CHAPTER 1. GENERAL PROVISIONS - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 1. GENERAL PROVISIONS

Art. 1.01. SHORT TITLE. This Act shall be known, and may be

cited, as the "Code of Criminal Procedure".

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.02. EFFECTIVE DATE. This Code shall take effect and be in

force on and after January 1, 1966. The procedure herein

prescribed shall govern all criminal proceedings instituted after

the effective date of this Act and all proceedings pending upon

the effective date hereof insofar as are applicable.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.03. OBJECTS OF THIS CODE. This Code is intended to

embrace rules applicable to the prevention and prosecution of

offenses against the laws of this State, and to make the rules of

procedure in respect to the prevention and punishment of offenses

intelligible to the officers who are to act under them, and to

all persons whose rights are to be affected by them. It seeks:

1. To adopt measures for preventing the commission of crime;

2. To exclude the offender from all hope of escape;

3. To insure a trial with as little delay as is consistent with

the ends of justice;

4. To bring to the investigation of each offense on the trial all

the evidence tending to produce conviction or acquittal;

5. To insure a fair and impartial trial; and

6. The certain execution of the sentence of the law when

declared.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.04. DUE COURSE OF LAW. No citizen of this State shall be

deprived of life, liberty, property, privileges or immunities, or

in any manner disfranchised, except by the due course of the law

of the land.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.05. RIGHTS OF ACCUSED. In all criminal prosecutions the

accused shall have a speedy public trial by an impartial jury. He

shall have the right to demand the nature and cause of the

accusation against him, and to have a copy thereof. He shall not

be compelled to give evidence against himself. He shall have the

right of being heard by himself, or counsel, or both; shall be

confronted with the witnesses against him, and shall have

compulsory process for obtaining witnesses in his favor. No

person shall be held to answer for a felony unless on indictment

of a grand jury.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL. (a) A defendant

in a criminal matter is entitled to be represented by counsel in

an adversarial judicial proceeding. The right to be represented

by counsel includes the right to consult in private with counsel

sufficiently in advance of a proceeding to allow adequate

preparation for the proceeding.

(b) For the purposes of this article and Articles 26.04 and 26.05

of this code, "indigent" means a person who is not financially

able to employ counsel.

(c) An indigent defendant is entitled to have an attorney

appointed to represent him in any adversary judicial proceeding

that may result in punishment by confinement and in any other

criminal proceeding if the court concludes that the interests of

justice require representation. Except as otherwise provided by

this subsection, if an indigent defendant is entitled to and

requests appointed counsel and if adversarial judicial

proceedings have been initiated against the defendant, a court or

the courts' designee authorized under Article 26.04 to appoint

counsel for indigent defendants in the county shall appoint

counsel as soon as possible, but not later than the end of the

third working day after the date on which the court or the

courts' designee receives the defendant's request for appointment

of counsel. In a county with a population of 250,000 or more, the

court or the courts' designee shall appoint counsel as required

by this subsection as soon as possible, but not later than the

end of the first working day after the date on which the court or

the courts' designee receives the defendant's request for

appointment of counsel.

(d) An eligible indigent defendant is entitled to have the trial

court appoint an attorney to represent him in the following

appellate and postconviction habeas corpus matters:

(1) an appeal to a court of appeals;

(2) an appeal to the Court of Criminal Appeals if the appeal is

made directly from the trial court or if a petition for

discretionary review has been granted;

(3) a habeas corpus proceeding if the court concludes that the

interests of justice require representation; and

(4) any other appellate proceeding if the court concludes that

the interests of justice require representation.

(e) An appointed counsel is entitled to 10 days to prepare for a

proceeding but may waive the preparation time with the consent of

the defendant in writing or on the record in open court. If a

nonindigent defendant appears without counsel at a proceeding

after having been given a reasonable opportunity to retain

counsel, the court, on 10 days' notice to the defendant of a

dispositive setting, may proceed with the matter without securing

a written waiver or appointing counsel. If an indigent defendant

who has refused appointed counsel in order to retain private

counsel appears without counsel after having been given an

opportunity to retain counsel, the court, after giving the

defendant a reasonable opportunity to request appointment of

counsel or, if the defendant elects not to request appointment of

counsel, after obtaining a waiver of the right to counsel

pursuant to Subsections (f) and (g), may proceed with the matter

on 10 days' notice to the defendant of a dispositive setting.

(f) A defendant may voluntarily and intelligently waive in

writing the right to counsel. A waiver obtained in violation of

Subsection (f-1) or (f-2) is presumed invalid.

(f-1) In any adversary judicial proceeding that may result in

punishment by confinement, the attorney representing the state

may not:

(1) initiate or encourage an attempt to obtain from a defendant

who is not represented by counsel a waiver of the right to

counsel; or

(2) communicate with a defendant who has requested the

appointment of counsel, unless the court or the court's designee

authorized under Article 26.04 to appoint counsel for indigent

defendants in the county has denied the request and, subsequent

to the denial, the defendant:

(A) has been given a reasonable opportunity to retain and has

failed to retain private counsel; or

(B) waives or has waived the opportunity to retain private

counsel.

(f-2) In any adversary judicial proceeding that may result in

punishment by confinement, the court may not direct or encourage

the defendant to communicate with the attorney representing the

state until the court advises the defendant of the right to

counsel and the procedure for requesting appointed counsel and

the defendant has been given a reasonable opportunity to request

appointed counsel. If the defendant has requested appointed

counsel, the court may not direct or encourage the defendant to

communicate with the attorney representing the state unless the

court or the court's designee authorized under Article 26.04 to

appoint counsel for indigent defendants in the county has denied

the request and, subsequent to the denial, the defendant:

(1) has been given a reasonable opportunity to retain and has

failed to retain private counsel; or

(2) waives or has waived the opportunity to retain private

counsel.

(g) If a defendant wishes to waive the right to counsel for

purposes of entering a guilty plea or proceeding to trial, the

court shall advise the defendant of the nature of the charges

against the defendant and, if the defendant is proceeding to

trial, the dangers and disadvantages of self-representation. If

the court determines that the waiver is voluntarily and

intelligently made, the court shall provide the defendant with a

statement substantially in the following form, which, if signed

by the defendant, shall be filed with and become part of the

record of the proceedings:

"I have been advised this ______ day of __________, 2 ____, by

the (name of court) Court of my right to representation by

counsel in the case pending against me. I have been further

advised that if I am unable to afford counsel, one will be

appointed for me free of charge. Understanding my right to have

counsel appointed for me free of charge if I am not financially

able to employ counsel, I wish to waive that right and request

the court to proceed with my case without an attorney being

appointed for me. I hereby waive my right to counsel.

(signature of defendant)"

(h) A defendant may withdraw a waiver of the right to counsel at

any time but is not entitled to repeat a proceeding previously

held or waived solely on the grounds of the subsequent

appointment or retention of counsel. If the defendant withdraws a

waiver, the trial court, in its discretion, may provide the

appointed counsel 10 days to prepare.

(i) Except as otherwise provided by this subsection, if an

indigent defendant is entitled to and requests appointed counsel

and if adversarial judicial proceedings have not been initiated

against the defendant, a court or the courts' designee authorized

under Article 26.04 to appoint counsel for indigent defendants in

the county shall appoint counsel immediately following the

expiration of three working days after the date on which the

court or the courts' designee receives the defendant's request

for appointment of counsel. If adversarial judicial proceedings

are initiated against the defendant before the expiration of the

three working days, the court or the courts' designee shall

appoint counsel as provided by Subsection (c). In a county with a

population of 250,000 or more, the court or the courts' designee

shall appoint counsel as required by this subsection immediately

following the expiration of one working day after the date on

which the court or the courts' designee receives the defendant's

request for appointment of counsel. If adversarial judicial

proceedings are initiated against the defendant before the

expiration of the one working day, the court or the courts'

designee shall appoint counsel as provided by Subsection (c).

(j) Notwithstanding any other provision of this section, if an

indigent defendant is released from custody prior to the

appointment of counsel under this section, appointment of counsel

is not required until the defendant's first court appearance or

when adversarial judicial proceedings are initiated, whichever

comes first.

(k) A court or the courts' designee may without unnecessary delay

appoint new counsel to represent an indigent defendant for whom

counsel is appointed under Subsection (c) or (i) if:

(1) the defendant is subsequently charged in the case with an

offense different from the offense with which the defendant was

initially charged; and

(2) good cause to appoint new counsel is stated on the record as

required by Article 26.04(j)(2).

Added by Acts 1987, 70th Leg., ch. 979, Sec. 1, eff. Sept. 1,

1987. Subsec. (c) amended by and Subsecs. (i) to (k) added by

Acts 2001, 77th Leg., ch. 906, Sec. 2, eff. Jan. 1, 2002.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

463, Sec. 1, eff. September 1, 2007.

Art. 1.052. SIGNED PLEADINGS OF DEFENDANT. (a) A pleading,

motion, and other paper filed for or on behalf of a defendant

represented by an attorney must be signed by at least one

attorney of record in the attorney's name and state the

attorney's address. A defendant who is not represented by an

attorney must sign any pleading, motion, or other paper filed for

or on the defendant's behalf and state the defendant's address.

(b) The signature of an attorney or a defendant constitutes a

certificate by the attorney or defendant that the person has read

the pleading, motion, or other paper and that to the best of the

person's knowledge, information, and belief formed after

reasonable inquiry that the instrument is not groundless and

brought in bad faith or groundless and brought for harassment,

unnecessary delay, or other improper purpose.

(c) If a pleading, motion, or other paper is not signed, the

court shall strike it unless it is signed promptly after the

omission is called to the attention of the attorney or defendant.

(d) An attorney or defendant who files a fictitious pleading in a

cause for an improper purpose described by Subsection (b) or who

makes a statement in a pleading that the attorney or defendant

knows to be groundless and false to obtain a delay of the trial

of the cause or for the purpose of harassment shall be held

guilty of contempt.

(e) If a pleading, motion, or other paper is signed in violation

of this article, the court, on motion or on its own initiative,

after notice and hearing, shall impose an appropriate sanction,

which may include an order to pay to the other party or parties

to the prosecution or to the general fund of the county in which

the pleading, motion, or other paper was filed the amount of

reasonable expenses incurred because of the filing of the

pleading, motion, or other paper, including reasonable attorney's

fees.

(f) A court shall presume that a pleading, motion, or other paper

is filed in good faith. Sanctions under this article may not be

imposed except for good cause stated in the sanction order.

(g) A plea of "not guilty" or "no contest" or "nolo contendere"

does not constitute a violation of this article. An allegation

that an event took place or occurred on or about a particular

date does not constitute a violation of this article.

(h) In this article, "groundless" means without basis in law or

fact and not warranted by a good faith argument for the

extension, modification, or reversal of existing law.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 11, eff. May 21,

1997.

Art. 1.06. SEARCHES AND SEIZURES. The people shall be secure in

their persons, houses, papers and possessions from all

unreasonable seizures or searches. No warrant to search any place

or to seize any person or thing shall issue without describing

them as near as may be, nor without probable cause supported by

oath or affirmation.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.07. RIGHT TO BAIL. All prisoners shall be bailable unless

for capital offenses when the proof is evident. This provision

shall not be so construed as to prevent bail after indictment

found upon examination of the evidence, in such manner as may be

prescribed by law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.08. HABEAS CORPUS. The writ of habeas corpus is a writ of

right and shall never be suspended.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.09. CRUELTY FORBIDDEN. Excessive bail shall not be

required, nor excessive fines imposed, nor cruel or unusual

punishment inflicted.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.10. JEOPARDY. No person for the same offense shall be

twice put in jeopardy of life or liberty; nor shall a person be

again put upon trial for the same offense, after a verdict of not

guilty in a court of competent jurisdiction.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.11. ACQUITTAL A BAR. An acquittal of the defendant

exempts him from a second trial or a second prosecution for the

same offense, however irregular the proceedings may have been;

but if the defendant shall have been acquitted upon trial in a

court having no jurisdiction of the offense, he may be prosecuted

again in a court having jurisdiction.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.12. RIGHT TO JURY. The right of trial by jury shall

remain inviolate.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.13. WAIVER OF TRIAL BY JURY. (a) The defendant in a

criminal prosecution for any offense other than a capital felony

case in which the State notifies the court and the defendant that

it will seek the death penalty shall have the right, upon

entering a plea, to waive the right of trial by jury,

conditioned, however, that such waiver must be made in person by

the defendant in writing in open court with the consent and

approval of the court, and the attorney representing the State.

The consent and approval by the court shall be entered of record

on the minutes of the court, and the consent and approval of the

attorney representing the State shall be in writing, signed by

him, and filed in the papers of the cause before the defendant

enters his plea.

(b) In a capital felony case in which the attorney representing

the State notifies the court and the defendant that it will not

seek the death penalty, the defendant may waive the right to

trial by jury but only if the attorney representing the State, in

writing and in open court, consents to the waiver.

(c) A defendant may agree to waive a jury trial regardless of

whether the defendant is represented by an attorney at the time

of making the waiver, but before a defendant charged with a

felony who has no attorney can agree to waive the jury, the court

must appoint an attorney to represent him.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Amended by Acts 1991, 72nd Leg., ch. 652, Sec. 1, eff. Sept. 1,

1991; Subsec. (c) amended by Acts 1997, 75th Leg., ch. 285, Sec.

1, eff. Sept. 1, 1997.

Art. 1.14. WAIVER OF RIGHTS. (a) The defendant in a criminal

prosecution for any offense may waive any rights secured him by

law except that a defendant in a capital felony case may waive

the right of trial by jury only in the manner permitted by

Article 1.13(b) of this code.

(b) If the defendant does not object to a defect, error, or

irregularity of form or substance in an indictment or information

before the date on which the trial on the merits commences, he

waives and forfeits the right to object to the defect, error, or

irregularity and he may not raise the objection on appeal or in

any other postconviction proceeding. Nothing in this article

prohibits a trial court from requiring that an objection to an

indictment or information be made at an earlier time in

compliance with Article 28.01 of this code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1967, 60th Leg., p. 1733, ch. 659, Sec. 1, eff. Aug. 28, 1967;

Acts 1973, 63rd Leg., p. 1127, ch. 426, art. 3, Sec. 5, eff. June

14, 1973.

Amended by Acts 1985, 69th Leg., ch. 577, Sec. 1, eff. Dec. 1,

1985; Acts 1991, 72nd Leg., ch. 652, Sec. 2, eff. Sept. 1, 1991.

Art. 1.141. WAIVER OF INDICTMENT FOR NONCAPITAL FELONY. A person

represented by legal counsel may in open court or by written

instrument voluntarily waive the right to be accused by

indictment of any offense other than a capital felony. On waiver

as provided in this article, the accused shall be charged by

information.

Added by Acts 1971, 62nd Leg., p. 1148, ch. 260, Sec. 1, eff. May

19, 1971.

Art. 1.15. JURY IN FELONY. No person can be convicted of a

felony except upon the verdict of a jury duly rendered and

recorded, unless the defendant, upon entering a plea, has in open

court in person waived his right of trial by jury in writing in

accordance with Articles 1.13 and 1.14; provided, however, that

it shall be necessary for the state to introduce evidence into

the record showing the guilt of the defendant and said evidence

shall be accepted by the court as the basis for its judgment and

in no event shall a person charged be convicted upon his plea

without sufficient evidence to support the same. The evidence may

be stipulated if the defendant in such case consents in writing,

in open court, to waive the appearance, confrontation, and

cross-examination of witnesses, and further consents either to an

oral stipulation of the evidence and testimony or to the

introduction of testimony by affidavits, written statements of

witnesses, and any other documentary evidence in support of the

judgment of the court. Such waiver and consent must be approved

by the court in writing, and be filed in the file of the papers

of the cause.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1967, 60th Leg., p. 1733, ch. 659, Sec. 2, eff. Aug. 28, 1967;

Acts 1971, 62nd Leg., p. 3028, ch. 996, Sec. 1, eff. June 15,

1971; Acts 1973, 63rd Leg., p. 1127, ch. 426, art. 3, Sec. 5,

eff. June 14, 1973.

Amended by Acts 1991, 72nd Leg., ch. 652, Sec. 3, eff. Sept. 1,

1991.

Art. 1.16. LIBERTY OF SPEECH AND PRESS. Every person shall be at

liberty to speak, write or publish his opinion on any subject,

being liable for the abuse of that privilege; and no law shall

ever be passed curtailing the liberty of speech or of the press.

In prosecutions for the publication of papers investigating the

conduct of officers or men in public capacity, or when the matter

published is proper for public information, the truth thereof may

be given in evidence. In all indictments for libels, the jury

shall have the right to determine the law and the facts, under

the direction of the court, as in other cases.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.17. RELIGIOUS BELIEF. No person shall be disqualified to

give evidence in any court of this State on account of his

religious opinions, or for the want of any religious belief; but

all oaths or affirmations shall be administered in the mode most

binding upon the conscience, and shall be taken subject to the

pains and penalties of perjury.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.18. OUTLAWRY AND TRANSPORTATION. No citizen shall be

outlawed, nor shall any person be transported out of the State

for any offense committed within the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.19. CORRUPTION OF BLOOD, ETC. No conviction shall work

corruption of blood or forfeiture of estate.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.20. CONVICTION OF TREASON. No person shall be convicted

of treason except on the testimony of two witnesses to the same

overt act, or on confession in open court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.21. PRIVILEGE OF LEGISLATORS. Senators and

Representatives shall, except in cases of treason, felony or

breach of the peace, be privileged from arrest during the session

of the Legislature, and in going to and returning from the same,

allowing one day for every twenty miles such member may reside

from the place at which the Legislature is convened.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.23. DIGNITY OF STATE. All justices of the Supreme Court,

judges of the Court of Criminal Appeals, justices of the Courts

of Appeals and judges of the District Courts, shall, by virtue of

their offices, be conservators of the peace throughout the State.

The style of all writs and process shall be "The State of Texas".

All prosecutions shall be carried on "in the name and by

authority of The State of Texas", and conclude, "against the

peace and dignity of the State".

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Amended by Acts 1981, 67th Leg., p. 801, ch. 291, Sec. 97, eff.

Sept. 1, 1981.

Art. 1.24. PUBLIC TRIAL. The proceedings and trials in all

courts shall be public.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.25. CONFRONTED BY WITNESSES. The defendant, upon a trial,

shall be confronted with the witnesses, except in certain cases

provided for in this Code where depositions have been taken.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.26. CONSTRUCTION OF THIS CODE. The provisions of this

Code shall be liberally construed, so as to attain the objects

intended by the Legislature: The prevention, suppression and

punishment of crime.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 1.27. COMMON LAW GOVERNS. If this Code fails to provide a

rule of procedure in any particular state of case which may

arise, the rules of the common law shall be applied and govern.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.