2005 Texas Code of Criminal Procedure CHAPTER 16. THE COMMITMENT OR DISCHARGE OF THE ACCUSED

CODE OF CRIMINAL PROCEDURE

CHAPTER 16. THE COMMITMENT OR DISCHARGE OF THE ACCUSED


	Art. 16.01. [245] [292] [280] 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, eff. Jan. 1, 1966.  
Amended by Acts 1987, 70th Leg., ch. 140, Sec. 4, eff. Sept. 1, 
1987.


	Art. 16.02. [246] [293] [281] 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, eff. Jan. 1, 1966.             


	Art. 16.03. [247] [294] [282] 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, eff. Jan. 1, 1966.             


	Art. 16.04. [248] [295] [283] 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, eff. Jan. 1, 1966.             


	Art. 16.06. [250] [297] [285] 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, eff. Jan. 1, 1966.             


	Art. 16.07. [251] [298] [286] 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, eff. Jan. 1, 1966.             


	Art. 16.08. [252] [299] [287] 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, eff. Jan. 1, 1966.             


	Art. 16.09. [253] [300] [288] 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, eff. Jan. 1, 1966.             


	Art. 16.10. [254] [301] [289] 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, eff. Jan. 1, 1966.             


	Art. 16.11. [255] [302] [290] 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, eff. Jan. 1, 1966.             


	Art. 16.12. [256] [303] [291] 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, eff. Jan. 1, 1966.             


	Art. 16.13. [257] [304] [292] 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, eff. Jan. 1, 1966.             


	Art. 16.14. [258] [305] [293] 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, eff. Jan. 1, 1966.             


	Art. 16.15. [259] [306] [294] 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, eff. Jan. 1, 1966.             


	Art. 16.16. [260] [307] [295] 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, eff. Jan. 1, 1966.  
Amended by Acts 1981, 67th Leg., p. 802, ch. 291, Sec. 104, eff. 
Sept. 1, 1981.


	Art. 16.17. [261] [308] [296] 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, eff. Jan. 1, 1966.             


	Art. 16.18. [262] [309] [297] 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, eff. Jan. 1, 1966.             


	Art. 16.19. [263] [310] [298] 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, eff. Jan. 1, 1966.             


	Art. 16.20. [264] [311] [299] "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, eff. Jan. 1, 1966.             


	Art. 16.21. [265] [313] [301] 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, eff. Jan. 1, 1966.             


	Art. 16.22. EXAMINATION AND TRANSFER OF DEFENDANT SUSPECTED 
OF HAVING MENTAL ILLNESS OR MENTAL RETARDATION.  (a) Not later than 
72 hours after receiving evidence or a statement 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, the sheriff shall notify a magistrate of that fact.  A 
defendant's behavior or the result of a prior evaluation indicating 
a need for referral for further mental health or mental retardation 
assessment must be considered in determining whether reasonable 
cause exists to believe the defendant has a mental illness or is a 
person with mental retardation.  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 shall order 
an examination of the defendant by the local mental health or mental 
retardation authority or another disinterested expert experienced 
and qualified in mental health or mental retardation to determine 
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.  
If the defendant fails or refuses to submit to examination, the 
magistrate may order the defendant to submit to 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 Texas Department of Mental Health and 
Mental Retardation 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 Texas Department of Mental Health and 
Mental Retardation 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 Texas 
Department of Mental Health and Mental Retardation 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 report of the examination shall be submitted 
to the magistrate within 30 days of the order of examination, and 
the magistrate shall furnish copies of the report to the defense 
counsel and the prosecuting attorney.  The report shall include a 
description of the procedures used in the examination and the 
examiner'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 court receives the examining expert's report 
relating to the defendant under Subsection (b), the court may 
resume:
	(1)  criminal proceedings against the defendant, including 
proceedings related to the defendant's release on personal bond 
under Article 17.032;  or
	(2)  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.

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;  
Acts 2003, 78th Leg., ch. 35, Sec. 2, eff. Jan. 1, 2004.