Which court can issue a capias in a Texas misdemeanor case, and when?

Plain-English summary

A capias is a writ a criminal court issues to a peace officer, telling the officer to arrest a person accused of an offense and bring them before the court. Its job is to secure the defendant's presence at a proceeding. The Nueces County District Attorney, Mark Gonzalez, told the Attorney General that some judges were reluctant to issue a capias in a misdemeanor case before the accused had been arrested, because they believed they had no jurisdiction until commitment or bail. He asked whether a trial court can issue a capias in a misdemeanor case on the filing of an information or complaint, and, more precisely, whether the phrase "after commitment or bail and before trial" in article 23.01 limits when a capias may issue or instead just identifies which court may issue it.

The AG read the two articles together. Article 23.04 says that in misdemeanor cases the capias or summons "shall issue from a court having jurisdiction of the case on the filing of an information or complaint." Article 23.01 defines a capias as a writ "issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial." Using the last-antecedent canon (the rule that a qualifying phrase usually attaches to the nearest words it can sensibly modify), the AG concluded the phrase "after commitment or bail and before trial" describes the judge and the court, not the timing of issuance. The absence of a comma before that phrase reinforced reading it as modifying the nearest words rather than the more distant word "issued."

The AG also looked at chapter 23 as a whole. Several other articles in the chapter tie capias issuance to a post-bail or post-commitment setting, and the Code of Criminal Procedure places chapter 23 inside the unnumbered subpart titled "After Commitment or Bail and Before the Trial." Although a heading does not by itself change a statute's meaning, it can inform legislative intent. Putting the canon and the context together, the AG concluded that both articles 23.01 and 23.04 identify the court that may issue a capias, after commitment or the posting of bail, rather than fixing the precise moment of issuance. The practical upshot: the judge of the court that obtains jurisdiction of a misdemeanor case when the information or complaint is filed may issue a capias after commitment or bail and before trial.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify the current text of Code of Criminal Procedure articles 23.01 and 23.04 and any later cases before relying on this conclusion.

What the opinion meant for those who asked

The opinion resolved a statutory-reading dispute for prosecutors and trial judges. For the district attorney who asked, the reading at the time was that articles 23.01 and 23.04 are about which court has authority to issue a capias, not a rule that bars issuance until some later stage. For judges who had been declining to issue a capias before commitment or bail on jurisdictional grounds, the opinion explained that the court obtains jurisdiction when the information or complaint is filed (consistent with Texas Constitution article V, section 12(b)), and that the "after commitment or bail and before trial" language describes the issuing court rather than postponing issuance. The AG grounded the conclusion in the last-antecedent canon and chapter 23's placement in the Code, and framed it as the better harmonization of the two articles.

Common questions

Q: What is a capias?
A: It is a writ a criminal court issues to any peace officer, commanding the officer to arrest a person accused of an offense and bring them before the court. The AG noted its purpose is to secure the defendant's presence at a proceeding.

Q: Did the AG say a court can issue a misdemeanor capias before the accused is arrested or posts bail?
A: The AG concluded that articles 23.01 and 23.04 identify which court may issue a capias (the court with jurisdiction of the case), not the moment of issuance, and that chapter 23 generally operates in a post-commitment or post-bail setting. The court gains jurisdiction when the information or complaint is filed, and the judge of that court may issue a capias after commitment or bail and before trial.

Q: Why did the wording matter so much?
A: Because the placement of the phrase "after commitment or bail and before trial" could be read either as limiting when a capias issues or as describing the issuing judge. The AG applied the last-antecedent canon and pointed to the lack of a comma to read it as describing the court and judge, which harmonizes the two articles and avoids making part of article 23.04 superfluous.

Q: Would the other reading have caused problems?
A: The AG thought so. Reading "on the filing of an information or complaint" as fixing when a capias issues could seem to require a capias in every misdemeanor case even without probable cause, and could limit issuance to the filing moment and not afterward, results the AG viewed as inconsistent with the probable-cause requirement for an arrest.

Background and statutory framework

The question turned on two provisions of the Code of Criminal Procedure: article 23.01(1)-(2), defining a capias and describing the judge who issues it, and article 23.04, governing misdemeanor capias and summons issuance. The AG applied standard statutory-construction authority (Gunn v. McCoy; LTTS Charter Sch., Inc. v. C2 Constr., Inc.; In re Xerox Corp.) and Government Code section 311.011(a), then the last-antecedent canon (Spradlin v. Jim Walter Homes, Inc.; Zachry Constr. Corp. v. Port of Houston Auth.; Sullivan v. Abraham, on commas and the canon). Reading chapter 23 as a whole (Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm'n), the AG pointed to articles 23.03(a), 23.05(a), 23.10, 23.12, and 23.14, and to the Code's organization placing chapter 23 in the "After Commitment or Bail and Before the Trial" subpart (In re State ex rel. Guarino; TIC Energy & Chem., Inc. v. Martin on headings). The harmonizing reading drew on In re United Servs. Auto. Ass'n and on Texas Constitution article V, section 12(b), which provides that presentment of an information invests the court with jurisdiction, with Rodgers v. State cited for the probable-cause requirement.

Citations and references

Statutory and constitutional provisions:

• Tex. Code Crim. Proc. ch. 23 (capias; arts. 23.01, 23.03, 23.04, 23.05, 23.10, 23.12, 23.14)
• Tex. Gov't Code § 311.011 (statutory construction; grammar and common usage)
• Tex. Const. art. V, § 12 (presentment invests jurisdiction)

Cases:

• Gallegos v. State, 971 S.W.2d 626 (Tex. App.-San Antonio 1998, pet. ref'd)
• Gunn v. McCoy, 554 S.W.3d 645 (Tex. 2018); LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73 (Tex. 2011); In re Xerox Corp., 555 S.W.3d 518 (Tex. 2018)
• Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000); Zachry Constr. Corp. v. Port of Houston Auth., 449 S.W.3d 98 (Tex. 2014); Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm'n, 518 S.W.3d 318 (Tex. 2017); In re State ex rel. Guarino, 64 S.W.3d 597 (Tex. App.-Houston [1st Dist.] 2001, no pet.); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016)
• In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010); Rodgers v. State, 500 S.W.3d 682 (Tex. App.-Fort Worth 2016, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0321
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0321.pdf

Original opinion text

August 3, 2020

The Honorable Mark A. Gonzalez
Nueces County District Attorney
901 Leopard, Room 206
Nueces County Courthouse
Corpus Christi, Texas 78401-3681

Opinion No. KP-0321

Re: Whether in misdemeanor cases the trial court has authority to issue a capias on the filing of an information or complaint under article 23.04, Code of Criminal Procedure (RQ-0331-KP)

Dear Mr. Gonzalez:

You ask whether in misdemeanor cases the trial court has authority to issue a capias on the filing of an information or complaint under article 23.04, Code of Criminal Procedure.[1] In chapter 23, a capias is a writ from a court directed to any peace officer, commanding the officer "to arrest a person accused of an offense and bring the arrested person before that court." TEX. CODE CRIM. PROC. art. 23.01(2) (defining capias "[i]n this chapter"). The purpose of a capias "is to secure the presence of a defendant at a proceeding against him." Gallegos v. State, 971 S.W.2d 626, 628 (Tex. App.-San Antonio 1998, pet. ref'd).

Your questions implicate articles 23.01 and 23.04 of the Code of Criminal Procedure. Article 23.04 provides that "[i]n misdemeanor cases, the capias or summons shall issue from a court having jurisdiction of the case on the filing of an information or complaint." TEX. CODE CRIM. PROC. art. 23.04 (emphasis added). Article 23.01 defines capias, in part, as "a writ that is . . . issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial." Id. art. 23.01(1) (emphasis added). You state that some judges are reluctant to issue a capias in a misdemeanor case when the accused has not been arrested, "based on their belief that they have no jurisdiction prior to commitment or bail." Brief at 1. You wish to know whether a trial court has authority to issue a capias in a misdemeanor case on the filing of an information or complaint even when the accused has not been arrested or posted bail. Request Letter at 1. You ask whether in subarticle 23.01(1), "the qualifying phrase 'after commitment or bail and before trial' modifies 'issued' or 'a judge of the court having jurisdiction of the case.'" Brief at 2. In essence, the issue is whether article 23.01 should be construed as limiting when a capias may issue or as identifying the court that may issue it.

When construing a statute, courts attempt to discern and give effect to the Legislature's intent. Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018). They rely on the language the Legislature chose as the truest manifestation of legislative intent. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011). Courts construe a statute "using well-established interpretive principles to construe the statutory language." In re Xerox Corp., 555 S.W.3d 518, 522 (Tex. 2018). Statutory words and phrases "shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE § 311.011(a). The "last-antecedent" canon of construction, also called the "nearest reasonable referent,"[2] counsels "that a qualifying phrase in a statute [ordinarily] must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000); Zachry Constr. Corp. v. Port of Houston Auth., 449 S.W.3d 98, 107 (Tex. 2014) ("As a rule, a modifier . . . applies to the nearest reasonable referent." (footnote and citation omitted)).

Subarticle 23.01(1) defines a capias as:

a writ that is: (1) issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge . . . .

TEX. CODE CRIM. PROC. art. 23.01(1). For the phrase "after commitment or bail and before trial," the nearest reasonable referent is "having jurisdiction of a case," which in turn modifies "judge of the court." Applying the last-antecedent canon, the subarticle identifies who may issue the writ, being the judge with jurisdiction at that stage of the criminal proceedings. The lack of a comma or other break before the phrase "after commitment or bail and before trial" reinforces this reading as modifying the nearest reasonable referent rather than the more remotely located word "issued" at the beginning of the subsection. See Sullivan v. Abraham, 488 S.W.3d 294, 297 (Tex. 2016) (stating that "[p]roperly placed commas [c]ould cancel the last antecedent canon and vice versa" (quotation marks omitted)).

We must, however, also examine the language in the "context of the statute as a whole." Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm'n, 518 S.W.3d 318, 326 (Tex. 2017). Other provisions in chapter 23 appear to support the conclusion that a capias may only issue after commitment or the setting of bail. See, e.g., TEX. CODE CRIM. PROC. arts. 23.05(a) (requiring issuance of capias upon declaration of a bail forfeiture or when a surety surrenders a defendant), 23.10 (authorizing an officer making a felony arrest to take bail as provided by article 17.21), 23.12 (requiring court in bailable felony cases to set the amount of bail and then endorse upon the capias the amount of bail required), 23.14 (authorizing an officer making a misdemeanor arrest under a capias to take a bail bond); see also id. art. 23.03(a) (requiring issuance of a capias in felony cases "after bail has been set or denied").

Furthermore, the Code of Criminal Procedure is organized into subparts that are not numbered but are titled according to the stage or nature of criminal proceedings, including "Arrest, Commitment and Bail," "After Commitment or Bail and Before the Trial" and "Trial and Its Incidents." See generally Acts of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 317-18. Chapter 23 is located in the subpart titled "After Commitment or Bail and Before the Trial." Act of May 27, 1965 at 318; In re State ex rel. Guarino, 64 S.W.3d 597, 600 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (observing that "After Commitment or Bail and Before the Trial" includes chapters 19 through 31). While a statutory heading does not limit or expand the plain meaning of a statute's language, "the heading can inform the inquiry into the Legislature's intent." TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 75 (Tex. 2016). Because the context of chapter 23 suggests it applies in a post-commitment or post-bail setting, we believe article 23.01 should be similarly construed. Thus, article 23.01 identifies the court that may issue a capias, after commitment or the posting of bail.

Against this backdrop, we consider article 23.04. That article provides: "In misdemeanor cases, the capias or summons shall issue from a court having jurisdiction of the case on the filing of an information or complaint." TEX. CODE CRIM. PROC. art. 23.04. Applying the last-antecedent canon, the phrase "on the filing of an information or complaint" identifies who may issue the capias or summons, being the court having jurisdiction of the case on the filing of an information or complaint, not when the capias may issue. This interpretation harmonizes articles 23.01 and 23.04 and is consistent with the context of chapter 23 generally. See In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 311 (Tex. 2010) (observing the general rule that, where possible, courts construe statutes to harmonize them with other relevant laws, not to find conflict). It further avoids a construction that renders any part of article 23.04 superfluous. See TEX. CONST. art. V, § 12(b) ("The presentment of an indictment or information to a court invests the court with jurisdiction of the cause."). What's more, if we concluded that "on the filing of an information or complaint" identifies when the capias may issue, such a construction could seemingly require a capias to issue in all misdemeanor cases, even if the judge determines that no probable cause exists, and it could limit the time at which a court could issue a capias (i.e., "only upon the filing" and not thereafter). But see Rodgers v. State, 500 S.W.3d 682, 684 (Tex. App.-Fort Worth 2016, no pet.) ("An officer must . . . have probable cause for an arrest." (citation omitted)).

In summary, chapter 23 generally governs post-bail and post-commitment settings. Articles 23.01 and 23.04 both identify the court that may issue a capias under those provisions, after commitment or the posting of bail.

[1] See Letter and Brief from Honorable Mark A. Gonzalez, Nueces Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 4, 2020) ("Request Letter" and "Brief" respectively).

[2] See generally Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 152-53 (2012).

S U M M A R Y

A capias is a writ from a criminal court directed to any peace officer, commanding the officer to arrest a person accused of an offense and bring the arrested person before that court. Chapter 23 generally applies to post-bail and post-commitment settings. Construed within the context of chapter 23, articles 23.01 and 23.04 identify the court that may issue a capias, after commitment or the posting of bail. Thus, the judge of a court that obtains jurisdiction of a misdemeanor case upon the filing of an information or complaint may issue a capias after commitment or bail and before trial.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee