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A BILL TO BE ENTITLED
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AN ACT
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relating to issuance by a court of a capias or a capias pro fine. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 15.18, Code of Criminal Procedure, is |
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amended by adding Subsection (d) to read as follows: |
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(d) This article does not apply to an arrest made pursuant |
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to a capias pro fine issued under Chapter 43 or Article 45.045. |
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SECTION 2. Articles 17.19(b) and (c), Code of Criminal |
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Procedure, are amended to read as follows: |
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(b) In a prosecution pending before a court, if [If] the |
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court [or magistrate] finds that there is cause for the surety to |
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surrender the surety's [his] principal, the court shall issue a |
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[warrant of arrest or] capias for the principal. In a prosecution |
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pending before a magistrate, if the magistrate finds that there is |
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cause for the surety to surrender the surety's principal, the |
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magistrate shall issue a warrant of arrest for the principal. It is |
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an affirmative defense to any liability on the bond that: |
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(1) the court or magistrate refused to issue a capias |
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or warrant of arrest [or capias] for the principal; and |
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(2) after the refusal to issue the capias or warrant of |
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arrest, [or capias] the principal failed to appear. |
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(c) If the court or magistrate before whom the prosecution |
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is pending is not available, the surety may deliver the affidavit to |
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any other magistrate in the county and that magistrate, on a finding |
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of cause for the surety to surrender the surety's [his] principal, |
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shall issue a warrant of arrest [or capias] for the principal. |
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SECTION 3. Article 23.01, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 23.01. DEFINITION OF A "CAPIAS". In this chapter, a |
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[A] "capias" is a writ that is: |
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(1) issued by a judge of the court having jurisdiction |
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of a case after commitment or bail and before trial, [the court] or |
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by a clerk at the direction of the judge; [,] and |
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(2) directed "To any peace officer of the State of |
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Texas", commanding the officer [him] to arrest a person accused of |
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an offense and bring the arrested person [him] before that court |
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immediately[,] or on a day or at a term stated in the writ. |
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SECTION 4. Article 23.031, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 23.031. ISSUANCE OF CAPIAS IN ELECTRONIC FORM. A |
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district clerk, county clerk, or court may issue in electronic form |
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a capias for the failure of a person to appear before a court[, pay a
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fine,] or comply with a court order. |
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SECTION 5. Article 23.04, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 23.04. IN MISDEMEANOR CASE. In misdemeanor cases, the |
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capias or summons shall issue from a court having jurisdiction of |
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the case on the filing of an information or complaint. The summons |
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shall be issued only upon request of the attorney representing the |
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State and on the determination of probable cause by the judge, and |
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shall follow the same form and procedure as in a felony case. |
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SECTION 6. Article 23.05(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) If a forfeiture of bail is declared by a court or a |
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surety surrenders a defendant under Article 17.19, a capias shall |
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be immediately issued for the arrest of the defendant, and when |
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arrested, in its discretion, the court may require the defendant, |
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in order to be released from custody, to deposit with the custodian |
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of funds of the court in which the prosecution is pending current |
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money of the United States in the amount of the new bond as set by |
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the court, in lieu of a surety bond, unless a forfeiture is taken |
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and set aside under the third subdivision of Article 22.13 [of this
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code], in which case the defendant and the defendant's [his] |
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sureties shall remain bound under the same bail. |
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SECTION 7. Chapter 43, Code of Criminal Procedure, is |
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amended by adding Article 43.015 to read as follows: |
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Art. 43.015. DEFINITIONS. In this chapter: |
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(1) "Capias" means a writ that is: |
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(A) issued by a court having jurisdiction of a |
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case after judgment and sentence; and |
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(B) directed "To any peace officer of the State |
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of Texas" and commanding the officer to arrest a person convicted of |
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an offense and bring the arrested person before that court |
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immediately or on a day or at a term stated in the writ. |
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(2) "Capias pro fine" means a writ that is: |
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(A) issued by a court having jurisdiction of a |
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case after judgment and sentence for unpaid fines and costs; and |
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(B) directed "To any peace officer of the State |
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of Texas" and commanding the officer to arrest a person convicted of |
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an offense and bring the arrested person before that court |
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immediately. |
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SECTION 8. Chapter 43, Code of Criminal Procedure, is |
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amended by adding Article 43.021 to read as follows: |
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Art. 43.021. CAPIAS OR CAPIAS PRO FINE IN ELECTRONIC FORM. |
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A capias or capias pro fine may be issued in electronic form. |
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SECTION 9. Article 43.03, Code of Criminal Procedure, is |
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amended by amending Subsection (d) and adding Subsection (e) to |
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read as follows: |
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(d) A court may not order a defendant confined under |
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Subsection (a) of this article unless the court at a hearing makes a |
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written determination that: |
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(1) [determines that] the defendant is not indigent |
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and has failed to make a good faith effort to discharge the fines |
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and costs [or determines that the defendant wilfully refused to pay
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or failed to make sufficient bona fide efforts legally to acquire
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the resources to pay and enters that determination in writing in the
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court docket]; or [and] |
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(2) the defendant is indigent and: |
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(A) has failed to make a good faith effort to |
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discharge the fines and costs under Article 43.09(f); and |
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(B) could have discharged the fines and costs |
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under Article 43.09 without experiencing any undue hardship |
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[determines that no alternative method of discharging fines and
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costs provided by Article 43.09 of this code is appropriate for the
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defendant]. |
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(e) This article does not apply to a court governed by |
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Chapter 45. |
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SECTION 10. Article 43.04, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 43.04. IF DEFENDANT IS ABSENT. When a judgment and |
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sentence have been rendered against a defendant [for a fine] in the |
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defendant's [his] absence, the court may order a capias issued for |
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the defendant's [his] arrest. The sheriff shall execute the capias |
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by bringing the defendant before the court or by placing the |
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defendant in jail until the defendant [he] can be brought before the |
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court. |
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SECTION 11. Article 43.05, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 43.05. CAPIAS PRO FINE SHALL RECITE [WHAT]. (a) A |
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[Where such] capias pro fine issued for the arrest and commitment of |
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a defendant convicted of a misdemeanor or felony, or found in |
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contempt, the penalty for which includes a fine, [issues, it] shall |
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recite [state the rendition and amount of] the judgment and |
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sentence[,] and command a peace officer [the sheriff] to |
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immediately bring the defendant before the court. |
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(b) A capias pro fine authorizes a peace officer to [or] |
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place the defendant [him] in jail until the business day following |
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the date of the defendant's arrest if the defendant cannot [he can] |
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be brought before the court immediately. |
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SECTION 12. Article 43.06, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 43.06. CAPIAS OR CAPIAS PRO FINE MAY ISSUE TO ANY |
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COUNTY. A [The] capias or capias pro fine [provided for in this
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Chapter] may be issued to any county in the State, and shall be |
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executed and returned as in other cases, but no bail shall be taken |
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in such cases. |
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SECTION 13. Article 43.07, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 43.07. EXECUTION FOR FINE AND COSTS. In each case of |
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pecuniary fine, an execution may issue for the fine and costs, |
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though a capias pro fine was issued for the defendant; and a capias |
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pro fine may issue for the defendant though an execution was issued |
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against the defendant's [his] property. The execution shall be |
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collected and returned as in civil actions. When the execution has |
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been collected, the defendant shall be at once discharged; and |
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whenever the fine and costs have been legally discharged in any way, |
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the execution shall be returned satisfied. |
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SECTION 14. Article 43.09, Code of Criminal Procedure, is |
|
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amended by adding Subsection (n) to read as follows: |
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(n) This article does not apply to a court governed by |
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Chapter 45. |
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SECTION 15. Article 43.091, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 43.091. WAIVER OF PAYMENT OF FINES AND COSTS FOR |
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INDIGENT DEFENDANTS [IN JUSTICE OR MUNICIPAL COURT]. A [municipal
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court, regardless of whether the court is a court of record, or a
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|
justice] court may waive payment of a fine or cost imposed on a |
|
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defendant who defaults in payment if the court determines that: |
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(1) the defendant is indigent; and |
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|
(2) each alternative method of discharging the fine or |
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|
cost under Article 43.09 would impose an undue hardship on the |
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defendant. |
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SECTION 16. Article 45.045(a), Code of Criminal Procedure, |
|
|
is amended to read as follows: |
|
|
(a) If the defendant is not in custody when the judgment is |
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rendered or if the defendant fails to satisfy the judgment |
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|
according to its terms, the court may order a capias pro fine, as |
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defined by Article 43.015, issued for the defendant's arrest. The |
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capias pro fine shall state the amount of the judgment and sentence, |
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and command the appropriate peace officer to bring the defendant |
|
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before the court immediately or place the defendant in jail until |
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the business day following the date of the defendant's arrest if the |
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defendant cannot [can] be brought before the court immediately. |
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SECTION 17. Article 45.049, Code of Criminal Procedure, is |
|
|
amended by adding Subsection (g) to read as follows: |
|
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(g) A community supervision and corrections department or a |
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court-related services office may provide the administrative and |
|
|
other services necessary for supervision of a defendant required to |
|
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perform community service under this article. |
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|
SECTION 18. Chapter 45, Code of Criminal Procedure, is |
|
|
amended by adding Article 45.0491 to read as follows: |
|
|
Art. 45.0491. WAIVER OF PAYMENT OF FINES AND COSTS FOR |
|
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INDIGENT DEFENDANTS. A municipal court, regardless of whether the |
|
|
court is a court of record, or a justice court may waive payment of a |
|
|
fine or costs imposed on a defendant who defaults in payment if the |
|
|
court determines that: |
|
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(1) the defendant is indigent; and |
|
|
(2) discharging the fine and costs under Article |
|
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45.049 would impose an undue hardship on the defendant. |
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SECTION 19. Article 45.046(a), Code of Criminal Procedure, |
|
|
is amended to read as follows: |
|
|
(a) When a judgment and sentence have been entered against a |
|
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defendant and the defendant defaults in the discharge of the |
|
|
judgment, the judge may order the defendant confined in jail until |
|
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discharged by law if the judge at a hearing makes a written |
|
|
determination [determines] that: |
|
|
(1) the defendant is not indigent and has |
|
|
[intentionally] failed to make a good faith effort to discharge the |
|
|
fine and costs [judgment]; or |
|
|
(2) the defendant is [not] indigent and: |
|
|
(A) has failed to make a good faith effort to |
|
|
discharge the fines and costs under Article 45.049; and |
|
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(B) could have discharged the fines and costs |
|
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under Article 45.049 without experiencing any undue hardship. |
|
|
SECTION 20. Article 102.011(a), Code of Criminal Procedure, |
|
|
is amended to read as follows: |
|
|
(a) A defendant convicted of a felony or a misdemeanor shall |
|
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pay the following fees for services performed in the case by a peace |
|
|
officer: |
|
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(1) $5 for issuing a written notice to appear in court |
|
|
following the defendant's violation of a traffic law, municipal |
|
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ordinance, or penal law of this state, or for making an arrest |
|
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without a warrant; |
|
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(2) $50 for executing or processing an issued arrest |
|
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warrant, [or] capias, or capias pro fine with the fee imposed for |
|
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the services of: |
|
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(A) the law enforcement agency that executed the |
|
|
arrest warrant or capias, if the agency requests of the court, not |
|
|
later than the 15th day after the date of the execution of the |
|
|
arrest warrant or capias, the imposition of the fee on conviction; |
|
|
or |
|
|
(B) the law enforcement agency that processed the |
|
|
arrest warrant or capias, if the executing law enforcement agency |
|
|
failed to request the fee within the period required by Paragraph |
|
|
(A) of this subdivision; |
|
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(3) $5 for summoning a witness; |
|
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(4) $35 for serving a writ not otherwise listed in this |
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article; |
|
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(5) $10 for taking and approving a bond and, if |
|
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necessary, returning the bond to the courthouse; |
|
|
(6) $5 for commitment or release; |
|
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(7) $5 for summoning a jury, if a jury is summoned; and |
|
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(8) $8 for each day's attendance of a prisoner in a |
|
|
habeas corpus case if the prisoner has been remanded to custody or |
|
|
held to bail. |
|
|
SECTION 21. Articles 43.09(m) and 43.12, Code of Criminal |
|
|
Procedure, are repealed. |
|
|
SECTION 22. This Act takes effect September 1, 2007. |
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* * * * * |