CHAPTER 27. THE PLEADING IN CRIMINAL ACTIONS - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 27. THE PLEADING IN CRIMINAL ACTIONS

Art. 27.01. INDICTMENT OR INFORMATION. The primary pleading in a

criminal action on the part of the State is the indictment or

information.

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

Art. 27.02. DEFENDANT'S PLEADINGS. The pleadings and motions of

the defendant shall be:

(1) A motion to set aside or an exception to an indictment or

information for some matter of form or substance;

(2) A special plea as provided in Article 27.05 of this code;

(3) A plea of guilty;

(4) A plea of not guilty;

(5) A plea of nolo contendere, the legal effect of which shall be

the same as that of a plea of guilty, except that such plea may

not be used against the defendant as an admission in any civil

suit based upon or growing out of the act upon which the criminal

prosecution is based;

(6) An application for probation, if any;

(7) An election, if any, to have the jury assess the punishment

if he is found guilty; and

(8) Any other motions or pleadings that are by law permitted to

be filed.

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

Amended by Acts 1967, 60th Leg., p. 1738, ch. 659, Sec. 17, eff.

Aug. 28, 1967; Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A),

eff. Jan. 1, 1974.

Art. 27.03. MOTION TO SET ASIDE INDICTMENT. In addition to any

other grounds authorized by law, a motion to set aside an

indictment or information may be based on the following:

1. That it appears by the records of the court that the

indictment was not found by at least nine grand jurors, or that

the information was not based upon a valid complaint;

2. That some person not authorized by law was present when the

grand jury was deliberating upon the accusation against the

defendant, or was voting upon the same; and

3. That the grand jury was illegally impaneled; provided,

however, in order to raise such question on motion to set aside

the indictment, the defendant must show that he did not have an

opportunity to challenge the array at the time the grand jury was

impaneled.

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

Art. 27.04. MOTION TRIED BY JUDGE. An issue of fact arising upon

a motion to set aside an indictment or information shall be tried

by the judge without a jury.

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

Art. 27.05. DEFENDANT'S SPECIAL PLEA. A defendant's only special

plea is that he has already been prosecuted for the same or a

different offense arising out of the same criminal episode that

was or should have been consolidated into one trial, and that the

former prosecution:

(1) resulted in acquittal;

(2) resulted in conviction;

(3) was improperly terminated; or

(4) was terminated by a final order or judgment for the defendant

that has not been reversed, set aside, or vacated and that

necessarily required a determination inconsistent with a fact

that must be established to secure conviction in the subsequent

prosecution.

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

Amended by Acts 1973, 63rd Leg., p. 969, ch. 399, Sec. 2(A), eff.

Jan. 1, 1974.

Art. 27.06. SPECIAL PLEA VERIFIED. Every special plea shall be

verified by the affidavit of the defendant.

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

Art. 27.07. SPECIAL PLEA TRIED. All issues of fact presented by

a special plea shall be tried by the trier of the facts on the

trial on the merits.

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

Art. 27.08. EXCEPTION TO SUBSTANCE OF INDICTMENT. There is no

exception to the substance of an indictment or information

except:

1. That it does not appear therefrom that an offense against the

law was committed by the defendant;

2. That it appears from the face thereof that a prosecution for

the offense is barred by a lapse of time, or that the offense was

committed after the finding of the indictment;

3. That it contains matter which is a legal defense or bar to the

prosecution; and

4. That it shows upon its face that the court trying the case has

no jurisdiction thereof.

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

Art. 27.09. EXCEPTION TO FORM OF INDICTMENT. Exceptions to the

form of an indictment or information may be taken for the

following causes only:

1. That it does not appear to have been presented in the proper

court as required by law;

2. The want of any requisite prescribed by Articles 21.02 and

21.21.

3. That it was not returned by a lawfully chosen or empaneled

grand jury.

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

Art. 27.10. WRITTEN PLEADINGS. All motions to set aside an

indictment or information and all special pleas and exceptions

shall be in writing.

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

Art. 27.11. TEN DAYS ALLOWED FOR FILING PLEADINGS. In all cases

the defendant shall be allowed ten entire days, exclusive of all

fractions of a day after his arrest, and during the term of the

court, to file written pleadings.

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

Art. 27.12. TIME AFTER SERVICE. In cases where the defendant is

entitled to be served with a copy of the indictment, he shall be

allowed the ten days time mentioned in the preceding Article to

file written pleadings after such service.

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

Art. 27.13. PLEA OF GUILTY OR NOLO CONTENDERE IN FELONY. A plea

of "guilty" or a plea of "nolo contendere" in a felony case must

be made in open court by the defendant in person; and the

proceedings shall be as provided in Articles 26.13, 26.14 and

27.02. If the plea is before the judge alone, same may be made in

the same manner as is provided for by Articles 1.13 and 1.15.

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

Art. 27.14. PLEA OF GUILTY OR NOLO CONTENDERE IN MISDEMEANOR.

(a) A plea of "guilty" or a plea of "nolo contendere" in a

misdemeanor case may be made either by the defendant or his

counsel in open court; in such case, the defendant or his counsel

may waive a jury, and the punishment may be assessed by the court

either upon or without evidence, at the discretion of the court.

(b) A defendant charged with a misdemeanor for which the maximum

possible punishment is by fine only may, in lieu of the method

provided in Subsection (a) of this article, mail or deliver in

person to the court a plea of "guilty" or a plea of "nolo

contendere" and a waiver of jury trial. The defendant may also

request in writing that the court notify the defendant, at the

address stated in the request, of the amount of an appeal bond

that the court will approve. If the court receives a plea and

waiver before the time the defendant is scheduled to appear in

court, the court shall dispose of the case without requiring a

court appearance by the defendant. If the court receives a plea

and waiver after the time the defendant is scheduled to appear in

court but at least five business days before a scheduled trial

date, the court shall dispose of the case without requiring a

court appearance by the defendant. The court shall notify the

defendant either in person or by certified mail, return receipt

requested, of the amount of any fine assessed in the case and, if

requested by the defendant, the amount of an appeal bond that the

court will approve. The defendant shall pay any fine assessed or

give an appeal bond in the amount stated in the notice before the

31st day after receiving the notice.

(c) In a misdemeanor case for which the maximum possible

punishment is by fine only, payment of a fine or an amount

accepted by the court constitutes a finding of guilty in open

court as though a plea of nolo contendere had been entered by the

defendant and constitutes a waiver of a jury trial in writing.

(d) If written notice of an offense for which maximum possible

punishment is by fine only or of a violation relating to the

manner, time, and place of parking has been prepared, delivered,

and filed with the court and a legible duplicate copy has been

given to the defendant, the written notice serves as a complaint

to which the defendant may plead "guilty," "not guilty," or "nolo

contendere." If the defendant pleads "not guilty" to the offense

or fails to appear based on the written notice, a complaint shall

be filed that conforms to the requirements of Chapter 45 of this

code, and that complaint serves as an original complaint. A

defendant may waive the filing of a sworn complaint and elect

that the prosecution proceed on the written notice of the charged

offense if the defendant agrees in writing with the prosecution,

signs the agreement, and files it with the court.

(e)(1) Before accepting a plea of guilty or a plea of nolo

contendere by a defendant charged with a misdemeanor involving

family violence, as defined by Section 71.004, Family Code, the

court shall admonish the defendant by using the following

statement:

"If you are convicted of a misdemeanor offense involving violence

where you are or were a spouse, intimate partner, parent, or

guardian of the victim or are or were involved in another,

similar relationship with the victim, it may be unlawful for you

to possess or purchase a firearm, including a handgun or long

gun, or ammunition, pursuant to federal law under 18 U.S.C.

Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you

have any questions whether these laws make it illegal for you to

possess or purchase a firearm, you should consult an attorney."

(2) The court may provide the admonishment under Subdivision (1)

orally or in writing, except that if the defendant is charged

with a misdemeanor punishable by fine only, the statement printed

on a citation issued under Article 14.06(b) may serve as the

court admonishment required by this subsection.

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

Amended by Acts 1967, 60th Leg., p. 1738, ch. 659, Sec. 18, eff.

Aug. 28, 1967; Acts 1977, 65th Leg., p. 2143, ch. 858, Sec. 1,

eff. June 16, 1977; Acts 1979, 66th Leg., p. 450, ch. 207, Sec.

1, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 1257, ch. 273,

Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 87, Sec. 1,

eff. Sept. 1, 1985.

Subsecs. (b) to (d) amended by Acts 1993, 73rd Leg., ch. 76, Sec.

1, eff. Sept. 1, 1993; Subsec. (c) amended by Acts 2001, 77th

Leg., ch. 285, Sec. 1, eff. Sept. 1, 2001.

Amended by:

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

473, Sec. 1, eff. September 1, 2009.

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

1121, Sec. 1, eff. September 1, 2009.

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

1379, Sec. 3, eff. September 1, 2009.

Art. 27.15. CHANGE OF VENUE TO PLEAD GUILTY. When in any county

which is located in a judicial district composed of more than one

county, a party is charged with a felony and the maximum

punishment therefor shall not exceed fifteen years, and the

district court of said county is not in session, such party may,

if he desires to plead guilty, or enter a plea of nolo

contendere, make application to the district judge of such

district for a change of venue to the county in which said court

is in session, and said district judge may enter an order

changing the venue of said cause to the county in which the court

is then in session, and the defendant may plead guilty or enter a

plea of nolo contendere to said charge in said court to which the

venue has been changed.

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

Art. 27.16. PLEA OF NOT GUILTY, HOW MADE. (a) The plea of not

guilty may be made orally by the defendant or by his counsel in

open court. If the defendant refuses to plead, the plea of not

guilty shall be entered for him by the court.

(b) A defendant charged with a misdemeanor for which the maximum

possible punishment is by fine only may, in lieu of the method

provided in Subsection (a) of this article, mail to the court a

plea of not guilty.

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

Amended by Acts 1977, 65th Leg., p. 2143, ch. 858, Sec. 2, eff.

June 16, 1977.

Art. 27.17. PLEA OF NOT GUILTY CONSTRUED. The plea of not guilty

shall be construed to be a denial of every material allegation in

the indictment or information. Under this plea, evidence to

establish the insanity of defendant, and every fact whatever

tending to acquit him of the accusation may be introduced, except

such facts as are proper for a special plea under Article 27.05.

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

Art. 27.18. PLEA OR WAIVER OF RIGHTS BY CLOSED CIRCUIT VIDEO

TELECONFERENCING. (a) Notwithstanding any provision of this code

requiring that a plea or a waiver of a defendant's right be made

in open court, a court may accept the plea or waiver by broadcast

by closed circuit video teleconferencing to the court if:

(1) the defendant and the attorney representing the state file

with the court written consent to the use of closed circuit video

teleconferencing;

(2) the closed circuit video teleconferencing system provides for

a simultaneous, compressed full motion video, and interactive

communication of image and sound between the judge, the attorney

representing the state, the defendant, and the defendant's

attorney; and

(3) on request of the defendant, the defendant and the

defendant's attorney are able to communicate privately without

being recorded or heard by the judge or the attorney representing

the state.

(b) On motion of the defendant or the attorney representing the

state or in the court's discretion, the court may terminate an

appearance by closed circuit video teleconferencing at any time

during the appearance and require an appearance by the defendant

in open court.

(c) A recording of the communication shall be made and preserved

until all appellate proceedings have been disposed of. The

defendant may obtain a copy of the recording on payment of a

reasonable amount to cover the costs of reproduction or, if the

defendant is indigent, the court shall provide a copy to the

defendant without charging a cost for the copy.

(d) A defendant who is confined in a county other than the

county in which charges against the defendant are pending may use

the teleconferencing method provided by this article or the

electronic broadcast system authorized in Article 15.17 to enter

a plea or waive a right in the court with jurisdiction over the

case.

(e) A defendant who enters a plea or waiver under Subsection

(d):

(1) consents to venue in the county in which the court receiving

the plea or waiver is located; and

(2) waives any claim of error related to venue.

(f) Subsection (e) does not prohibit a court from granting a

defendant's motion for a change of venue during the trial of the

defendant.

(g) If a defendant enters a plea of guilty or nolo contendere

under Subsection (d), the attorney representing the state may

request at the time the plea is entered that the defendant submit

a fingerprint of the defendant suitable for attachment to the

judgment. On request for a fingerprint under this subsection,

the county in which the defendant is confined shall obtain a

fingerprint of the defendant and use first-class mail or other

means acceptable to the attorney representing the state and the

county to forward the fingerprint to the court accepting the

plea.

Added by Acts 1997, 75th Leg., ch. 1014, Sec. 1, eff. Sept. 1,

1997.

Amended by:

Acts 2005, 79th Leg., Ch.

1094, Sec. 6, eff. September 1, 2005.

Art. 27.19. PLEA BY CERTAIN DEFENDANTS. (a) Notwithstanding

any other provision of this code, a court shall accept a plea of

guilty or nolo contendere from a defendant who is confined in a

penal institution if the plea is made:

(1) in accordance with the procedure established by Article

27.18; or

(2) in writing before the appropriate court having jurisdiction

in the county in which the penal institution is located, provided

that:

(A) the defendant is notified by the court of original

jurisdiction of the right to counsel and the procedures for

requesting appointment of counsel, and is provided a reasonable

opportunity to request a court-appointed lawyer;

(B) if the defendant elects to proceed without counsel, the

defendant must waive the right to counsel in accordance with

Article 1.051;

(C) the defendant must waive the right to be present at the

taking of the plea or to have counsel present, if the defendant

has counsel; and

(D) if the defendant is charged with a felony, judgment and

sentence are rendered in accordance with the conditions and the

procedure established by Article 42.14(b).

(b) In this article, "penal institution" has the meaning

assigned by Section 1.07, Penal Code.

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

291, Sec. 1, eff. September 1, 2009.