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Texas Criminal Procedure
South Texas College of Law Houston
Crump, Susan Waite

I.             General Overview
Bill of Rights – – First Amendments to the Constitution
                Relevant Amendments to Texas Criminal Procedure: 4th Amend, 6th Amend, 8th Amend, 14th      Amend (5th Amend due process applies to federal, 14th amend due process applies to states)
4th Amendment – – “Unreasonable search and seizure”
 
**Texas can extend protection and grant greater rights beyond the federal courts protection (i.e., Texas can grant greater rights to a Δ than a federal court). Federal gov’t is the floor for protection (Texas cannot offer lesser rights). Can be afforded both Texas and Federal protection!
 
A.           DUTIES OF PROSECUTORS
TCCP Arts. 2.01-2.02
§ 2.01. DUTIES OF DISTRICT ATTORNEYS. 
Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
 
§ 2.02. DUTIES OF COUNTY ATTORNEYS. 
The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. He shall represent the State in cases he has prosecuted which are appealed.
 
B.           JURISDICTION OF TEXAS COURTS
TCCP Arts 4.01, 4.03-4.08; 4.11; 4.14
§ 4.01. WHAT COURTS HAVE CRIMINAL JURISDICTION. 
The following courts have jurisdiction in criminal actions:
1. The Court of Criminal Appeals;                                             
2. Courts of appeals;                                                         
3. The district courts;                                                       
4. The criminal district courts;                                              
5. The magistrates appointed by the judges of the district courts of Bexar County, Dallas County, Tarrant County, or Travis County that give preference to criminal cases and the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County;
6. The county courts;                                                         
7. All county courts at law with criminal jurisdiction;                       
8. County criminal courts;                                                    
9. Justice courts;                                                            
10. Municipal courts; and                                                    
11. The magistrates appointed by the judges of the district courts of LBK County.
 
§ 4.03. COURTS OF APPEALS. 
The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
 
§ 4.04. COURT OF CRIMINAL APPEALS.
Sec. 1 The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The court and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments.
Sec. 2 The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for such discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.
 
§ 4.05. JURISDICTION OF DISTRICT COURTS. 
District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of this code.
 
§ 4.06. WHEN FELONY INCLUDES MISDEMEANOR. 
Upon the trial of a felony case, the court shall hear and determine the case as to any grade of offense included in the indictment, whether the proof shows a felony or a misdemeanor.
 
§ 4.07. JURISDICTION OF COUNTY COURTS.  
The county courts shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars.
 
§ 4.08. APPELLATE JURISDICTION OF COUNTY COURTS
The county courts shall have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction
 
§ 4.11. JURISDICTION OF JUSTICE COURTS. 
                (1) Justices of the peace shall have original jurisdiction in criminal cases:
                                (a) Punishable by fine only or punishable by:
                                                (i) A fine; and
                                                (ii) As authorized by statute, a sanction not consisting of confinement or                                                         imprisonment; or
                                (b) Arising under Ch. 106, Alcoholic Beverage Code, that do not include confinement as                                           an authorized sanction.
                (2) The fact that a conviction in a justice court has as a consequence the imposition of a penalty         or sanction by an agency or entity other than the court, such as a denial, suspension, or      revocation of a privilege, does not affect the original jurisdiction of the justice court.
 
§ 4.14. JURISDICTION OF MUNICIPAL COURT.
                (1) A municipal court, including a municipal court of record, shall have exclusive original      jurisdiction within the territorial limits of the municipality in all criminal cases that:
                                (a)  Arise under the ordinances of the municipality; and
                                (b) Are punishable by a fine not to exceed:
                                                (i) $2,000 in all cases arising under municipal ordinances that govern fire safety,                                         zoning, or public health and sanitation, including dumping of refuse; or
                                                (ii) $500 in all other cases arising under a municipal ordinance
                (2) The municipal court shall have concurrent jurisdiction with the justice court of a precinct in        which the municipality is located in all criminal cases arising under state law that:
                                (a) Arise within the territorial limits of the municipality and are punishable by fine only,                                        as defined in Subsection (c) of this article; or
                                (b) Arise under Chapter 106, Alcoholic Beverage Code, and do not include confinement                                           as an authorized sanction.         
                (3) In this article, an offense which is punishable by “fine only” is defined as an offense that is              punishable by fine and such sanctions, if any, as authorized by statute not consisting of     confinement in jail or imprisonment.
                (4) The fact that a conviction in a municipal court has as a consequence the imposition of a  penalty or sanction by an agency or entity other than the court, such as a denial, suspension, or      revocation of a privilege, does not affect the original jurisdiction of the municipal court.
                (5) The municipal court has jurisdiction in the forfeiture and final judgment of all bail bonds and       personal bonds taken in criminal cases of which the court has jurisdiction.
 
C.            CLASSIFICATION OF CRIMES
Texas Penal Code 12.03-12.04
§ 12.03. CLASSIFICATION OF MISDEMEANORS
                (1) Misdemeanors are classified according to the relative seriousness of the offense into three             categories:
                                (a) Class A misdemeanors;
                                (b) Class B misdemeanors;
                                (c) Class C misdemeanors;
                (2) An offense designated a misdemeanor in this code without specification as to punishment or        category A is a Class c misdemeanors
                (3) Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage
 
§ 12.04. CLASSIFICATION OF FELONIES
                (1) Felonies are classified according to the relative seriousness of the offense into 5 categories;
                                (a) Capital felonies;
                                (b) Felonies of the 1st degree;
                                (c) Felonies of the 2nd degree;
                                (d) Felonies of the 3rd degree;
                                (e) State jail felonies
                (2) An offense designated a felony in this code without specification as to category is a state jail          felony.
 
D.           PUNISHMENTS
Texas Penal Code 12.21-12.23; 12.31-12.35
§ 12.21. CLASS A MISDEMEANOR
                An individual adjudged guilty of a Class A misdemeanor shall be punished by:
                1. A fine not to exceed $4,000.00;
                2. Confinement in jail for a term not to exceed one year; or 
                3. Both such fine and confinement
 
§ 12.22. CLASS B MISDEMEANOR
                An individual adjudged guilty of a Class B misdemeanor shall be punished by:
                1. A fine not to exceed $2,000.00;
                2. Confinement in jail for a term not to exceed 180 days; or 
                3. Both such fine and confinement
 
§ 12.23. CLASS C MISDEMEANOR
                An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to         exceed $500.
 
§ 12.31. CAPITAL FELONY
                (a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death            penalty shall be punished by imprisonment in the institutional division for life without parole or          by death. An individual adjudged guilty of a capital felony in a case in which the state does not               seek the death penalty shall be punished by imprisonment in the institutional division for life         without parole
                (b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be        informed that a sentence of life imprisonment without parole or death is mandatory on                conviction of a capital felony. In a capital felony trial in which the state does not seek the death  penalty, prospective jurors shall be informed that the state is not seeking the death penalty and      that a sentence of life imprisonment without parole is mandatory on conviction of the capital     felony.
 
§ 12.32. 1ST DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 1st degree shall be punished by imprisonment        in the institutional division for life or for any term of not more than 99 years or less than 5 years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 1st degree may           be punished by a fine not to exceed $10,000
 
§ 12.33. 2nd DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 2nd degree shall be punished by     imprisonment in the institutional division for any term of not more than 20 years or less than 2       years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 2nd degree may         be punished by a fine not to exceed $10,000
 
§ 12.34. 3rd DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 3rd degree shall be punished by      imprisonment in the institutional division for any term of not more than 10 years or less than 2       years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 3rd degree may          be punished by a fine not to exceed $10,000
 
§ 12.35. STATE JAIL FELONY PUNISHMENT
                (a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall        be punished by confinement in a state jail for any term of not more than two years or less than       180 days
                (b) In addition to confinement, an individual adjudged guilty of a state jail felony may be        punished by a fine not to exceed $10,000.
                (c) An individual adjudged guilty of a state jail felony shall be punished for a 3rd degree felony if          it is shown on the trial of the offense that:
                                (1) A deadly weapon as defined by Section 1.07 was used or exhibited during the                                        commission of the offense or during immediate flight following the commission of the                                             offense, and that the individual used or exhibited the deadly weapon or was a party to                                               the offense and knew that a deadly weapon would be used or exhibited; or
                                (2) The individual has previously been finally convicted of any felony:
                Continued…

on, or      revocation of a privilege, does not affect the original jurisdiction of the municipal court.
                (5) The municipal court has jurisdiction in the forfeiture and final judgment of all bail bonds and       personal bonds taken in criminal cases of which the court has jurisdiction.
 
C.            CLASSIFICATION OF CRIMES
Texas Penal Code 12.03-12.04
§ 12.03. CLASSIFICATION OF MISDEMEANORS
                (1) Misdemeanors are classified according to the relative seriousness of the offense into three             categories:
                                (a) Class A misdemeanors;
                                (b) Class B misdemeanors;
                                (c) Class C misdemeanors;
                (2) An offense designated a misdemeanor in this code without specification as to punishment or        category A is a Class c misdemeanors
                (3) Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage
 
§ 12.04. CLASSIFICATION OF FELONIES
                (1) Felonies are classified according to the relative seriousness of the offense into 5 categories;
                                (a) Capital felonies;
                                (b) Felonies of the 1st degree;
                                (c) Felonies of the 2nd degree;
                                (d) Felonies of the 3rd degree;
                                (e) State jail felonies
                (2) An offense designated a felony in this code without specification as to category is a state jail          felony.
 
D.           PUNISHMENTS
Texas Penal Code 12.21-12.23; 12.31-12.35
§ 12.21. CLASS A MISDEMEANOR
                An individual adjudged guilty of a Class A misdemeanor shall be punished by:
                1. A fine not to exceed $4,000.00;
                2. Confinement in jail for a term not to exceed one year; or 
                3. Both such fine and confinement
 
§ 12.22. CLASS B MISDEMEANOR
                An individual adjudged guilty of a Class B misdemeanor shall be punished by:
                1. A fine not to exceed $2,000.00;
                2. Confinement in jail for a term not to exceed 180 days; or 
                3. Both such fine and confinement
 
§ 12.23. CLASS C MISDEMEANOR
                An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to         exceed $500.
 
§ 12.31. CAPITAL FELONY
                (a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death            penalty shall be punished by imprisonment in the institutional division for life without parole or          by death. An individual adjudged guilty of a capital felony in a case in which the state does not               seek the death penalty shall be punished by imprisonment in the institutional division for life         without parole
                (b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be        informed that a sentence of life imprisonment without parole or death is mandatory on                conviction of a capital felony. In a capital felony trial in which the state does not seek the death  penalty, prospective jurors shall be informed that the state is not seeking the death penalty and      that a sentence of life imprisonment without parole is mandatory on conviction of the capital     felony.
 
§ 12.32. 1ST DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 1st degree shall be punished by imprisonment        in the institutional division for life or for any term of not more than 99 years or less than 5 years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 1st degree may           be punished by a fine not to exceed $10,000
 
§ 12.33. 2nd DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 2nd degree shall be punished by     imprisonment in the institutional division for any term of not more than 20 years or less than 2       years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 2nd degree may         be punished by a fine not to exceed $10,000
 
§ 12.34. 3rd DEGREE FELONY PUNISHMENT
                (a) An individual adjudged guilty of a felony of the 3rd degree shall be punished by      imprisonment in the institutional division for any term of not more than 10 years or less than 2       years
                (b) In addition to imprisonment, an individual adjudged guilty of a felony of the 3rd degree may          be punished by a fine not to exceed $10,000
 
§ 12.35. STATE JAIL FELONY PUNISHMENT
                (a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall        be punished by confinement in a state jail for any term of not more than two years or less than       180 days
                (b) In addition to confinement, an individual adjudged guilty of a state jail felony may be        punished by a fine not to exceed $10,000.
                (c) An individual adjudged guilty of a state jail felony shall be punished for a 3rd degree felony if          it is shown on the trial of the offense that:
                                (1) A deadly weapon as defined by Section 1.07 was used or exhibited during the                                        commission of the offense or during immediate flight following the commission of the                                             offense, and that the individual used or exhibited the deadly weapon or was a party to                                               the offense and knew that a deadly weapon would be used or exhibited; or
                                (2) The individual has previously been finally convicted of any felony:
                Continued…