CHAPTER TWENTY-EIGHT—MOTIONS, PLEADINGS AND EXCEPTIONS

Art. 28.01. [522] [587] [576] Pre-trial

Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State's attorney, to appear before the court at the time and place stated in the court's order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding. The pre-trial hearing shall be to determine any of the following matters:

(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary;

(2) Pleadings of the defendant;

(3) Special pleas, if any;

(4) Exceptions to the form or substance of the indictment or information;

(5) Motions for continuance either by the State or defendant; provided that grounds for continuance not existing or not known at the time may be presented and considered at any time before the defendant announces ready for trial;

(6) Motions to suppress evidence—When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;

(7) Motions for change of venue by the State or the defendant; provided, however, that such motions for change of venue, if overruled at the pre-trial hearing, may be renewed by the State or the defendant during the voir dire examination of the jury;

(8) Discovery;

(9) Entrapment; and

(10) Motion for appointment of interpreter.

Sec. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.

Sec. 3. The notice mentioned in Section 2 above shall be sufficient if given in any one of the following ways:

(1) By announcement made by the court in open court in the presence of the defendant or his attorney of record;

(2) By personal service upon the defendant or his attorney of record;

(3) By mail to either the defendant or his attorney of record deposited by the clerk in the mail at least six days prior to the date set for hearing. If the defendant has no attorney of record such notice shall be addressed to defendant at the address shown on his bond, if the bond shows such an address, and if not, it may be addressed to one of the sureties on his bond. If the envelope containing the notice is properly addressed, stamped and mailed, the state will not be required to show that it was received.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1967, 60th Leg., p. 1738, ch. 659, § 19, eff. Aug. 28, 1967; Acts 1973, 63rd Leg., p. 969, ch. 399, § 2(A), eff. Jan. 1, 1974; Acts 1979, 66th Leg., p. 204, ch. 113, § 1, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 453, ch. 209, § 2, eff. Aug. 27, 1979.

Art. 28.02. [524] [589] [578] Order of argument

The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.03. [526] [591] [580] Process for testimony on pleadings

When the matters involved in any written pleading depend in whole or in part upon testimony, and not altogether upon the record of the court, every process known to the law may be obtained on behalf of either party to procure such testimony; but there shall be no delay on account of the want of the testimony, unless it be shown to the satisfaction of the court that all the means given by the law have been used to procure the same.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.04. [527] [592] [581] Quashing charge in misdemeanor

If the motion to set aside or the exception to an indictment or information is sustained, the defendant in a misdemeanor case shall be discharged, but may be again prosecuted within the time allowed by law.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.05. [528][593][582] Quashing indictment in felony

If the motion to set aside or the exception to the indictment in cases of felony be sustained, the defendant shall not therefor be discharged, but may immediately be recommitted by order of the court, upon motion of the State's attorney or without motion; and proceedings may afterward be had against him as if no prosecution had ever been commenced.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.06. [529] [594] [583] Shall be fully discharged, when

Where, after the motion or exception is sustained, it is made known to the court by sufficient testimony that the offense of which the defendant is accused will be barred by limitation before another indictment can be presented, he shall be fully discharged.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.061. Discharge for Delay

If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

Acts 1977, 65th Leg., p. 1972, ch. 787, § 4, eff. July 1, 1978. Amended by Acts 1987, 70th Leg., ch. 383, § 1, eff. Sept. 1, 1987.

Amended by Acts 1997, 75th Leg., ch. 289, § 1, eff. May 26, 1997.

Art. 28.07. [530] [595] [584] If exception is that no offense is charged

If an exception to an indictment or information is taken and sustained upon the ground that there is no offense against the law charged therein, the defendant shall be discharged, unless an affidavit be filed accusing him of the commission of a penal offense.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.08. [531] [596] [585] When defendant is held by order of court

If the motion to set aside the indictment or any exception thereto is sustained, but the court refuses to discharge the defendant, then at the expiration of ten days from the order sustaining such motions or exceptions, the defendant shall be discharged, unless in the meanwhile complaint has been made before a magistrate charging him with an offense, or unless another indictment has been presented against him for such offense.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.09. [532] [597] [586] Exception on account of form or substance

If the exception to an indictment or information is sustained, the information or indictment may be amended if permitted by Article 28.10 of this code, and the cause may proceed upon the amended indictment or information.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1985, 69th Leg., ch. 577, § 1, eff. Dec. 1, 1985.

Art. 28.10. [533] [598] [587] Amendment of indictment or information

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1985, 69th Leg., ch. 577, § 1, eff. Dec. 1, 1985.

Art. 28.11. [534] [599] [588] How amended

All amendments of an indictment or information shall be made with the leave of the court and under its direction.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.12. [525,535] [590,600] [579,589] Exception and trial of special pleas

When a special plea is filed by the defendant, the State may except to it for substantial defects. If the exception be sustained, the plea may be amended. If the plea be not excepted to, it shall be considered that issue has been taken upon the same. Such special pleas as set forth matter of fact proper to be tried by a jury shall be submitted and tried with a plea of not guilty.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.13. [536] [601] [590] Former acquittal or conviction

A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 28.14. [537] [602] [591] Plea allowed

Judgment shall, in no case, be given against the defendant where his motion, exception or plea is overruled; but in all cases the plea of not guilty may be made by or for him.