CHAPTER SIXTEEN—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.

Amended by Acts 1987, 70th Leg., ch. 140, § 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Amended by Acts 1981, 67th Leg., p. 802, ch. 291, § 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.

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.

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.

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.

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.

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, the examiner's observations and findings pertaining to whether the defendant is a person who has a mental illness or is a person with mental retardation and whether the defendant is competent to stand trial, and 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 Article 46.02 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.