Abstract
More than Semantics: The Capias, Arrest Warrant, and Capias Pro Fine
12-Hour Regional Judges Program
Academic Year 2008
Overview:
A lack of definitions in the Code of Criminal Procedure compounded by inconsistent use of terminology
by appellate courts has resulted in great confusion surrounding the difference between a capias, an arrest
warrant, and a capias pro fine. While the issuance of each writ results in a person being arrested, the
circumstances, procedures, and authority to issue each writ differs. More than a matter of semantics,
failure to discriminate between the various applications of each writ impacts the administration of justice
and potentially the rights of defendants. HB 3060 seeks to end much of the confusion surrounding the use
of the three writs by conforming to the original chronological chapter structure of the Code of Criminal
Procedure as written in 1965. Critical chapters amended by HB 3060 include Chapter 15 (Arrest Under
Warrant), Chapter 17 (Bail), Chapter 23 (Capias), Chapter 43 (Execution of Judgment) and Chapter 45
(Justice and Municipal Courts) Collectively, the amendments in HB 3060 results in a meaningful
delineation between arrest warrants (issued by magistrates), capias issued by trial judges prior to
judgment pursuant to Chapter 23, capias issued by trial judges after judgment pursuant to Chapter 43, and
capias pro fines issued by trial judges pursuant to Chapter 43 and 45.
Key Statutes:
Texas Code of Criminal Procedure
Chapter 15 - Arrest under Warrant
Article 15.18 - Arrest for Out-of-County Offense
Chapter 17 – Bail
Article 17.19 – Surety may obtain Warrant
Chapter 23 – The Capias
Article 23.01 – Definition of a “Capias”
Article 23.031 – Issuance of Capias in Electronic For
Article 23.04 - Capias and Summons in Misdemeanor Cases
Article 23.05 – Capias after Surrender of Forfeiture
Chapter 43 – Execution of Judgment
Article 43.015 – Definitions of “Capias” and “Capias Pro Fine”
Article 43.021 - Capias and Capias Pro Fine in Electronic Form
Article 43.03 – Payment of Fine
Article 43.04 – If Defendant is Absent
Article 43.05 – Capias Pro Fine Shall Recite
Article 43.06 – Capias Pro Fine May Issue to Any County
Article 43.07 – Execution for Fine and Costs
Article 43.08 – Further Enforcement of Judgment
Article 43.09 – Fine Discharged
Article 43.091 – Waiver of Fine and Cost
Chapter 45 – Procedures for Justice and Municipal Courts
Article 45.014 - Warrant of Arrest
Article 45.045 – Capias Pro Fine
Article 45.046 – Commitment
Article 45.0491 – Waiver of Payment of Fines and Costs for Indigent Defendants
Key Cases:
Tate v. Short, 401 U.S. 395 (1971) – A court who has convicted a defendant of a fine-only offense
may not commit an indigent defendant to jail on a capias pro fine without first providing the
defendant an alternative means of discharging the judgment.
Sharp v. State, 677 S.W.2d 513 (Tex. Crim. App. 1984) – A capias may not be issued by a clerk
unless acting under the direction of a judge has determined probable cause.
Crane v. Texas, 759 F.2d 412 (5th Cir. 1985) – A capias may be issued upon the filing of an
appropriate misdemeanor charging instrument (either an information or a complaint).
Secondary Sources:
Attorney General Opinions MW-386 (1981) and JC-246 (2000) - Both opinions explain that
Article 45.049, Code of Criminal Procedure contains a provision similar to Article 43.09, Code of
Criminal Procedure, but more specific in that it governs community service in satisfaction of fine
or costs in municipal and justice courts.