Municipal courts in Texas can issue three different kinds of warrants related to the arrest of an individual: an arrest warrant, a capias, or a capias pro fine. Arrest warrants are found under Chapter 15 of the Code of Criminal Procedure (“CCP”) and are a written order from a magistrate directed to a peace officer (or some other person specially named) “commanding him to take the body of the person accused of an offense to be dealt with according to law.” Art. 15.01. If an arrest warrant is issued, it will be prior to the formal charging of an offense. These warrants require a probable cause affidavit (stating the probable cause that justifies the warrant), and a complaint (that describes the offense committed and the details of that offense). An arrest warrant may be issued when a magistrate would be authorized by law to order verbally the arrest of an offender, and a person must make an oath before a magistrate that another person has committed some offense against the laws of Texas. Art. 15.03. The warrant may also be issued in any case in the CCP where a magistrate is specially authorized to issue the warrant. Art. 15.03. An officer executing an arrest warrant must take the arrestee before a magistrate “without unnecessary delay, but not later than 48 hours after the person is arrested.” Art. 15.17.

Although capias warrants are found under CCP Article 43, these are more commonly issued under Article 23 and, in that context, are also pre-judgment warrants, often to bring in a defendant if for bond forfeiture issues. These command any peace officer of Texas to arrest a person accused of an offense and bring that person to court immediately or at a term stated in the writ. Art. 23.01. A capias has several requirements, found under Art. 23.02, including that it must specify the offense of which the defendant is accused and the name of the court to which and the time when it is returnable. Although a capias provides a specific time for when a defendant is to appear, it does not lose its force if not executed and returned at the time fixed in the writ. Art. 23.07. Thus, a capias is executable until recalled.

Briefly, a capias under CCP Article 43 may be issued for the arrest of a defendant after judgment and sentencing, but the distinction here is that it is not for failure to satisfy the judgment of the court. This is a small distinction, but important to note.

For both the capias and arrest warrants, there is a “safe harbor” rule recently enacted by statute, where it states that a capias or warrant of arrest must be recalled if the warrant was issued because of failure to appear and, before the warrant is served on the defendant, the defendant voluntarily appears to resolve the warrant.

Finally, capias pro fine warrants are found under CCP Art. 45.045. This is the post-judgment warrant, meaning it comes after a defendant has been convicted of an offense that may be ordered if the defendant fails to satisfy the judgment according to its terms. This warrant shall state the amount of the judgment and sentence, and the defendant must be brought before the court immediately upon arrest by the appropriate peace officer. Art. 45.045(a). If the defendant cannot be brought in immediately, then he/she must be placed in jail until the business day following the date of the defendant’s arrest. Capias pro fines may not be issued without a hearing on the defendant’s ability to satisfy the judgment, and they may be recalled if, before the capias pro fine is executed, the defendant voluntarily appears to resolve the amount owed and it is so resolved. Art. 45.045(a-2). A simple way of viewing the capias pro fine is that it is not meant to commit a defendant to jail, but is instead used to bring the defendant before the court to show cause as to why they did not comply with the judgment entered against them.

Overall, it is important that a defendant with any open warrants contact the issuing court, either through an attorney or self-representation, in an effort to resolve these issues. An arrest for an open warrant can occur at some of the most inconvenient times, often during routine traffic stops, and availing oneself of an open warrant can prevent future confinement or elevated costs and fines.

 

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.