CHAPTER 28. MOTIONS, PLEADINGS AND EXCEPTIONS - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 28. MOTIONS, PLEADINGS AND EXCEPTIONS

Art. 28.01. PRE-TRIAL.

Sec. 1. The court may set any criminal case for a pre-trial

hearing before it is set for trial upon its merits, and direct

the defendant and his attorney, if any of record, and the State's

attorney, to appear before the court at the time and place stated

in the court's order for a conference and hearing. The defendant

must be present at the arraignment, and his presence is required

during any pre-trial proceeding. The pre-trial hearing shall be

to determine any of the following matters:

(1) Arraignment of the defendant, if such be necessary; and

appointment of counsel to represent the defendant, if such be

necessary;

(2) Pleadings of the defendant;

(3) Special pleas, if any;

(4) Exceptions to the form or substance of the indictment or

information;

(5) Motions for continuance either by the State or defendant;

provided that grounds for continuance not existing or not known

at the time may be presented and considered at any time before

the defendant announces ready for trial;

(6) Motions to suppress evidence--When a hearing on the motion to

suppress evidence is granted, the court may determine the merits

of said motion on the motions themselves, or upon opposing

affidavits, or upon oral testimony, subject to the discretion of

the court;

(7) Motions for change of venue by the State or the defendant;

provided, however, that such motions for change of venue, if

overruled at the pre-trial hearing, may be renewed by the State

or the defendant during the voir dire examination of the jury;

(8) Discovery;

(9) Entrapment; and

(10) Motion for appointment of interpreter.

Sec. 2. When a criminal case is set for such pre-trial hearing,

any such preliminary matters not raised or filed seven days

before the hearing will not thereafter be allowed to be raised or

filed, except by permission of the court for good cause shown;

provided that the defendant shall have sufficient notice of such

hearing to allow him not less than 10 days in which to raise or

file such preliminary matters. The record made at such pre-trial

hearing, the rulings of the court and the exceptions and

objections thereto shall become a part of the trial record of the

case upon its merits.

Sec. 3. The notice mentioned in Section 2 above shall be

sufficient if given in any one of the following ways:

(1) By announcement made by the court in open court in the

presence of the defendant or his attorney of record;

(2) By personal service upon the defendant or his attorney of

record;

(3) By mail to either the defendant or his attorney of record

deposited by the clerk in the mail at least six days prior to the

date set for hearing. If the defendant has no attorney of record

such notice shall be addressed to defendant at the address shown

on his bond, if the bond shows such an address, and if not, it

may be addressed to one of the sureties on his bond. If the

envelope containing the notice is properly addressed, stamped and

mailed, the state will not be required to show that it was

received.

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. 19, eff.

Aug. 28, 1967; Acts 1973, 63rd Leg., p. 969, ch. 399, Sec. 2(A),

eff. Jan. 1, 1974; Acts 1979, 66th Leg., p. 204, ch. 113, Sec. 1,

eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 453, ch. 209, Sec.

2, eff. Aug. 27, 1979.

Art. 28.02. ORDER OF ARGUMENT. The counsel of the defendant has

the right to open and conclude the argument upon all pleadings of

the defendant presented for the decision of the judge.

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

Art. 28.03. PROCESS FOR TESTIMONY ON PLEADINGS. When the matters

involved in any written pleading depend in whole or in part upon

testimony, and not altogether upon the record of the court, every

process known to the law may be obtained on behalf of either

party to procure such testimony; but there shall be no delay on

account of the want of the testimony, unless it be shown to the

satisfaction of the court that all the means given by the law

have been used to procure the same.

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

Art. 28.04. QUASHING CHARGE IN MISDEMEANOR. If the motion to set

aside or the exception to an indictment or information is

sustained, the defendant in a misdemeanor case shall be

discharged, but may be again prosecuted within the time allowed

by law.

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

Art. 28.05. QUASHING INDICTMENT IN FELONY. If the motion to set

aside or the exception to the indictment in cases of felony be

sustained, the defendant shall not therefor be discharged, but

may immediately be recommitted by order of the court, upon motion

of the State's attorney or without motion; and proceedings may

afterward be had against him as if no prosecution had ever been

commenced.

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

Art. 28.06. SHALL BE FULLY DISCHARGED, WHEN. Where, after the

motion or exception is sustained, it is made known to the court

by sufficient testimony that the offense of which the defendant

is accused will be barred by limitation before another indictment

can be presented, he shall be fully discharged.

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

Art. 28.061. DISCHARGE FOR DELAY. If a motion to set aside an

indictment, information, or complaint for failure to provide a

speedy trial is sustained, the court shall discharge the

defendant. A discharge under this article is a bar to any further

prosecution for the offense discharged and for any other offense

arising out of the same transaction, other than an offense of a

higher grade that the attorney representing the state and

prosecuting the offense that was discharged does not have the

primary duty to prosecute.

Acts 1977, 65th Leg., p. 1972, ch. 787, Sec. 4, eff. July 1,

1978. Amended by Acts 1987, 70th Leg., ch. 383, Sec. 1, eff.

Sept. 1, 1987.

Amended by Acts 1997, 75th Leg., ch. 289, Sec. 1, eff. May 26,

1997.

Art. 28.07. IF EXCEPTION IS THAT NO OFFENSE IS CHARGED. If an

exception to an indictment or information is taken and sustained

upon the ground that there is no offense against the law charged

therein, the defendant shall be discharged, unless an affidavit

be filed accusing him of the commission of a penal offense.

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

Art. 28.08. WHEN DEFENDANT IS HELD BY ORDER OF COURT. If the

motion to set aside the indictment or any exception thereto is

sustained, but the court refuses to discharge the defendant, then

at the expiration of ten days from the order sustaining such

motions or exceptions, the defendant shall be discharged, unless

in the meanwhile complaint has been made before a magistrate

charging him with an offense, or unless another indictment has

been presented against him for such offense.

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

Art. 28.09. EXCEPTION ON ACCOUNT OF FORM OR SUBSTANCE. If the

exception to an indictment or information is sustained, the

information or indictment may be amended if permitted by Article

28.10 of this code, and the cause may proceed upon the amended

indictment or information.

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

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

1985.

Art. 28.10. AMENDMENT OF INDICTMENT OR INFORMATION. (a) After

notice to the defendant, a matter of form or substance in an

indictment or information may be amended at any time before the

date the trial on the merits commences. On the request of the

defendant, the court shall allow the defendant not less than 10

days, or a shorter period if requested by the defendant, to

respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information

may also be amended after the trial on the merits commences if

the defendant does not object.

(c) An indictment or information may not be amended over the

defendant's objection as to form or substance if the amended

indictment or information charges the defendant with an

additional or different offense or if the substantial rights of

the defendant are prejudiced.

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

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

1985.

Art. 28.11. HOW AMENDED. All amendments of an indictment or

information shall be made with the leave of the court and under

its direction.

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

Art. 28.12. EXCEPTION AND TRIAL OF SPECIAL PLEAS. When a special

plea is filed by the defendant, the State may except to it for

substantial defects. If the exception be sustained, the plea may

be amended. If the plea be not excepted to, it shall be

considered that issue has been taken upon the same. Such special

pleas as set forth matter of fact proper to be tried by a jury

shall be submitted and tried with a plea of not guilty.

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

Art. 28.13. FORMER ACQUITTAL OR CONVICTION. A former judgment of

acquittal or conviction in a court of competent jurisdiction

shall be a bar to any further prosecution for the same offense,

but shall not bar a prosecution for any higher grade of offense

over which said court had not jurisdiction, unless such judgment

was had upon indictment or information, in which case the

prosecution shall be barred for all grades of the offense.

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

Art. 28.14. PLEA ALLOWED. Judgment shall, in no case, be given

against the defendant where his motion, exception or plea is

overruled; but in all cases the plea of not guilty may be made by

or for him.

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