the time of the
138-17 determination of guilt, or on the next school day. Within seven
138-18 days after the date the oral notice is given, the office of the
138-19 prosecuting attorney shall mail written notice, which must contain
138-20 a statement of the offense of which the individual is convicted or
138-21 on which the adjudication is grounded.
138-22 (c) A parole or probation office having jurisdiction over a
138-23 student described by Subsection (a), (b), or (e) of this article
138-24 who transfers from a school or is subsequently removed from a
138-25 school and later returned to a school or school district other than
138-26 the one in which the student was enrolled when the arrest,
138-27 detention, conviction, or adjudication occurred shall notify the
139-1 new school officials of the arrest or detention in a manner similar
139-2 to that provided for by Subsection (a) or (e)(1) of this article,
139-3 or of the conviction or delinquent adjudication in a manner similar
139-4 to that provided for by Subsection (b) or (e)(2) of this article.
139-5 (d) The superintendent or a person designated by the
139-6 superintendent in the school district may send to a school district
139-7 employee having direct supervisory responsibility over the student
139-8 the information contained in the confidential notice if the
139-9 superintendent or the person designated by the superintendent
139-10 determines that the school district employee needs the information
139-11 for educational purposes or for the protection of the person
139-12 informed or others.
139-13 (e)(1) A law enforcement agency that arrests or detains an
139-14 individual that the law enforcement agency knows or believes is
139-15 enrolled as a student in a private primary or secondary school
139-16 shall make the oral and written notifications described by
139-17 Subsection (a) of this article to the principal or a school
139-18 employee designated by the principal of the school in which the
139-19 student is enrolled.
139-20 (2) On conviction or on an adjudication of delinquent
139-21 conduct of an individual enrolled as a student in a private primary
139-22 or secondary school, the office of prosecuting attorney shall make
139-23 the oral and written notifications described by Subsection (b) of
139-24 this article to the principal or a school employee designated by
139-25 the principal of the school in which the student is enrolled.
139-26 (3) The principal of a private school in which the
139-27 student is enrolled or a school employee designated by the
140-1 principal may send to a school employee having direct supervisory
140-2 responsibility over the student the information contained in the
140-3 confidential notice, for the same purposes as described by
140-4 Subsection (d) of this article.
140-5 (f) A person who receives information under this article may
140-6 not disclose the information except as specifically authorized by
140-7 this article. A person who intentionally violates this article
140-8 commits an offense. An offense under this subsection is a Class C
140-9 misdemeanor.
140-10 (g) On receipt of a notice under this article, a school
140-11 official may take the precautions necessary to prevent further
140-12 violence in the school, on school property, or at school-sponsored
140-13 or school-related activities on or off school property but may not
140-14 penalize a student solely because a notification is received about
140-15 the student.
140-16 (h) This article applies to:
140-17 (1) an offense listed in Section 8(c), Article 42.18
140-18 of this code; reckless conduct, as described by Section 22.05,
140-19 Penal Code; or a terroristic threat, as described by Section 22.07,
140-20 Penal Code;
140-21 (2) the unlawful use, sale, or possession of a
140-22 controlled substance, drug paraphernalia, or marihuana, as defined
140-23 by Chapter 481, Health and Safety Code;
140-24 (3) the unlawful possession of any of the weapons or
140-25 devices listed in Sections 46.01(1)-(14), Penal Code, or Section
140-26 46.01(16), Penal Code; or a weapon listed as a prohibited weapon
140-27 under Section 46.05, Penal Code; or
141-1 (4) a criminal offense under Section 71.02, Penal
141-2 Code.
141-3 SECTION 37. (a) Chapters 6, 8, 9, 10, and 32A, Code of
141-4 Criminal Procedure, are repealed.
141-5 (b) Articles 4.13, 37.071, 37.0711, 38.33, and 42.16, Code
141-6 of Criminal Procedure, are repealed.
141-7 (c) Section 9, Article 42.12, Code of Criminal Procedure, is
141-8 repealed.
141-9 SECTION 38. This Act takes effect September 1, 1997.
141-10 SECTION 39. The importance of this legislation and the
141-11 crowded condition of the calendars in both houses create an
141-12 emergency and an imperative public necessity that the
141-13 constitutional rule requiring bills to be read on three several
141-14 days in each house be suspended, and this rule is hereby suspended.