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CODE OF CRIMINAL PROCEDURE CHAPTER 23.
THE CAPIAS
Art. 23.01. [441] [505] [493] Definition of a "capias"
A "capias" is a writ issued by the court or clerk, and directed "To
any peace officer of the State of Texas", commanding him to arrest a
person accused of an offense and bring him 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.
Art. 23.02. [442] [506] [494] 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. [443] [507] [495] 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. 23.04. [444] [508] [496] In misdemeanor case
In misdemeanor cases the capias or summons shall issue from a court
having jurisdiction of the case. The summons shall be issued only
upon request of the attorney representing the State 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.
Art. 23.05. Capias After Surrender Or Forfeiture
(a) If a forfeiture of bail is declared 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 of this code, in which
case the defendant and his 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.
Art. 23.06. [446] [510] [498] 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. [447] [511] [499] 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. [448] [512] [500] 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.
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