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Art. 5.01. LEGISLATIVE STATEMENT
its members. Victims of
family violence are entitled to the maximum protection from harm or
abuse or the threat of harm or abuse as is permitted by law.
(b) In any law enforcement, prosecutorial, or judicial response
to allegations of family violence, the responding law enforcement or
judicial officers shall protect the victim, without regard to the
relationship between the alleged offender and victim.
Art. 5.02. DEFINITIONS
In this chapter, “family violence,”
“family,” “household,” and “member of a household” have the meanings
assigned by Chapter 71, Family Code.
Art. 5.03. FAMILY OR HOUSEHOLD RELATIONSHIP DOES NOT CREATE AN
EXCEPTION TO OFFICIAL DUTIES.
A general duty prescribed for an
officer by Chapter 2 of this code is not waived or excepted in any
family violence case or investigation because of a family or
household relationship between an alleged violator and the victim of
family violence. A peace officer’s or a magistrate’s duty to prevent
the commission of criminal offenses, including acts of family
violence, is not waived or excepted because of a family or household
relationship between the potential violator and victim.
Art. 5.04. DUTIES OF PEACE OFFICERS
(a) The primary duties of a peace officer who investigates a family violence allegation or who
responds to a disturbance call that may involve family violence are
to protect any potential victim of family violence, enforce the law
of this state, enforce a protective order from another jurisdiction
as provided by Chapter 88, Family Code, and make lawful arrests of
violators.
(a-1) A peace officer who investigates a family violence
allegation or who responds to a disturbance call that may involve
family violence shall determine whether the address of the persons
involved in the allegation or call matches the address of a current
licensed foster home or verified agency foster home listed in the
Texas Crime Information Center.
(b) A peace officer who investigates a family violence
allegation or who responds to a disturbance call that may involve
family violence shall advise any possible adult victim of all
reasonable means to prevent further family violence, including giving
written notice of a victim’s legal rights and remedies and of the
availability of shelter or other community services for family
violence victims.
(c) A written notice required by Subsection (b) of this article
is sufficient if it is in substantially the following form with the
required information in English and in Spanish inserted in the
notice:
“It is a crime for any person to cause you any physical injury
or harm EVEN IF THAT PERSON IS A MEMBER OR FORMER MEMBER OF YOUR
FAMILY OR HOUSEHOLD.
“NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE
“Please tell the investigating peace officer:
“IF you, your child, or any other household resident has been
injured; or
“IF you feel you are going to be in danger when the officer
leaves or later.
“You have the right to:
“ASK the local prosecutor to file a criminal complaint against
the person committing family violence; and
“APPLY to a court for an order to protect you (you should
consult a legal aid office, a prosecuting attorney, or a private
attorney). If a family or household member assaults you and is
arrested, you may request that a magistrate’s order for emergency
protection be issued. Please inform the investigating officer if you
want an order for emergency protection. You need not be present when
the order is issued. You cannot be charged a fee by a court in
connection with filing, serving, or entering a protective order. For
example, the court can enter an order that:
“(1) the abuser not commit further acts of violence;
“(2) the abuser not threaten, harass, or contact you at home;
“(3) directs the abuser to leave your household; and
“(4) establishes temporary custody of the children and directs
the abuser not to interfere with the children or any property.
“A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED PROTECTION
(such as (1) and (2) above) MAY BE A FELONY.
“CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS IF
YOU NEED PROTECTION:
“____________________________
“____________________________.”
Art. 5.045. STANDBY ASSISTANCE; LIABILITY
(a) In the
discretion of a peace officer, the officer may stay with a victim of
family violence to protect the victim and allow the victim to take
the personal property of the victim or of a child in the care of the
victim to a place of safety in an orderly manner.
(b) A peace officer who provides assistance under Subsection (a)
of this article is not:
(1) civilly liable for an act or omission of the officer that
arises in connection with providing the assistance or determining
whether to provide the assistance; or
(2) civilly or criminally liable for the wrongful appropriation
of any personal property by the victim.
Art. 5.05. REPORTS AND RECORDS
(a) A peace officer who
investigates a family violence incident or who responds to a
disturbance call that may involve family violence shall make a
written report, including but not limited to:
(1) the names of the suspect and complainant;
(2) the date, time, and location of the incident;
(3) any visible or reported injuries;
(4) a description of the incident and a statement of its
disposition; and
(5) whether the suspect is a member of the state military
forces or is serving in the armed forces of the United States in an
active-duty status.
(a-1) In addition to the written report required under
Subsection (a), a peace officer who investigates a family violence
incident or who responds to a disturbance call that may involve
family violence shall make a report to the Department of Family and
Protective Services if the location of the incident or call, or the
known address of a person involved in the incident or call, matches
the address of a current licensed foster home or a verified agency
foster home as listed in the Texas Crime Information Center. The
report under this subsection may be made orally or electronically and
must:
(1) include the information required by Subsection (a); and
(2) be filed with the Department of Family and Protective
Services within 24 hours of the beginning of the investigation or
receipt of the disturbance call.
(a-2) If a suspect is identified as being a member of the
military, as described by Subsection (a)(5), the peace officer shall
provide written notice of the incident or disturbance call to the
staff judge advocate at Joint Force Headquarters or the provost
marshal of the military installation to which the suspect is assigned
with the intent that the commanding officer will be notified, as
applicable.
(b) Each local law enforcement agency shall establish a
departmental code for identifying and retrieving family violence
reports as outlined in Subsection (a) of this section. A district or
county attorney or an assistant district or county attorney
exercising authority in the county where the law enforcement agency
maintains records under this section is entitled to access to the
records. The Department of Family and Protective Services is
entitled to access the records relating to any person who is 14 years
of age or older and who resides in a licensed foster home or a
verified agency foster home.
(c) In order to ensure that officers responding to calls are
aware of the existence and terms of protective orders, each municipal
police department and sheriff shall establish procedures within the
department or office to provide adequate information or access to
information for law enforcement officers of the names of persons
protected by a protective order and of persons to whom protective
orders are directed.
(d) Each law enforcement officer shall accept a certified copy
of an original or modified protective order as proof of the validity
of the order and it is presumed the order remains valid unless:
(1) the order contains a termination date that has passed;
(2) it is more than one year after the date the order was
issued; or
(3) the law enforcement officer has been notified by the clerk
of the court vacating the order that the order has been vacated.
(e) A peace officer who makes a report under Subsection (a) of
this article shall provide information concerning the incident or
disturbance to the bureau of identification and records of the
Department of Public Safety for its recordkeeping function under
Section 411.042, Government Code. The bureau shall prescribe the
form and nature of the information required to be reported to the
bureau by this article.
(f) On request of a victim of an incident of family violence,
the local law enforcement agency responsible for investigating the
incident shall provide the victim, at no cost to the victim, with any
information that is:
(1) contained in the written report prepared under
Subsection (a);
(2) described by Subsection (a)(1) or (2); and
(3) not exempt from disclosure under Chapter 552,
Government Code, or other law.
Art. 8.04. DISPERSING RIOT
Whenever a number of persons are
assembled together in such a manner as to constitute a riot,
according to the penal law of the State, it is the duty of every
magistrate or peace officer to cause such persons to disperse. This
may either be done by commanding them to disperse or by arresting the
persons engaged, if necessary, either with or without warrant.
Art. 8.06. MEANS ADOPTED TO SUPPRESS
The officer engaged in
suppressing a riot, and those who aid him are authorized and
justified in adopting such measures as are necessary to suppress the
riot, but are not authorized to use any greater degree of force than
is requisite to accomplish that object.
Art. 8.07. UNLAWFUL ASSEMBLY
The Articles of this Chapter
relating to the suppression of riots apply equally to an unlawful
assembly and other unlawful disturbances, as defined by the Penal
Code.
Art. 14.01. OFFENSE WITHIN VIEW.
(a) A peace officer or any
other person, may, without a warrant, arrest an offender when the
offense is committed in his presence or within his view, if the
offense is one classed as a felony or as an offense against the
public peace.
(b) A peace officer may arrest an offender without a warrant for
any offense committed in his presence or within his view.
Art. 14.02. WITHIN VIEW OF MAGISTRATE
A peace officer may
arrest, without warrant, when a felony or breach of the peace has
been committed in the presence or within the view of a magistrate,
and such magistrate verbally orders the arrest of the offender.
Art. 14.03. AUTHORITY OF PEACE OFFICERS
(a) Any peace officer
may arrest, without warrant:
(1) persons found in suspicious places and under
circumstances which reasonably show that such persons have been
guilty of some felony, violation of Title 9, Chapter 42, Penal Code,
breach of the peace, or offense under Section 49.02, Penal Code, or
threaten, or are about to commit some offense against the laws;
(2) persons who the peace officer has probable cause to
believe have committed an assault resulting in bodily injury to
another person and the peace officer has probable cause to believe
that there is danger of further bodily injury to that person;
(3) persons who the peace officer has probable cause to
believe have committed an offense defined by Section 25.07, Penal
Code, if the offense is not committed in the presence of the peace
officer;
(4) persons who the peace officer has probable cause to
believe have committed an offense involving family violence;
(5) persons who the peace officer has probable cause to
believe have prevented or interfered with an individual’s ability to
place a telephone call in an emergency, as defined by Section
42.062(d), Penal Code, if the offense is not committed in the
presence of the peace officer; or
(6) a person who makes a statement to the peace officer
that would be admissible against the person under Article 38.21 and
establishes probable cause to believe that the person has committed a
felony.
(b) A peace officer shall arrest, without a warrant, a person
the peace officer has probable cause to believe has committed an
offense under Section 25.07, Penal Code, if the offense is committed
in the presence of the peace officer.
(c) If reasonably necessary to verify an allegation of a
violation of a protective order or of the commission of an offense
involving family violence, a peace officer shall remain at the scene
of the investigation to verify the allegation and to prevent the
further commission of the violation or of family violence.
(d) A peace officer who is outside his jurisdiction may arrest,
without warrant, a person who commits an offense within the officer’s
presence or view, if the offense is a felony, a violation of Chapter
42 or 49, Penal Code, or a breach of the peace. A peace officer
making an arrest under this subsection shall, as soon as practicable
after making the arrest, notify a law enforcement agency having
jurisdiction where the arrest was made. The law enforcement agency
shall then take custody of the person committing the offense and take
the person before a magistrate in compliance with Article 14.06 of
this code.
(e) The justification for conduct provided under Section 9.21, Penal Code, applies to a peace officer when the peace officer is
performing a duty required by this article.
(f) In this article, “family violence” has the meaning assigned
by Section 71.004, Family Code.
(g)(1) A peace officer listed in Subdivision (1), (2), or (5),
Article 2.12, who is licensed under Chapter 1701, Occupations Code,
and is outside of the officer’s jurisdiction may arrest without a
warrant a person who commits any offense within the officer’s
presence or view, other than a violation of Subtitle C, Title 7,
Transportation Code.
(2) A peace officer listed in Subdivision (3), Article
2.12, who is licensed under Chapter 1701, Occupations Code, and is
outside of the officer’s jurisdiction may arrest without a warrant a
person who commits any offense within the officer’s presence or view,
except that an officer described in this subdivision who is outside
of that officer’s jurisdiction may arrest a person for a violation of
Subtitle C, Title 7, Transportation Code, only if the offense is
committed in the county or counties in which the municipality
employing the peace officer is located.
(3) A peace officer making an arrest under this subsection
shall as soon as practicable after making the arrest notify a law
enforcement agency having jurisdiction where the arrest was made.
The law enforcement agency shall then take custody of:
(A) the person committing the offense and take the
person before a magistrate in compliance with Article 14.06; and
(B) any property seized during or after the arrest as
if the property had been seized by a peace officer of that law
enforcement agency.
Art. 14.031. PUBLIC INTOXICATION
(a) In lieu of arresting an
individual who is not a child, as defined by Section 51.02, Family
Code, and who commits an offense under Section 49.02, Penal Code, a
peace officer may release the individual if:
(1) the officer believes detention in a penal facility is
unnecessary for the protection of the individual or others; and
(2) the individual:
(A) is released to the care of an adult who agrees to
assume responsibility for the individual; or
(B) verbally consents to voluntary treatment for
chemical dependency in a program in a treatment facility licensed and
approved by the Texas Commission on Alcohol and Drug Abuse, and the
program admits the individual for treatment.
(b) A magistrate may release from custody an individual who is
not a child, as defined by Section 51.02, Family Code, and who is arrested under Section 49.02, Penal Code, if the magistrate
determines the individual meets the conditions required for release
in lieu of arrest under Subsection (a) of this article.
(c) The release of an individual under Subsection (a) or (b) of
this article to an alcohol or drug treatment program may not be
considered by a peace officer or magistrate in determining whether
the individual should be released to such a program for a subsequent
incident or arrest under Section 49.02, Penal Code.
(d) A peace officer and the agency or political subdivision that
employs the peace officer may not be held liable for damage to
persons or property that results from the actions of an individual
released under Subsection (a) or (b) of this article.
Art. 14.04. WHEN FELONY HAS BEEN COMMITTED
Where it is shown
by satisfactory proof to a peace officer, upon the representation of
a credible person, that a felony has been committed, and that the
offender is about to escape, so that there is no time to procure a
warrant, such peace officer may, without warrant, pursue and arrest
the accused.
Art. 14.05. RIGHTS OF OFFICER
In each case enumerated where
arrests may be lawfully made without warrant, the officer or person
making the arrest is justified in adopting all the measures which he
might adopt in cases of arrest under warrant, except that an officer
making an arrest without a warrant may not enter a residence to make
the arrest unless:
(1) a person who resides in the residence consents to the entry;
or
(2) exigent circumstances require that the officer making the
arrest enter the residence without the consent of a resident or
without a warrant.
Art. 14.051. ARREST BY PEACE OFFICER FROM OTHER JURISDICTION.
(a) A peace officer commissioned and authorized by another state to
make arrests for felonies who is in fresh pursuit of a person for the
purpose of arresting that person for a felony may continue the
pursuit into this state and arrest the person.
(b) In this article, “fresh pursuit” means a pursuit without
unreasonable delay by a peace officer of a person the officer
reasonably suspects has committed a felony.
Art. 14.055. DUTY OF OFFICER TO NOTIFY PROBATE COURT
(a) In
this article, “ward” has the meaning assigned by Section 22.033,
Estates Code.
(b) As soon as practicable, but not later than the first
working day after the date a peace officer detains or arrests a
person who is a ward, the peace officer or the person having custody
of the ward shall notify the court having jurisdiction over the
ward’s guardianship of the ward’s detention or arrest.
Art. 14.06. MUST TAKE OFFENDER BEFORE MAGISTRATE
a) Except
as otherwise provided by this article, in each case enumerated in
this Code, the person making the arrest or the person having custody
of the person arrested shall take the person arrested or have him
taken without unnecessary delay, but not later than 48 hours after
the person is arrested, before the magistrate who may have ordered
the arrest, before some magistrate of the county where the arrest was
made without an order, or, to provide more expeditiously to the
person arrested the warnings described by Article 15.17 of this Code,
before a magistrate in any other county of this state. The magistrate
shall immediately perform the duties described in Article 15.17 of
this Code.
(b) A peace officer who is charging a person, including a
child, with committing an offense that is a Class C misdemeanor,
other than an offense under Section 49.02, Penal Code, may, instead
of taking the person before a magistrate, issue a citation to the
person that contains:
(1) written notice of the time and place the person must
appear before a magistrate;
(2) the name and address of the person charged;
(3) the offense charged;
(4) information regarding the alternatives to the full
payment of any fine or costs assessed against the person, if the
person is convicted of the offense and is unable to pay that amount;
and
(5) the following admonishment, in boldfaced or underlined
type or in capital letters:
“If you are convicted of a misdemeanor offense involving
violence where you are or were a spouse, intimate partner, parent, or
guardian of the victim or are or were involved in another, similar
relationship with the victim, it may be unlawful for you to possess
or purchase a firearm, including a handgun or long gun, or
ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9)
or Section 46.04(b), Texas Penal Code. If you have any questions
whether these laws make it illegal for you to possess or purchase a
firearm, you should consult an attorney.”
(c) If the person resides in the county where the offense
occurred, a peace officer who is charging a person with committing an
offense that is a Class A or B misdemeanor may, instead of taking the
person before a magistrate, issue a citation to the person that
contains written notice of the time and place the person must appear
before a magistrate of this state as described by Subsection (a), the
name and address of the person charged, and the offense charged.
(d) Subsection (c) applies only to a person charged with
committing an offense under:
(1) Section 481.121, Health and Safety Code, if the offense
is punishable under Subsection (b)(1) or (2) of that section;
(1-a) Section 481.1161, Health and Safety Code, if the
offense is punishable under Subsection (b)(1) or (2) of that section;
(2) Section 28.03, Penal Code, if the offense is punishable
under Subsection (b)(2) of that section;
(3) Section 28.08, Penal Code, if the offense is punishable
under Subsection (b)(2) or (3) of that section;
(4) Section 31.03, Penal Code, if the offense is punishable
under Subsection (e)(2)(A) of that section;
(5) Section 31.04, Penal Code, if the offense is punishable
under Subsection (e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is
punishable as a Class B misdemeanor; or
(7) Section 521.457, Transportation Code.
Art. 14.05. RIGHTS OF OFFICER
In each case enumerated where
arrests may be lawfully made without warrant, the officer or person
making the arrest is justified in adopting all the measures which he
might adopt in cases of arrest under warrant, except that an officer
making an arrest without a warrant may not enter a residence to make
the arrest unless:
(1) a person who resides in the residence consents to the entry;
or
(2) exigent circumstances require that the officer making the
arrest enter the residence without the consent of a resident or
without a warrant.
Art. 14.051. ARREST BY PEACE OFFICER FROM OTHER JURISDICTION.
(a) A peace officer commissioned and authorized by another state to
make arrests for felonies who is in fresh pursuit of a person for the
purpose of arresting that person for a felony may continue the
pursuit into this state and arrest the person.
(b) In this article, “fresh pursuit” means a pursuit without
unreasonable delay by a peace officer of a person the officer
reasonably suspects has committed a felony.
Art. 14.055. DUTY OF OFFICER TO NOTIFY PROBATE COURT
(a) In
this article, “ward” has the meaning assigned by Section 22.033,
Estates Code.
(b) As soon as practicable, but not later than the first
working day after the date a peace officer detains or arrests a
person who is a ward, the peace officer or the person having custody
of the ward shall notify the court having jurisdiction over the
ward’s guardianship of the ward’s detention or arrest.
Art. 14.06. MUST TAKE OFFENDER BEFORE MAGISTRATE
a) Except
as otherwise provided by this article, in each case enumerated in
this Code, the person making the arrest or the person having custody
of the person arrested shall take the person arrested or have him
taken without unnecessary delay, but not later than 48 hours after
the person is arrested, before the magistrate who may have ordered
the arrest, before some magistrate of the county where the arrest was
made without an order, or, to provide more expeditiously to the
person arrested the warnings described by Article 15.17 of this Code,
before a magistrate in any other county of this state. The magistrate
shall immediately perform the duties described in Article 15.17 of
this Code.
(b) A peace officer who is charging a person, including a
child, with committing an offense that is a Class C misdemeanor,
other than an offense under Section 49.02, Penal Code, may, instead
of taking the person before a magistrate, issue a citation to the
person that contains:
(1) written notice of the time and place the person must
appear before a magistrate;
(2) the name and address of the person charged;
(3) the offense charged;
(4) information regarding the alternatives to the full
payment of any fine or costs assessed against the person, if the
person is convicted of the offense and is unable to pay that amount;
and
(5) the following admonishment, in boldfaced or underlined
type or in capital letters:
“If you are convicted of a misdemeanor offense involving
violence where you are or were a spouse, intimate partner, parent, or
guardian of the victim or are or were involved in another, similar
relationship with the victim, it may be unlawful for you to possess
or purchase a firearm, including a handgun or long gun, or
ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9)
or Section 46.04(b), Texas Penal Code. If you have any questions
whether these laws make it illegal for you to possess or purchase a
firearm, you should consult an attorney.”
(c) If the person resides in the county where the offense
occurred, a peace officer who is charging a person with committing an
offense that is a Class A or B misdemeanor may, instead of taking the
person before a magistrate, issue a citation to the person that
contains written notice of the time and place the person must appear
before a magistrate of this state as described by Subsection (a), the
name and address of the person charged, and the offense charged.
(d) Subsection (c) applies only to a person charged with
committing an offense under:
(1) Section 481.121, Health and Safety Code, if the offense
is punishable under Subsection (b)(1) or (2) of that section;
(1-a) Section 481.1161, Health and Safety Code, if the
offense is punishable under Subsection (b)(1) or (2) of that section;
(2) Section 28.03, Penal Code, if the offense is punishable
under Subsection (b)(2) of that section;
(3) Section 28.08, Penal Code, if the offense is punishable
under Subsection (b)(2) or (3) of that section;
(4) Section 31.03, Penal Code, if the offense is punishable
under Subsection (e)(2)(A) of that section;
(5) Section 31.04, Penal Code, if the offense is punishable
under Subsection (e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is
punishable as a Class B misdemeanor; or
(7) Section 521.457, Transportation Code.
Art. 15.01. WARRANT OF ARREST
A “warrant of arrest” is 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. 15.02. REQUISITES OF WARRANT.
It issues in the name of
“The State of Texas”, and shall be sufficient, without regard to
form, if it have these substantial requisites:
1. It must specify the name of the person whose arrest is
ordered, if it be known, if unknown, then some reasonably definite
description must be given of him.
2. It must state that the person is accused of some offense
against the laws of the State, naming the offense.
3. It must be signed by the magistrate, and his office be named
in the body of the warrant, or in connection with his signature.
Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS.
(a) A
magistrate may issue a warrant of arrest or a summons:
1. In any case in which he is by law authorized to order
verbally the arrest of an offender;
2. When any person shall make oath before the magistrate that
another has committed some offense against the laws of the State;
and
3. In any case named in this Code where he is specially
authorized to issue warrants of arrest.
(b) A summons may be issued in any case where a warrant may be
issued, and shall be in the same form as the warrant except that it
shall summon the defendant to appear before a magistrate 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. If a defendant fails to appear in response to
the summons a warrant shall be issued.
(c) For purposes of Subdivision 2, Subsection (a), a person may
appear before the magistrate in person or the person’s image may be
presented to the magistrate through an electronic broadcast system.
(d) A recording of the communication between the person and the
magistrate must be made if the person’s image is presented through an
electronic broadcast system under Subsection (c). If the defendant is charged with the offense, the recording must be preserved until:
(1) the defendant is acquitted of the offense; or
(2) all appeals relating to the offense have been
exhausted.
(e) The counsel for the defendant may obtain a copy of the
recording on payment of an amount reasonably necessary to cover the
costs of reproducing the recording.
(f) In this article, “electronic broadcast system” means a twoway electronic communication of image and sound between a person and
magistrate and includes secure Internet videoconferencing.
Art. 15.04. COMPLAINT.
The affidavit made before the magistrate
or district or county attorney is called a “complaint” if it charges
the commission of an offense.
Art. 15.05. REQUISITES OF COMPLAINT
The complaint shall be
sufficient, without regard to form, if it have these substantial
requisites:
1. It must state the name of the accused, if known, and if not
known, must give some reasonably definite description of him.
2. It must show that the accused has committed some offense
against the laws of the State, either directly or that the affiant
has good reason to believe, and does believe, that the accused has
committed such offense.
3. It must state the time and place of the commission of the
offense, as definitely as can be done by the affiant.
4. It must be signed by the affiant by writing his name or
affixing his mark.
Art. 15.051. REQUIRING POLYGRAPH EXAMINATION OF COMPLAINANT
PROHIBITED.
(a) A peace officer or an attorney representing the
state may not require a polygraph examination of a person who charges
or seeks to charge in a complaint the commission of an offense under
Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code.
(b) If a peace officer or an attorney representing the state
requests a polygraph examination of a person who charges or seeks to
charge in a complaint the commission of an offense listed in
Subsection (a), the officer or attorney must inform the complainant
that the examination is not required and that a complaint may not be
dismissed solely:
(1) because a complainant did not take a polygraph examination;
or
(2) on the basis of the results of a polygraph examination taken
by the complainant.
(c) A peace officer or an attorney representing the state may
not take a polygraph examination of a person who charges or seeks to
charge the commission of an offense listed in Subsection (a) unless
the officer or attorney provides the information in Subsection (b) to
the person and the person signs a statement indicating the person
understands the information.
(d) A complaint may not be dismissed solely:
(1) because a complainant did not take a polygraph examination;
or
(2) on the basis of the results of a polygraph examination taken
by the complainant.
Art. 15.06. WARRANT EXTENDS TO EVERY PART OF THE STATE.
A
warrant of arrest, issued by any county or district clerk, or by any
magistrate (except mayors of an incorporated city or town), shall
extend to any part of the State; and any peace officer to whom said
warrant is directed, or into whose hands the same has been
transferred, shall be authorized to execute the same in any county in this State.
Art. 15.07. WARRANT ISSUED BY OTHER MAGISTRATE.
When a warrant
of arrest is issued by any mayor of an incorporated city or town, it
cannot be executed in another county than the one in which it issues,
except:
1. It be endorsed by a judge of a court of record, in which case
it may be executed anywhere in the State; or
2. If it be endorsed by any magistrate in the county in which
the accused is found, it may be executed in such county. The
endorsement may be: “Let this warrant be executed in the county of
……….”. Or, if the endorsement is made by a judge of a court of
record, then the endorsement may be: “Let this warrant be executed
in any county of the State of Texas”. Any other words of the same
meaning will be sufficient. The endorsement shall be dated, and
signed officially by the magistrate making it.
Art. 15.16. HOW WARRANT IS EXECUTED.
(a) The officer or
person executing a warrant of arrest shall without unnecessary delay
take the person or have him taken before the magistrate who issued
the warrant or before the magistrate named in the warrant, if the
magistrate is in the same county where the person is arrested. If
the issuing or named magistrate is in another county, the person
arrested shall without unnecessary delay be taken before some
magistrate in the county in which he was arrested.
(b) Notwithstanding Subsection (a), to provide more
expeditiously to the person arrested the warnings described by
Article 15.17, the officer or person executing the arrest warrant may
as permitted by that article take the person arrested before a magistrate in a county other than the county of arrest.
Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE.
(a) In
each case enumerated in this Code, the person making the arrest or
the person having custody of the person arrested shall without
unnecessary delay, but not later than 48 hours after the person is
arrested, take the person arrested or have him taken before some
magistrate of the county where the accused was arrested or, to
provide more expeditiously to the person arrested the warnings
described by this article, before a magistrate in any other county of
this state. The arrested person may be taken before the magistrate
in person or the image of the arrested person may be presented to the
magistrate by means of a videoconference. The magistrate shall
inform in clear language the person arrested, either in person or
through a videoconference, of the accusation against him and of any
affidavit filed therewith, of his right to retain counsel, of his
right to remain silent, of his right to have an attorney present
during any interview with peace officers or attorneys representing
the state, of his right to terminate the interview at any time, and
of his right to have an examining trial. The magistrate shall also
inform the person arrested of the person’s right to request the
appointment of counsel if the person cannot afford counsel. The
magistrate shall inform the person arrested of the procedures for
requesting appointment of counsel. If the person does not speak and
understand the English language or is deaf, the magistrate shall
inform the person in a manner consistent with Articles 38.30 and
38.31, as appropriate. The magistrate shall ensure that reasonable
assistance in completing the necessary forms for requesting
appointment of counsel is provided to the person at the same time.
If the person arrested is indigent and requests appointment of
counsel and if the magistrate is authorized under Article 26.04 to
appoint counsel for indigent defendants in the county, the magistrate
shall appoint counsel in accordance with Article 1.051. If the magistrate is not authorized to appoint counsel, the magistrate shall
without unnecessary delay, but not later than 24 hours after the
person arrested requests appointment of counsel, transmit, or cause
to be transmitted to the court or to the courts’ designee authorized
under Article 26.04 to appoint counsel in the county, the forms
requesting the appointment of counsel. The magistrate shall also
inform the person arrested that he is not required to make a
statement and that any statement made by him may be used against him.
The magistrate shall allow the person arrested reasonable time and
opportunity to consult counsel and shall, after determining whether
the person is currently on bail for a separate criminal offense,
admit the person arrested to bail if allowed by law. A record of the
communication between the arrested person and the magistrate shall be
made. The record shall be preserved until the earlier of the
following dates: (1) the date on which the pretrial hearing ends; or
(2) the 91st day after the date on which the record is made if the
person is charged with a misdemeanor or the 120th day after the date
on which the record is made if the person is charged with a felony.
For purposes of this subsection, “videoconference” means a two-way
electronic communication of image and sound between the arrested
person and the magistrate and includes secure Internet
videoconferencing.
(a-1) If a magistrate is provided written or electronic notice
of credible information that may establish reasonable cause to
believe that a person brought before the magistrate has a mental
illness or is a person with an intellectual disability, the
magistrate shall conduct the proceedings described by Article 16.22
or 17.032, as appropriate.
(b) After an accused charged with a misdemeanor punishable by
fine only is taken before a magistrate under Subsection (a) and the
magistrate has identified the accused with certainty, the magistrate
may release the accused without bond and order the accused to appear
at a later date for arraignment in the applicable justice court or
municipal court. The order must state in writing the time, date, and
place of the arraignment, and the magistrate must sign the order.
The accused shall receive a copy of the order on release. If an
accused fails to appear as required by the order, the judge of the
court in which the accused is required to appear shall issue a
warrant for the arrest of the accused. If the accused is arrested
and brought before the judge, the judge may admit the accused to bail, and in admitting the accused to bail, the judge should set as
the amount of bail an amount double that generally set for the
offense for which the accused was arrested. This subsection does not
apply to an accused who has previously been convicted of a felony or
a misdemeanor other than a misdemeanor punishable by fine only.
(c) When a deaf accused is taken before a magistrate under this
article or Article 14.06 of this Code, an interpreter appointed by
the magistrate qualified and sworn as provided in Article 38.31 of
this Code shall interpret the warning required by those articles in a
language that the accused can understand, including but not limited
to sign language.
(d) If a magistrate determines that a person brought before the
magistrate after an arrest authorized by Article 14.051 of this code
was arrested unlawfully, the magistrate shall release the person from
custody. If the magistrate determines that the arrest was lawful,
the person arrested is considered a fugitive from justice for the
purposes of Article 51.13 of this code, and the disposition of the
person is controlled by that article.
(e) In each case in which a person arrested is taken before a
magistrate as required by Subsection (a) or Article 15.18(a), a
record shall be made of:
(1) the magistrate informing the person of the person’s
right to request appointment of counsel;
(2) the magistrate asking the person whether the person
wants to request appointment of counsel; and
(3) whether the person requested appointment of counsel.
(f) A record required under Subsection (a) or (e) may consist
of written forms, electronic recordings, or other documentation as
authorized by procedures adopted in the county under Article
26.04(a). The counsel for the defendant may obtain a copy of the
record on payment of a reasonable amount to cover the costs of
reproduction or, if the defendant is indigent, the court shall
provide a copy to the defendant without charging a cost for the copy.
(g) If a person charged with an offense punishable as a
misdemeanor appears before a magistrate in compliance with a citation
issued under Article 14.06(b) or (c), the magistrate shall perform
the duties imposed by this article in the same manner as if the
person had been arrested and brought before the magistrate by a peace
officer. After the magistrate performs the duties imposed by this
article, the magistrate except for good cause shown may release the person on personal bond. If a person who was issued a citation under
Article 14.06(c) fails to appear as required by that citation, the
magistrate before which the person is required to appear shall issue
a warrant for the arrest of the accused.
Art. 15.18. ARREST FOR OUT-OF-COUNTY OFFENSE
(a) A person
arrested under a warrant issued in a county other than the one in
which the person is arrested shall be taken before a magistrate of
the county where the arrest takes place or, to provide more
expeditiously to the arrested person the warnings described by
Article 15.17, before a magistrate in any other county of this state,
including the county where the warrant was issued. The magistrate
shall:
(1) take bail, if allowed by law, and, if without
jurisdiction, immediately transmit the bond taken to the court having
jurisdiction of the offense; or
(2) in the case of a person arrested under warrant for an
offense punishable by fine only, accept a written plea of guilty or
nolo contendere, set a fine, determine costs, accept payment of the
fine and costs, give credit for time served, determine indigency, or,
on satisfaction of the judgment, discharge the defendant, as the case
may indicate.
(a-1) If the arrested person is taken before a magistrate of a
county other than the county that issued the warrant, the magistrate
shall inform the person arrested of the procedures for requesting
appointment of counsel and ensure that reasonable assistance in
completing the necessary forms for requesting appointment of counsel
is provided to the person at the same time. If the person requests
the appointment of counsel, the magistrate shall, without unnecessary
delay but not later than 24 hours after the person requested the
appointment of counsel, transmit, or cause to be transmitted, the
necessary request forms to a court or the courts’ designee authorized
under Article 26.04 to appoint counsel in the county issuing the
warrant.
(b) Before the 11th business day after the date a magistrate
accepts a written plea of guilty or nolo contendere in a case under
Subsection (a)(2), the magistrate shall, if without jurisdiction, transmit to the court having jurisdiction of the offense:
(1) the written plea;
(2) any orders entered in the case; and
(3) any fine or costs collected in the case.
(c) The arrested person may be taken before a magistrate by
means of an electronic broadcast system as provided by and subject to
the requirements of Article 15.17.
(d) This article does not apply to an arrest made pursuant to a
capias pro fine issued under Chapter 43 or Article 45.045.
Art. 15.22. WHEN A PERSON IS ARRESTED.
A person is arrested
when he has been actually placed under restraint or taken into
custody by an officer or person executing a warrant of arrest, or by
an officer or person arresting without a warrant.
Art. 15.23. TIME OF ARREST.
An arrest may be made on any day or
at any time of the day or night.
Art. 15.24. WHAT FORCE MAY BE USED.
In making an arrest, all
reasonable means are permitted to be used to effect it. No greater
force, however, shall be resorted to than is necessary to secure the
arrest and detention of the accused.
Art. 15.25. MAY BREAK DOOR.
In case of felony, the officer may
break down the door of any house for the purpose of making an arrest,
if he be refused admittance after giving notice of his authority and
purpose.
Art. 15.26. AUTHORITY TO ARREST MUST BE MADE KNOWN.
In
executing a warrant of arrest, it shall always be made known to the
accused under what authority the arrest is made. The warrant shall
be executed by the arrest of the defendant. The officer need not
have the warrant in his possession at the time of the arrest,
provided the warrant was issued under the provisions of this Code,
but upon request he shall show the warrant to the defendant as soon
as possible. If the officer does not have the warrant in his
possession at the time of arrest he shall then inform the defendant
of the offense charged and of the fact that a warrant has been
issued. The arrest warrant, and any affidavit presented to the
magistrate in support of the issuance of the warrant, is public
information, and beginning immediately when the warrant is executed
the magistrate’s clerk shall make a copy of the warrant and the
affidavit available for public inspection in the clerk’s office
during normal business hours. A person may request the clerk to
provide copies of the warrant and affidavit on payment of the cost of
providing the copies.
Art. 15.27. NOTIFICATION TO SCHOOLS REQUIRED.
(a) A law
enforcement agency that arrests any person or refers a child to the
office or official designated by the juvenile board who the agency
believes is enrolled as a student in a public primary or secondary
school, for an offense listed in Subsection (h), shall attempt to
ascertain whether the person is so enrolled. If the law enforcement
agency ascertains that the individual is enrolled as a student in a
public primary or secondary school, the head of the agency or a
person designated by the head of the agency shall orally notify the
superintendent or a person designated by the superintendent in the
school district in which the student is enrolled of that arrest or
referral within 24 hours after the arrest or referral is made, or
before the next school day, whichever is earlier. If the law
enforcement agency cannot ascertain whether the individual is
enrolled as a student, the head of the agency or a person designated
by the head of the agency shall orally notify the superintendent or a person designated by the superintendent in the school district in
which the student is believed to be enrolled of that arrest or
detention within 24 hours after the arrest or detention, or before
the next school day, whichever is earlier. If the individual is a
student, the superintendent or the superintendent’s designee shall
immediately notify all instructional and support personnel who have
responsibility for supervision of the student. All personnel shall
keep the information received in this subsection confidential. The
State Board for Educator Certification may revoke or suspend the
certification of personnel who intentionally violate this subsection.
Within seven days after the date the oral notice is given, the head
of the law enforcement agency or the person designated by the head of
the agency shall mail written notification, marked “PERSONAL and
CONFIDENTIAL” on the mailing envelope, to the superintendent or the
person designated by the superintendent. The written notification
must include the facts contained in the oral notification, the name
of the person who was orally notified, and the date and time of the
oral notification. Both the oral and written notice shall contain
sufficient details of the arrest or referral and the acts allegedly
committed by the student to enable the superintendent or the
superintendent’s designee to determine whether there is a reasonable
belief that the student has engaged in conduct defined as a felony
offense by the Penal Code. The information contained in the notice
shall be considered by the superintendent or the superintendent’s
designee in making such a determination.
(a-1) The superintendent or a person designated by the
superintendent in the school district shall send to a school district
employee having direct supervisory responsibility over the student
the information contained in the confidential notice under Subsection
(a).
(b) On conviction, deferred prosecution, or deferred
adjudication or an adjudication of delinquent conduct of an
individual enrolled as a student in a public primary or secondary
school, for an offense or for any conduct listed in Subsection (h) of
this article, the office of the prosecuting attorney acting in the
case shall orally notify the superintendent or a person designated by
the superintendent in the school district in which the student is
enrolled of the conviction or adjudication and whether the student is
required to register as a sex offender under Chapter 62. Oral
notification must be given within 24 hours of the time of the order or before the next school day, whichever is earlier. The
superintendent shall, within 24 hours of receiving notification from
the office of the prosecuting attorney, or before the next school
day, whichever is earlier, notify all instructional and support
personnel who have regular contact with the student. Within seven
days after the date the oral notice is given, the office of the
prosecuting attorney shall mail written notice, which must contain a
statement of the offense of which the individual is convicted or on
which the adjudication, deferred adjudication, or deferred
prosecution is grounded and a statement of whether the student is
required to register as a sex offender under Chapter 62.
(c) A parole, probation, or community supervision office,
including a community supervision and corrections department, a
juvenile probation department, the paroles division of the Texas
Department of Criminal Justice, and the Texas Juvenile Justice
Department, having jurisdiction over a student described by
Subsection (a), (b), or (e) who transfers from a school or is
subsequently removed from a school and later returned to a school or
school district other than the one the student was enrolled in when
the arrest, referral to a juvenile court, conviction, or adjudication
occurred shall within 24 hours of learning of the student’s transfer
or reenrollment, or before the next school day, whichever is earlier,
notify the superintendent or a person designated by the
superintendent of the school district to which the student transfers
or is returned or, in the case of a private school, the principal or
a school employee designated by the principal of the school to which
the student transfers or is returned of the arrest or referral in a
manner similar to that provided for by Subsection (a) or (e)(1), or
of the conviction or delinquent adjudication in a manner similar to
that provided for by Subsection (b) or (e)(2). The superintendent of
the school district to which the student transfers or is returned or,
in the case of a private school, the principal of the school to which
the student transfers or is returned shall, within 24 hours of
receiving notification under this subsection or before the next
school day, whichever is earlier, notify all instructional and
support personnel who have regular contact with the student.
(e)(1) A law enforcement agency that arrests, or refers to a
juvenile court under Chapter 52, Family Code, an individual who the law enforcement agency knows or believes is enrolled as a student in
a private primary or secondary school shall make the oral and written
notifications described by Subsection (a) to the principal or a
school employee designated by the principal of the school in which
the student is enrolled.
(2) On conviction, deferred prosecution, or deferred
adjudication or an adjudication of delinquent conduct of an
individual enrolled as a student in a private primary or secondary
school, the office of prosecuting attorney shall make the oral and
written notifications described by Subsection (b) of this article to
the principal or a school employee designated by the principal of the
school in which the student is enrolled.
(3) The principal of a private school in which the student
is enrolled or a school employee designated by the principal shall
send to a school employee having direct supervisory responsibility
over the student the information contained in the confidential
notice, for the same purposes as described by Subsection (a-1) of
this article.
(f) A person who receives information under this article may not
disclose the information except as specifically authorized by this
article. A person who intentionally violates this article commits an
offense. An offense under this subsection is a Class C misdemeanor.
(g) The office of the prosecuting attorney or the office or
official designated by the juvenile board shall, within two working
days, notify the school district that removed a student to a
disciplinary alternative education program under Section 37.006,
Education Code, if:
(1) prosecution of the student’s case was refused for lack of
prosecutorial merit or insufficient evidence and no formal
proceedings, deferred adjudication, or deferred prosecution will be
initiated; or
(2) the court or jury found the student not guilty or made a
finding the child did not engage in delinquent conduct or conduct
indicating a need for supervision and the case was dismissed with
prejudice.
(h) This article applies to any felony offense and the following
misdemeanors:
(1) an offense under Section 20.02, 21.08, 22.01, 22.05, 22.07,
or 71.02, Penal Code;
(2) the unlawful use, sale, or possession of a controlled
substance, drug paraphernalia, or marihuana, as defined by Chapter
481, Health and Safety Code; or
(3) the unlawful possession of any of the weapons or devices
listed in Sections 46.01(1)-(14) or (16), Penal Code, or a weapon
listed as a prohibited weapon under Section 46.05, Penal Code.
(i) A person may substitute electronic notification for oral
notification where oral notification is required by this article. If
electronic notification is substituted for oral notification, any
written notification required by this article is not required.
(j) The notification provisions of this section concerning a
person who is required to register as a sex offender under Chapter 62
do not lessen the requirement of a person to provide any additional
notification prescribed by that chapter.
(k) Oral or written notice required under this article must
include all pertinent details of the offense or conduct, including
details of any:
(1) assaultive behavior or other violence;
(2) weapons used in the commission of the offense or
conduct; or
(3) weapons possessed during the commission of the offense
or conduct.
(l) If a school district board of trustees learns of a failure
by the superintendent of the district or a district principal to
provide a notice required under Subsection (a), (a-1), or (b), the
board of trustees shall report the failure to the State Board for
Educator Certification. If the governing body of a private primary
or secondary school learns of a failure by the principal of the
school to provide a notice required under Subsection (e), and the
principal holds a certificate issued under Subchapter B, Chapter 21,
Education Code, the governing body shall report the failure to the
State Board for Educator Certification.
(m) If the superintendent of a school district in which the
student is enrolled learns of a failure of the head of a law
enforcement agency or a person designated by the head of the agency
to provide a notification under Subsection (a), the superintendent or
principal shall report the failure to notify to the Texas Commission
on Law Enforcement.
(n) If a juvenile court judge or official designated by the
juvenile board learns of a failure by the office of the prosecuting
attorney to provide a notification required under Subsection (b) or
(g), the official shall report the failure to notify to the elected
prosecuting attorney responsible for the operation of the office.
(o) If the supervisor of a parole, probation, or community
supervision department officer learns of a failure by the officer to
provide a notification under Subsection (c), the supervisor shall
report the failure to notify to the director of the entity that
employs the officer.
Art. 18.01. SEARCH WARRANT.
(a) A “search warrant” is a
written order, issued by a magistrate and directed to a peace
officer, commanding him to search for any property or thing and to
seize the same and bring it before such magistrate or commanding him
to search for and photograph a child and to deliver to the magistrate
any of the film exposed pursuant to the order.
(b) No search warrant shall issue for any purpose in this state
unless sufficient facts are first presented to satisfy the issuing
magistrate that probable cause does in fact exist for its issuance.
A sworn affidavit setting forth substantial facts establishing
probable cause shall be filed in every instance in which a search
warrant is requested. Except as provided by Article 18.011, the
affidavit becomes public information when the search warrant for
which the affidavit was presented is executed, and the magistrate’s
clerk shall make a copy of the affidavit available for public
inspection in the clerk’s office during normal business hours.
(b-1)(1) For purposes of this article, a magistrate may
consider information communicated by telephone or other reliable
electronic means in determining whether to issue a search warrant.
The magistrate may examine an applicant for a search warrant and any
person on whose testimony the application is based. The applicant or
other person must be placed under oath before the examination.
(2) If an applicant for a search warrant attests to the
contents of an affidavit submitted by reliable electronic means, the
magistrate must acknowledge the attestation in writing on the
affidavit. If the magistrate considers additional testimony or
exhibits, the magistrate must:
(A) ensure that the testimony is recorded verbatim by
an electronic recording device, by a court reporter, or in writing;
(B) ensure that any recording or reporter’s notes are
transcribed and that the transcription is certified as accurate and
is preserved;
(C) sign, certify the accuracy of, and preserve any
other written record; and
(D) ensure that the exhibits are preserved.
(3) An applicant for a search warrant who submits
information as authorized by this subsection must prepare a proposed
duplicate original of the warrant and must read or otherwise transmit
its contents verbatim to the magistrate. A magistrate must enter
into an original search warrant the contents of a proposed duplicate
original that are read to the magistrate. If the applicant transmits
the contents by reliable electronic means, the transmission received
by the magistrate may serve as the original search warrant.
(4) The magistrate may modify a search warrant that is
submitted as described by Subdivision (3). If the magistrate
modifies the warrant, the magistrate must:
(A) transmit the modified version to the applicant by
reliable electronic means; or
(B) file the modified original and direct the applicant
to modify the proposed duplicate original accordingly.
(5) A magistrate who issues a search warrant for which
information is provided by telephone or reliable electronic means
must:
(A) sign the original documents;
(B) enter the date and time of issuance on the warrant;
and
(C) transmit the warrant by reliable electronic means
to the applicant or direct the applicant to sign the judge’s name and
enter the date and time on the duplicate original.
(6) Evidence obtained pursuant to a search warrant for
which information was provided in accordance with this subsection is
not subject to suppression on the ground that issuing the warrant in
compliance with this subsection was unreasonable under the
circumstances, absent a finding of bad faith.
(c) A search warrant may not be issued under Article 18.02(10)
unless the sworn affidavit required by Subsection (b) sets forth
sufficient facts to establish probable cause: (1) that a specific
offense has been committed, (2) that the specifically described
property or items that are to be searched for or seized constitute
evidence of that offense or evidence that a particular person
committed that offense, and (3) that the property or items
constituting evidence to be searched for or seized are located at or
on the particular person, place, or thing to be searched. Except as
provided by Subsections (d), (i), and (j), only a judge of a
municipal court of record or a county court who is an attorney
licensed by the State of Texas, a statutory county court judge, a
district court judge, a judge of the Court of Criminal Appeals,
including the presiding judge, a justice of the Supreme Court of
Texas, including the chief justice, or a magistrate with jurisdiction
over criminal cases serving a district court may issue warrants under
Article 18.02(10).
(d) Only the specifically described property or items set forth
in a search warrant issued under Subdivision (10) of Article 18.02 of
this code or property, items or contraband enumerated in Subdivisions
(1) through (9) or in Subdivision (12) of Article 18.02 of this code
may be seized. A subsequent search warrant may be issued pursuant to
Subdivision (10) of Article 18.02 of this code to search the same
person, place, or thing subjected to a prior search under Subdivision
(10) of Article 18.02 of this code only if the subsequent search
warrant is issued by a judge of a district court, a court of appeals,
the court of criminal appeals, or the supreme court.
(e) A search warrant may not be issued under Subdivision (10)
of Article 18.02 of this code to search for and seize property or
items that are not described in Subdivisions (1) through (9) of that
article and that are located in an office of a newspaper, news
magazine, television station, or radio station, and in no event may
property or items not described in Subdivisions (1) through (9) of
that article be legally seized in any search pursuant to a search
warrant of an office of a newspaper, news magazine, television
station, or radio station.
(f) A search warrant may not be issued pursuant to Article
18.021 of this code unless the sworn affidavit required by Subsection
(b) of this article sets forth sufficient facts to establish probable
cause:
(1) that a specific offense has been committed;
(2) that a specifically described person has been a victim
of the offense;
(3) that evidence of the offense or evidence that a
particular person committed the offense can be detected by
photographic means; and
(4) that the person to be searched for and photographed is
located at the particular place to be searched.
(g) A search warrant may not be issued under Subdivision (12),
Article 18.02, of this code unless the sworn affidavit required by
Subsection (b) of this article sets forth sufficient facts to
establish probable cause that a specific felony offense has been
committed and that the specifically described property or items that
are to be searched for or seized constitute contraband as defined in
Article 59.01 of this code and are located at or on the particular
person, place, or thing to be searched.
(h) Except as provided by Subsection (i) of this article, a
warrant under Subdivision (12), Article 18.02 of this code may only
be issued by:
(1) a judge of a municipal court of record who is an
attorney licensed by the state;
(2) a judge of a county court who is an attorney licensed
by the state; or
(3) a judge of a statutory county court, district court,
the court of criminal appeals, or the supreme court.
(i) In a county that does not have a municipal court of record
with a courtroom located in that county and a judge who is an
attorney licensed by the state, a county court judge who is an
attorney licensed by the state, or a statutory county court judge,
any magistrate may issue a search warrant under Article 18.02(a)(10)
or (12). This subsection is not applicable to a subsequent search
warrant under Article 18.02(a)(10).
(j) Any magistrate who is an attorney licensed by this state
may issue a search warrant under Article 18.02(10) to collect a blood
specimen from a person who:
(1) is arrested for an offense under Section 49.04, 49.045,
49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and
(2) refuses to submit to a breath or blood alcohol test.
Art. 18.02. GROUNDS FOR ISSUANCE.
(a) A search warrant may be
issued to search for and seize:
(1) property acquired by theft or in any other manner which
makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for or
commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the purposes of
insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set forth
by law;
(7) a drug, controlled substance, immediate precursor,
chemical precursor, or other controlled substance property, including
an apparatus or paraphernalia kept, prepared, or manufactured in
violation of the laws of this state;
(8) any property the possession of which is prohibited by
law;
(9) implements or instruments used in the commission of a
crime;
(10) property or items, except the personal writings by the
accused, constituting evidence of an offense or constituting evidence
tending to show that a particular person committed an offense;
(11) persons;
(12) contraband subject to forfeiture under Chapter 59 of
this code;
(13) electronic customer data held in electronic storage,
including the contents of and records and other information related
to a wire communication or electronic communication held in
electronic storage; or
(14) a cellular telephone or other wireless communications
device, subject to Article 18.0215.
(b) For purposes of Subsection (a)(13):
(1) “Electronic communication” and “wire communication”
have the meanings assigned by Article 18A.001.
(2) “Electronic customer data” and “electronic storage”
have the meanings assigned by Article 18B.001.
Art. 18.021. ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED
CHILD.
(a) A search warrant may be issued to search for and
photograph a child who is alleged to be the victim of the offenses of
injury to a child as prohibited by Section 22.04, Penal Code; sexual
assault of a child as prohibited by Section 22.011(a), Penal Code;
aggravated sexual assault of a child as prohibited by Section 22.021,
Penal Code; or continuous sexual abuse of young child or children as
prohibited by Section 21.02, Penal Code.
(b) The officer executing the warrant may be accompanied by a
photographer who is employed by a law enforcement agency and who acts
under the direction of the officer executing the warrant. The
photographer is entitled to access to the child in the same manner as
the officer executing the warrant.
(c) In addition to the requirements of Subdivisions (1), (4),
and (5) of Article 18.04 of this code, a warrant issued under this
article shall identify, as near as may be, the child to be located
and photographed, shall name or describe, as near as may be, the
place or thing to be searched, and shall command any peace officer of
the proper county to search for and cause the child to be
photographed.
(d) After having located and photographed the child, the peace
officer executing the warrant shall take possession of the exposed
film and deliver it forthwith to the magistrate. The child may not
be removed from the premises on which he or she is located except
under Subchapters A and B, Chapter 262, Family Code.
(e) A search warrant under this section shall be executed by a
peace officer of the same sex as the alleged victim or, if the
officer is not of the same sex as the alleged victim, the peace
officer must be assisted by a person of the same sex as the alleged
victim. The person assisting an officer under this subsection must
be acting under the direction of the officer and must be with the
alleged victim during the taking of the photographs.
Art. 18.03. SEARCH WARRANT MAY ORDER ARREST.
If the facts
presented to the magistrate under Article 18.02 of this chapter also
establish the existence of probable cause that a person has committed
some offense under the laws of this state, the search warrant may, in
addition, order the arrest of such person.
Art. 18.04. CONTENTS OF WARRANT.
A search warrant issued under this chapter, Chapter 18A, or Chapter 18B shall be sufficient if it
contains the following requisites:
(1) that it run in the name of “The State of Texas”;
(2) that it identify, as near as may be, that which is to
be seized and name or describe, as near as may be, the person, place,
or thing to be searched;
(3) that it command any peace officer of the proper county
to search forthwith the person, place, or thing named;
(4) that it be dated and signed by the magistrate; and
(5) that the magistrate’s name appear in clearly legible
handwriting or in typewritten form with the magistrate’s signature.
Art. 18.06. EXECUTION OF WARRANTS.
(a) A peace officer to whom
a search warrant is delivered shall execute the warrant without delay
and forthwith return the warrant to the proper magistrate. A search
warrant issued under Article 18B.354 must be executed in the manner
provided by Article 18B.355 not later than the 11th day after the
date of issuance. In all other cases, a search warrant must be
executed within three days from the time of its issuance. A warrant
issued under this chapter, Chapter 18A, or Chapter 18B shall be
executed within a shorter period if so directed in the warrant by the magistrate.
(b) On searching the place ordered to be searched, the officer
executing the warrant shall present a copy of the warrant to the
owner of the place, if he is present. If the owner of the place is
not present but a person who is present is in possession of the
place, the officer shall present a copy of the warrant to the person.
Before the officer takes property from the place, he shall prepare a
written inventory of the property to be taken. He shall legibly
endorse his name on the inventory and present a copy of the inventory
to the owner or other person in possession of the property. If
neither the owner nor a person in possession of the property is
present when the officer executes the warrant, the officer shall
leave a copy of the warrant and the inventory at the place.
Art. 18.07. DAYS ALLOWED FOR WARRANT TO RUN.
(a) The period
allowed for the execution of a search warrant, exclusive of the day
of its issuance and of the day of its execution, is: (1) 15 whole days if the warrant is issued solely to search
for and seize specimens from a specific person for DNA analysis and
comparison, including blood and saliva samples;
(2) 10 whole days if the warrant is issued under Article
18B.354; or
(3) three whole days if the warrant is issued for a purpose
other than that described by Subdivision (1) or (2).
(b) The magistrate issuing a search warrant under this chapter,
Chapter 18A, or Chapter 18B shall endorse on the search warrant the
date and hour of its issuance.
(c) If a warrant is issued to search for and seize data or
information contained in or on a computer, disk drive, flash drive,
cellular telephone, or other electronic, communication, or data
storage device, the warrant is considered to have been executed
within the time allowed under Subsection (a) if the device was seized
before the expiration of the time allowed. Notwithstanding any other
law, any data or information contained in or on a device seized may
be recovered and analyzed after the expiration of the time allowed
under Subsection (a).
Art. 18.08. POWER OF OFFICER EXECUTING WARRANT.
In the
execution of a search warrant, the officer may call to his aid any
number of citizens in this county, who shall be bound to aid in the
execution of the same.
Art. 18.09. SHALL SEIZE ACCUSED AND PROPERTY
When the
property which the officer is directed to search for and seize is
found he shall take possession of the same and carry it before the
magistrate. He shall also arrest any person whom he is directed to
arrest by the warrant and immediately take such person before the
magistrate. For purposes of this chapter, “seizure,” in the context
of property, means the restraint of property, whether by physical
force or by a display of an officer’s authority, and includes the
collection of property or the act of taking possession of property.
Art. 18.10. HOW RETURN MADE.
Not later than three whole days
after executing a search warrant, the officer shall return the search
warrant. Upon returning the search warrant, the officer shall state
on the back of the same, or on some paper attached to it, the manner
in which the warrant has been executed. The officer shall also deliver to the magistrate a copy of the inventory of the property
taken into his possession under the warrant. The failure of an
officer to make a timely return of an executed search warrant or to
submit an inventory of the property taken into the officer’s
possession under the warrant does not bar the admission of evidence
under Article 38.23. The officer who seized the property shall
retain custody of it until the magistrate issues an order directing
the manner of safekeeping the property. The property may not be
removed from the county in which it was seized without an order
approving the removal, issued by a magistrate in the county in which
the warrant was issued; provided, however, nothing herein shall
prevent the officer, or his department, from forwarding any item or
items seized to a laboratory for scientific analysis.
Art. 18.11. CUSTODY OF PROPERTY FOUND.
Property seized pursuant
to a search warrant shall be kept as provided by the order of a
magistrate issued in accordance with Article 18.10 of this code.
Art. 18.16. PREVENTING CONSEQUENCES OF THEFT
Any person has a
right to prevent the consequences of theft by seizing any personal
property that has been stolen and bringing it, with the person
suspected of committing the theft, if that person can be taken,
before a magistrate for examination, or delivering the property and
the person suspected of committing the theft to a peace officer for
that purpose. To justify a seizure under this article, there must be
reasonable ground to believe the property is stolen, and the seizure
must be openly made and the proceedings had without delay.
Art. 18.22. TESTING CERTAIN DEFENDANTS OR CONFINED PERSONS FOR
COMMUNICABLE DISEASES.
(a) A person who is arrested for a misdemeanor or felony and
who during the commission of that offense or the arrest, during a
judicial proceeding or initial period of confinement following the
arrest, or during the person’s confinement after a conviction or
adjudication resulting from the arrest causes the person’s bodily
fluids to come into contact with a peace officer, a magistrate, or an
employee of a correctional facility where the person is confined
shall, at the direction of the court having jurisdiction over the
arrested person, undergo a medical procedure or test designed to show
or help show whether the person has a communicable disease. The
court may direct the person to undergo the procedure or test on its
own motion or on the request of the peace officer, magistrate, or
correctional facility employee. If the person refuses to submit
voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. Notwithstanding any other
law, the person performing the procedure or test shall make the test
results available to the local health authority, and the local health
authority shall notify the peace officer, magistrate, or correctional
facility employee, as appropriate, of the test result. The state may
not use the fact that a medical procedure or test was performed on a
person under this article, or use the results of the procedure or
test, in any criminal proceeding arising out of the alleged offense.
Text of subsection as amended by Acts 2015, 84th Leg., R.S., Ch. 1278
(S.B. 1574), Sec. 1
(a) A person who is arrested for a misdemeanor or felony and
who during the commission of that offense or an arrest following the
commission of that offense causes an emergency response employee or
volunteer, as defined by Section 81.003, Health and Safety Code, to
come into contact with the person’s bodily fluids shall, at the
direction of the court having jurisdiction over the arrested person,
undergo a medical procedure or test designed to show or help show
whether the person has a communicable disease. The court may direct
the person to undergo the procedure or test on its own motion or on
the request of the emergency response employee or volunteer. If the
person refuses to submit voluntarily to the procedure or test, the
court shall require the person to submit to the procedure or test.
Notwithstanding any other law, the person performing the procedure or
test shall make the test results available to the local health
authority and the designated infection control officer of the entity
that employs or uses the services of the affected emergency response
employee or volunteer, and the local health authority or the
designated infection control officer of the affected employee or
volunteer shall notify the emergency response employee or volunteer
of the test result. The state may not use the fact that a medical
procedure or test was performed on a person under this article, or
use the results of the procedure or test, in any criminal proceeding
arising out of the alleged offense.
(b) Testing under this article shall be conducted in accordance
with written infectious disease control protocols adopted by the
Department of State Health Services that clearly establish procedural
guidelines that provide criteria for testing and that respect the
rights of the arrested person and the peace officer, magistrate, or
correctional facility employee.
(c) Nothing in this article authorizes a court to release a test result to a person other than a person specifically authorized by
this article, and Section 81.103(d), Health and Safety Code, does not
authorize that disclosure.
(d) In this article, “correctional facility” means:
(1) any place described by Section 1.07(a)(14), Penal Code;
or
(2) a “secure correctional facility” or “secure detention
facility” as those terms are defined by Section 51.02, Family Code.
