CHAPTER 23. THE CAPIAS - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 23. THE CAPIAS

Art. 23.01. DEFINITION OF A "CAPIAS". In this chapter, a

"capias" is a writ that is:

(1) issued by a judge of the court having jurisdiction of a case

after commitment or bail and before trial, or by a clerk at the

direction of the judge; and

(2) directed "To any peace officer of the State of Texas",

commanding the officer to arrest a person accused of an offense

and bring the arrested person before that court immediately or on

a day or at a term stated in the writ.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by:

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

1263, Sec. 3, eff. September 1, 2007.

Art. 23.02. ITS REQUISITES. A capias shall be held sufficient if

it have the following requisites:

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

2. That it name the person whose arrest is ordered, or if

unknown, describe him;

3. That it specify the offense of which the defendant is accused,

and it appear thereby that he is accused of some offense against

the penal laws of the State;

4. That it name the court to which and the time when it is

returnable; and

5. That it be dated and attested officially by the authority

issuing the same.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.03. CAPIAS OR SUMMONS IN FELONY. (a) A capias shall be

issued by the district clerk upon each indictment for felony

presented, after bail has been set or denied by the judge of the

court. Upon the request of the attorney representing the State, a

summons shall be issued by the district clerk. The capias or

summons shall be delivered by the clerk or mailed to the sheriff

of the county where the defendant resides or is to be found. A

capias or summons need not issue for a defendant in custody or

under bond.

(b) Upon the request of the attorney representing the State a

summons instead of a capias shall issue. If a defendant fails to

appear in response to the summons a capias shall issue.

(c) Summons. The summons shall be in the same form as the capias

except that it shall summon the defendant to appear before the

proper court at a stated time and place. The summons shall be

served upon a defendant by delivering a copy to him personally,

or by leaving it at his dwelling house or usual place of abode

with some person of suitable age and discretion then residing

therein or by mailing it to the defendant's last known address.

(d) A summons issued to any person must clearly and prominently

state in English and in Spanish the following:

"It is an offense for a person to intentionally influence or

coerce a witness to testify falsely or to elude legal process. It

is also a felony offense to harm or threaten to harm a witness or

prospective witness in retaliation for or on account of the

service of the person as a witness or to prevent or delay the

person's service as a witness to a crime."

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1979, 66th Leg., p. 1034, ch. 463, Sec. 3, eff.

June 7, 1979.

Amended by Acts 1995, 74th Leg., ch. 67, Sec. 1, eff. Sept. 1,

1995.

Art. 23.031. ISSUANCE OF CAPIAS IN ELECTRONIC FORM. A district

clerk, county clerk, or court may issue in electronic form a

capias for the failure of a person to appear before a court or

comply with a court order.

Added by Acts 2005, 79th Leg., Ch.

312, Sec. 4, eff. June 17, 2005.

Amended by:

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

1263, Sec. 4, eff. September 1, 2007.

Art. 23.04. IN MISDEMEANOR CASE. In misdemeanor cases, the

capias or summons shall issue from a court having jurisdiction of

the case on the filing of an information or complaint. The

summons shall be issued only upon request of the attorney

representing the State and on the determination of probable cause

by the judge, and shall follow the same form and procedure as in

a felony case.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by:

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

1263, Sec. 5, eff. September 1, 2007.

Art. 23.05. CAPIAS AFTER SURRENDER OR FORFEITURE. (a) If a

forfeiture of bail is declared by a court or a surety surrenders

a defendant under Article 17.19, a capias shall be immediately

issued for the arrest of the defendant, and when arrested, in its

discretion, the court may require the defendant, in order to be

released from custody, to deposit with the custodian of funds of

the court in which the prosecution is pending current money of

the United States in the amount of the new bond as set by the

court, in lieu of a surety bond, unless a forfeiture is taken and

set aside under the third subdivision of Article 22.13, in which

case the defendant and the defendant's sureties shall remain

bound under the same bail.

(b) A capias issued under this article may be executed by a peace

officer or by a private investigator licensed under Chapter 1702,

Occupations Code.

(c) A capias under this article must be issued not later than the

10th business day after the date of the court's issuance of the

order of forfeiture or order permitting surrender of the bond.

(d) The sheriff of each county shall enter a capias issued under

this article into a local warrant system not later than the 10th

business day after the date of issuance of the capias by the

clerk of court.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1971, 62nd Leg., p. 2383, ch. 740, Sec. 1, eff.

Aug. 30, 1971.

Amended by Acts 1999, 76th Leg., ch. 1506, Sec. 7, eff. Sept. 1,

1999; Subsec. (b) amended by Acts 2001, 77th Leg., ch. 1420, Sec.

14.733, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 942, Sec.

5, eff. June 20, 2003.

Amended by:

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

1263, Sec. 6, eff. September 1, 2007.

Art. 23.06. NEW BAIL IN FELONY CASE. When a defendant who has

been arrested for a felony under a capias has previously given

bail to answer said charge, his sureties, if any, shall be

released by such arrest, and he shall be required to give new

bail.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.07. CAPIAS DOES NOT LOSE ITS FORCE. A capias shall not

lose its force if not executed and returned at the time fixed in

the writ, but may be executed at any time afterward, and return

made. All proceedings under such capias shall be as valid as if

the same had been executed and returned within the time specified

in the writ.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.08. REASONS FOR RETAINING CAPIAS. When the capias is not

returned at the time fixed in the writ, the officer holding it

shall notify the court from whence it was issued, in writing, of

his reasons for retaining it.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.09. CAPIAS TO SEVERAL COUNTIES. Capiases for a defendant

may be issued to as many counties as the district or county

attorney may direct.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.10. BAIL IN FELONY. In cases of arrest for felony in the

county where the prosecution is pending, during a term of court,

the officer making the arrest may take bail as provided in

Article 17.21.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.11. SHERIFF MAY TAKE BAIL IN FELONY. In cases of arrest

for felony less than capital, made during vacation or made in

another county than the one in which the prosecution is pending,

the sheriff may take bail; in such cases the amount of the bail

bond shall be the same as is endorsed upon the capias; and if no

amount be endorsed on the capias, the sheriff shall require a

reasonable amount of bail. If it be made to appear by affidavit,

made by any district attorney, county attorney, or the sheriff

approving the bail bond, 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 after

indictment 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, according to

the nature of the case.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1981, 67th Leg., p. 803, ch. 291, Sec. 105, eff.

Sept. 1, 1981.

Art. 23.12. COURT SHALL FIX BAIL IN FELONY. In felony cases

which are bailable, the court shall, before adjourning, fix and

enter upon the minutes the amount of the bail to be required in

each case. The clerk shall endorse upon the capias the amount of

bail required. In case of neglect to so comply with this Article,

the arrest of the defendant, and the bail taken by the sheriff,

shall be as legal as if there had been no such omission.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.13. WHO MAY ARREST UNDER CAPIAS. A capias may be

executed by any peace officer. In felony cases, the defendant

must be delivered immediately to the sheriff of the county where

the arrest is made together, with the writ under which he was

taken.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.14. BAIL IN MISDEMEANOR. Any officer making an arrest

under a capias in a misdemeanor may in term time or vacation take

a bail bond of the defendant.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.15. ARREST IN CAPITAL CASES. Where an arrest is made

under a capias in a capital case, the sheriff shall confine the

defendant in jail, and the capias shall, for that purpose, be a

sufficient commitment. This Article is applicable when the arrest

is made in the county where the prosecution is pending.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.16. ARREST IN CAPITAL CASE IN ANOTHER COUNTY. In each

capital case where a defendant is arrested under a capias in a

county other than that in which the case is pending, the sheriff

who arrests or to whom the defendant is delivered, shall convey

him immediately to the county from which the capias issued and

deliver him to the sheriff of such county.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.17. RETURN OF BAIL AND CAPIAS. When an arrest has been

made and a bail taken, such bond, together with the capias, shall

be returned forthwith to the proper court.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 23.18. RETURN OF CAPIAS. The return of the capias shall be

made to the court from which it is issued. If it has been

executed, the return shall state what disposition has been made

of the defendant. If it has not been executed, the cause of the

failure to execute it shall be fully stated. If the defendant has

not been found, the return shall further show what efforts have

been made by the officer to find him, and what information he has

as to the defendant's whereabouts.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.