If you think you may have active alias warrants outstanding, either because you missed a recent court date or you forgot about one a long time ago, we can help. We can usually arrange to have warrants lifted within a matter of hours of your contracting with us. If you have a whole slew of them, we will work with you to get them all lifted, and the underlying charges adjudicated, so you can stop worrying about arrest. We may also be willing to help you overcome a capias pro fine (sometimes referred to as a “capias warrant”), but this will require additional fees, and you will bear an evidentiary burden you must be able to support.
The Capias Pro Fine
A capias pro fine is a post-judgment enforcement mechanism for unpaid fines and/or court costs.
Though the “capias pro fine” has been expressly authorized for use in courts governed by Chapter 45 since 1999, it was undefined in the Texas Code of Criminal Procedure until 2007.
The issuance of a capias pro fine results in an arrest, but it is neither an arrest warrant, nor is it a capias.
Converting a fine and/or court costs to a term of confinement when a defendant is unable to pay violates the defendant’s constitutional rights.
The 14th Amendment requires that defendants accused of fine-only offenses be provided “alternative means” of discharging the judgment to avoid incarceration (via time-payment plans or discharge through community service.) Tate v. Short, 401 U.S. 395 (1971). See “Pay or Lay: Tate v. Short Revisited”, The Recorder, 12:3 (March 2003).
A capias pro fine is a writ:
(1) issued by a court having jurisdiction of a case after judgment and sentence for unpaid fines; and
(2) directed to any peace officer of the State of Texas commanding the officer to arrest a person convicted of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ.
If a defendant fails to satisfy a judgment according to its terms, the capias pro fine, as defined in Article 43.015, Texas Code of Criminal Procedure, may be issued for the defendant’s arrest. A capias pro fine may be issued in electronic form.
A capias pro fine may be issued for the arrest and commitment of a defendant convicted of either a misdemeanor or felony, or found in contempt where the penalty includes a fine.
A capias pro fine shall recite the judgment and sentence and command the peace officer to immediately bring the arrested person to court. A capias pro fine authorizes a peace officer to place the defendant in jail until the business day following the date of the defendant’s arrest if the defendant cannot be brought before the court immediately.
A capias pro fine may be issued to any county in the State and shall be executed as in other cases, but no bail shall be taken.
A capias pro fine may issue simultaneously with civil enforcement of the judgment (i.e., execution).
When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that either:
(a) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or
(b) the defendant is indigent and: (1) has failed to make a good faith effort to discharge the fine and costs under Article 45.049, Texas Code of Criminal Procedure (community service); and (2) could have discharged the fine under Article 45.049, Texas Code of Criminal Procedure, (community service) without experiencing any undue hardship.
A certified copy of the judgment, sentence, and order is sufficient to authorize confinement.
The court should set out a period of time between eight and 24 hours as the period the defendant must remain in jail to satisfy not less than $50 of the fine and costs owed.
Requisites of a Bail Bond
A bail bond must be made payable to the State of Texas; it must recite that defendant and surety, if any, bind themselves that defendant will appear before the proper court or magistrate to answer the accusation against him or her; it must state whether the defendant is charged with a felony or misdemeanor; it must be signed by name or with the mark of the defendant and surety, if any, with a mailing address for each; it must state the time and place, when and where the defendant binds himself or herself to appear; it must state the court or magistrate before whom to appear; it must state that the defendant is bound to appear before any court or magistrate before whom the matter may be pending at any time and place required under law or by any court or magistrate; it must state it is conditioned that the defendant and sureties, if any, will pay all necessary and reasonable expenses incurred by any and all sheriffs or other peace officers in re-arresting the defendant if failure to appear before the court or magistrate named in the bond at the time stated therein; and that such expense shall be in addition to the principal amount of the bond.
It may set any reasonable conditions that will assure the appearance of the defendant.
If there is only one surety, he/she/it must be worth at least double the amount of bail set less exempted, encumbered, or indebted property.
A surety must be a resident of this state. A corporate surety must have a power of attorney designating an authorized agent on file.
A minor may not be a surety.
A person who has signed as a surety on a bond and is in default is disqualified to sign as a surety as long as he or she is in default.
Warrants
Warrants, in contrast to other writs such as the capias and capias pro fine, are issued primarily by judges in their capacity as magistrates.
There is one notable exception to this rule in Texas. Municipal judges and justices of the peace have authority to issue warrants of arrest for fine-only misdemeanors filed in their court pursuant to Article 45.014, Code of Criminal Procedure.
As a magistrate, a municipal judge has authority to issue warrants of arrest for offenses that are outside of municipal court jurisdiction, such as Class A and B misdemeanors and felonies.
A magistrate’s authority for issuing warrants of arrest is found in Chapter 15 of the Code of Criminal Procedure. Article 2.09, Code of Criminal Procedure, lists Texas’ magistrates. Included in that list are municipal judges. A magistrate’s authority is county wide. Gilbert v. State, 493 S.W.2d 783 (Tex. Crim. App. 1973) and Ex parte Clear, 573 S.W.2d. 224 (Tex. Crim. App. 1978).
A “warrant of arrest” is a written order from a magistrate directed to a peace officer commanding the officer to take the body of the person accused of an offense to be dealt with according to law.
An arrest warrant may be issued: with probable cause supported by oath or affirmation; and when a verbal order of arrest is proper; when a person swears under oath that another has committed an offense against the laws of the State; or in any case in which the Code of Criminal Procedure permits the issuance of an arrest warrant.
The arrest warrant issues in the name of “The State of Texas”; names the person to be arrested, if known, or reasonably describes the person to be arrested including any or all of the following: nickname or “street” name; age; gender; height and weight; identifying marks; and ethnic origin. It alleges the commission of some offense against the laws of the State; and is signed by a magistrate with his or her office named in the body of the warrant or in connection with the officer’s signature.
An arrest warrant must also be supported by an affidavit of probable cause stating: the name of the accused, if known, and if not known, a reasonably definite description; the time and place of the commission of the offense, as definitely as can be stated by the affiant; and sufficient facts to support a finding of probable cause that the person named therein: committed the offense charged; within the period covered by the statute of limitations.
The Capias
Like an arrest warrant, a capias results in the seizure of a person. A capias, however, cannot be issued by a magistrate. It can only be issued by a judge.
Chronologically, an arrest warrant is normally issued before the commencement of criminal proceedings, while the capias is issued after the commencement of formal criminal proceedings.
In the Texas Code of Criminal Procedure there are only three instances where a capias is utilized:
(1) in instances occurring after commitment or bail and before trial (“capias” as defined in Chapter 23);
(2) in instances occurring after judgment and sentence when the court seeks to have the defendant brought before the court (a “capias” as defined in Chapter 43); and
(3) in instances occurring after a forfeiture of bail is declared by the court or a surety surrenders a defendant (Chapter 23).
Thus, a “capias” in Chapter 23 by definition is not the same as a “capias” in Chapter 43. Neither writ is synonymous with the capias pro fine.
A “capias” as defined in Chapter 23, is a writ that is:
(1) issued by a judge of a court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge; and
(2) directing any peace officer in Texas to arrest the person named therein and bring the person before that court immediately, or on a day stated in the order.
A capias, as defined in Chapter 23, must: Issue in the name of “The State of Texas”; name the person whose arrest is ordered or, if the name is unknown, a description; specify which penal offense the person is accused of committing; state the name of the court to which and the time when it is returnable; and contain the date and an official attestation by the issuing authority.
A capias may be issued by the court in misdemeanor cases upon the filing of an information or complaint. A capias may be issued in electronic form for a person’s failure to appear before a court or to comply with a court order.
A capias shall be issued when a bail forfeiture is declared.
A “capias” as defined in Chapter 43 is a writ that is:
(1) issued by a court having jurisdiction of a case after judgment and sentence; and
(2) directed to any peace officer of the State of Texas commanding the officer to arrest a person convicted of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ.
The court may issue a capias, as defined in Chapter 43, when a judgment and sentence have been rendered against a defendant and the defendant is absent. A capias, issued pursuant to Chapter 43, may be issued in electronic form. A capias may be issued to any county in the State and shall be executed as in other cases, but no bail shall be taken.