CHAPTER 16. THE COMMITMENT OR DISCHARGE OF THE ACCUSED - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 16. THE COMMITMENT OR DISCHARGE OF THE ACCUSED

Art. 16.01. EXAMINING TRIAL. When the accused has been brought

before a magistrate for an examining trial that officer shall

proceed to examine into the truth of the accusation made,

allowing the accused, however, sufficient time to procure

counsel. In a proper case, the magistrate may appoint counsel to

represent an accused in such examining trial only, to be

compensated as otherwise provided in this Code. The accused in

any felony case shall have the right to an examining trial before

indictment in the county having jurisdiction of the offense,

whether he be in custody or on bail, at which time the magistrate

at the hearing shall determine the amount or sufficiency of bail,

if a bailable case. If the accused has been transferred for

criminal prosecution after a hearing under Section 54.02, Family

Code, the accused may be granted an examining trial at the

discretion of the court.

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

Amended by Acts 1987, 70th Leg., ch. 140, Sec. 4, eff. Sept. 1,

1987.

Art. 16.02. EXAMINATION POSTPONED. The magistrate may at the

request of either party postpone the examination to procure

testimony; but the accused shall in the meanwhile be detained in

custody unless he give bail to be present from day to day before

the magistrate until the examination is concluded, which he may

do in all cases except murder and treason.

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

Art. 16.03. WARNING TO ACCUSED. Before the examination of the

witnesses, the magistrate shall inform the accused that it is his

right to make a statement relative to the accusation brought

against him, but at the same time shall also inform him that he

cannot be compelled to make any statement whatever, and that if

he does make such statement, it may be used in evidence against

him.

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

Art. 16.04. VOLUNTARY STATEMENT. If the accused desires to make

a voluntary statement, he may do so before the examination of any

witness, but not afterward. His statement shall be reduced to

writing by or under the direction of the magistrate, or by the

accused or his counsel, and shall be signed by the accused by

affixing his name or mark, but shall not be sworn to by him. The

magistrate shall attest by his own certificate and signature to

the execution and signing of the statement.

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

Art. 16.06. COUNSEL MAY EXAMINE WITNESS. The counsel for the

State, and the accused or his counsel may question the witnesses

on direct or cross examination. If no counsel appears for the

State the magistrate may examine the witnesses.

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

Art. 16.07. SAME RULES OF EVIDENCE AS ON FINAL TRIAL. The same

rules of evidence shall apply to and govern a trial before an

examining court that apply to and govern a final trial.

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

Art. 16.08. PRESENCE OF THE ACCUSED. The examination of each

witness shall be in the presence of the accused.

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

Art. 16.09. TESTIMONY REDUCED TO WRITING. The testimony of each

witness shall be reduced to writing by or under the direction of

the magistrate, and shall then be read over to the witness, or he

may read it over himself. Such corrections shall be made in the

same as the witness may direct; and he shall then sign the same

by affixing thereto his name or mark. All the testimony thus

taken shall be certified to by the magistrate. In lieu of the

above provision, a statement of facts authenticated by State and

defense counsel and approved by the presiding magistrate may be

used to preserve the testimony of witnesses.

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

Art. 16.10. ATTACHMENT FOR WITNESS. The magistrate has the power

in all cases, where a witness resides or is in the county where

the prosecution is pending, to issue an attachment for the

purpose of enforcing the attendance of such witness; this he may

do without having previously issued a subpoena for that purpose.

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

Art. 16.11. ATTACHMENT TO ANOTHER COUNTY. The magistrate may

issue an attachment for a witness to any county in the State,

when affidavit is made by the party applying therefor that the

testimony of the witness is material to the prosecution, or the

defense, as the case may be; and the affidavit shall further

state the facts which it is expected will be proved by the

witness; and if the facts set forth are not considered material

by the magistrate, or if they be admitted to be true by the

adverse party, the attachment shall not issue.

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

Art. 16.12. WITNESS NEED NOT BE TENDERED HIS WITNESS FEES OR

EXPENSES. A witness attached need not be tendered his witness

fees or expenses.

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

Art. 16.13. ATTACHMENT EXECUTED FORTHWITH. The officer receiving

the attachment shall execute it forthwith by bringing before the

magistrate the witness named therein, unless such witness shall

give bail for his appearance before the magistrate at the time

and place required by the writ.

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

Art. 16.14. POSTPONING EXAMINATION. After examining the witness

in attendance, if it appear to the magistrate that there is other

important testimony which may be had by a postponement, he shall,

at the request of the prosecutor or of the defendant, postpone

the hearing for a reasonable time to enable such testimony to be

procured; but in such case the accused shall remain in the

custody of the proper officer until the day fixed for such

further examination. No postponement shall take place, unless a

sworn statement be made by the defendant, or the prosecutor,

setting forth the name and residence of the witness, and the

facts which it is expected will be proved. If it be testimony

other than that of a witness, the statement made shall set forth

the nature of the evidence. If the magistrate is satisfied that

the testimony is not material, or if the same be admitted to be

true by the adverse party, the postponement shall be refused.

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

Art. 16.15. WHO MAY DISCHARGE CAPITAL OFFENSE. The examination

of one accused of a capital offense shall be conducted by a

justice of the peace, county judge, county court at law, or

county criminal court. The judge may admit to bail, except in

capital cases where the proof is evident.

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

Art. 16.16. IF INSUFFICIENT BAIL HAS BEEN TAKEN. Where it is

made to appear by affidavit to a judge of the Court of Criminal

Appeals, a justice of a court of appeals, or to a judge of the

district or county court, that the bail taken in any case is

insufficient in amount, or that the sureties are not good for the

amount, or that the bond is for any reason defective or

insufficient, such judge shall issue a warrant of arrest, and

require of the defendant sufficient bond and security, according

to the nature of the case.

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

Amended by Acts 1981, 67th Leg., p. 802, ch. 291, Sec. 104, eff.

Sept. 1, 1981.

Art. 16.17. DECISION OF JUDGE. After the examining trial has

been had, the judge shall make an order committing the defendant

to the jail of the proper county, discharging him or admitting

him to bail, as the law and facts of the case may require.

Failure of the judge to make or enter an order within 48 hours

after the examining trial has been completed operates as a

finding of no probable cause and the accused shall be discharged.

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

Art. 16.18. WHEN NO SAFE JAIL. If there is no safe jail in the

county in which the prosecution is carried on, the magistrate may

commit defendant to the nearest safe jail in any other county.

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

Art. 16.19. WARRANT IN SUCH CASE. The commitment in the case

mentioned in the preceding Article shall be directed to the

sheriff of the county to which the defendant is sent, but the

sheriff of the county from which the defendant is taken shall be

required to deliver the prisoner into the hands of the sheriff to

whom he is sent.

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

Art. 16.20. "COMMITMENT". A "commitment" is an order signed by

the proper magistrate directing a sheriff to receive and place in

jail the person so committed. It will be sufficient if it have

the following requisites:

1. That it run in the name of "The State of Texas";

2. That it be addressed to the sheriff of the county to the jail

of which the defendant is committed;

3. That it state in plain language the offense for which the

defendant is committed, and give his name, if it be known, or if

unknown, contain an accurate description of the defendant;

4. That it state to what court and at what time the defendant is

to be held to answer;

5. When the prisoner is sent out of the county where the

prosecution arose, the warrant of commitment shall state that

there is no safe jail in the proper county; and

6. If bail has been granted, the amount of bail shall be stated

in the warrant of commitment.

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

Art. 16.21. DUTY OF SHERIFF AS TO PRISONERS. Every sheriff shall

keep safely a person committed to his custody. He shall use no

cruel or unusual means to secure this end, but shall adopt all

necessary measures to prevent the escape of a prisoner. He may

summon a guard of sufficient number, in case it becomes necessary

to prevent an escape from jail, or the rescue of a prisoner.

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

Art. 16.22. EARLY IDENTIFICATION OF DEFENDANT SUSPECTED OF

HAVING MENTAL ILLNESS OR MENTAL RETARDATION. (a)(1) Not later

than 72 hours after receiving credible information that may

establish reasonable cause to believe that a defendant committed

to the sheriff's custody has a mental illness or is a person with

mental retardation, including observation of the defendant's

behavior immediately before, during, and after the defendant's

arrest and the results of any previous assessment of the

defendant, the sheriff shall provide written or electronic notice

of the information to the magistrate. On a determination that

there is reasonable cause to believe that the defendant has a

mental illness or is a person with mental retardation, the

magistrate, except as provided by Subdivision (2), shall order

the local mental health or mental retardation authority or

another qualified mental health or mental retardation expert to:

(A) collect information regarding whether the defendant has a

mental illness as defined by Section 571.003, Health and Safety

Code, or is a person with mental retardation as defined by

Section 591.003, Health and Safety Code, including information

obtained from any previous assessment of the defendant; and

(B) provide to the magistrate a written assessment of the

information collected under Paragraph (A).

(2) The magistrate is not required to order the collection of

information under Subdivision (1) if the defendant in the year

preceding the defendant's applicable date of arrest has been

determined to have a mental illness or to be a person with mental

retardation by the local mental health or mental retardation

authority or another mental health or mental retardation expert

described by Subdivision (1). A court that elects to use the

results of that previous determination may proceed under

Subsection (c).

(3) If the defendant fails or refuses to submit to the

collection of information regarding the defendant as required

under Subdivision (1), the magistrate may order the defendant to

submit to an examination in a mental health facility determined

to be appropriate by the local mental health or mental

retardation authority for a reasonable period not to exceed 21

days. The magistrate may order a defendant to a facility

operated by the Department of State Health Services or the

Department of Aging and Disability Services for examination only

on request of the local mental health or mental retardation

authority and with the consent of the head of the facility. If a

defendant who has been ordered to a facility operated by the

Department of State Health Services or the Department of Aging

and Disability Services for examination remains in the facility

for a period exceeding 21 days, the head of that facility shall

cause the defendant to be immediately transported to the

committing court and placed in the custody of the sheriff of the

county in which the committing court is located. That county

shall reimburse the facility for the mileage and per diem

expenses of the personnel required to transport the defendant

calculated in accordance with the state travel regulations in

effect at the time.

(b) A written assessment of the information collected under

Subsection (a)(1)(A) shall be provided to the magistrate not

later than the 30th day after the date of any order issued under

Subsection (a) in a felony case and not later than the 10th day

after the date of any order issued under that subsection in a

misdemeanor case, and the magistrate shall provide copies of the

written assessment to the defense counsel, the prosecuting

attorney, and the trial court. The written assessment must

include a description of the procedures used in the collection of

information under Subsection (a)(1)(A) and the applicable

expert's observations and findings pertaining to:

(1) whether the defendant is a person who has a mental illness

or is a person with mental retardation;

(2) whether there is clinical evidence to support a belief that

the defendant may be incompetent to stand trial and should

undergo a complete competency examination under Subchapter B,

Chapter 46B; and

(3) recommended treatment.

(c) After the trial court receives the applicable expert's

written assessment relating to the defendant under Subsection (b)

or elects to use the results of a previous determination as

described by Subsection (a)(2), the trial court may, as

applicable:

(1) resume criminal proceedings against the defendant, including

any appropriate proceedings related to the defendant's release on

personal bond under Article 17.032;

(2) resume or initiate competency proceedings, if required, as

provided by Chapter 46B or other proceedings affecting the

defendant's receipt of appropriate court-ordered mental health or

mental retardation services, including proceedings related to the

defendant's receipt of outpatient mental health services under

Section 574.034, Health and Safety Code; or

(3) consider the written assessment during the punishment phase

after a conviction of the offense for which the defendant was

arrested, as part of a presentence investigation report, or in

connection with the impositions of conditions following placement

on community supervision, including deferred adjudication

community supervision.

(d) This article does not prevent the applicable court from,

before, during, or after the collection of information regarding

the defendant as described by this article:

(1) releasing a mentally ill or mentally retarded defendant from

custody on personal or surety bond; or

(2) ordering an examination regarding the defendant's competency

to stand trial.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 3.05, eff. Sept. 1,

1994. Amended by Acts 1997, 75th Leg., ch. 312, Sec. 1, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 828, Sec. 1, eff. Sept.

1, 2001; Subsec. (b) amended by Acts 2003, 78th Leg., ch. 35,

Sec. 2, eff. Jan. 1, 2004; Subsec. (c)(2) amended by Acts 2003,

78th Leg., ch. 35, Sec. 2, eff. Jan. 1, 2004.

Amended by:

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

1307, Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

1228, Sec. 1, eff. September 1, 2009.