How to Handle a Bench Warrant or Failure to Appear in Texas

Failing to appear for court is a crime in Texas. Missing court can result in a bench warrant being issued for your arrest and a separate criminal charge.

If you are arrested or formally charged with a crime in Texas, you usually can post a bond or even be released from jail on your own recognizance (based on your promise to appear) until your trial. If you post a bond or are released on your own recognizance, you must appear for all court dates such as arraignment, hearings, trial, and sentencing. If you do not appear for a court date, the judge can issue a warrant or your arrest and charge you with the crime referred to in the Texas statutes as bail jumping or failure to appear. These warrants are known as a "bench warrant" because judges issue them in the courtroom when it's clear that the defendant has not appeared as required. (Tex. Penal Code Ann. §38.10.)

A bench warrant literally directs the police to arrest you and bring you before the court. When police arrest a person on a bench warrant, the person typically will be taken to jail and held there until the judge is available for a hearing. In addition to appearing before the judge, you may face a new criminal case involving the charge of failure to appear.

Penalties for Bail Jumping and Failure to Appear

The crime of bail jumping or failure to appear is a misdemeanor or a felony in Texas, depending on the underlying crime with which the defendant was charged.

  • If the defendant is charged with failure to appear for court in a case involving a crime punishable only by a fine, the failure to appear is a Class C misdemeanor.
  • If the underlying crime is a misdemeanor and the possible punishment includes a jail sentence, the failure to appear is a Class A misdemeanor, which is a more serious misdemeanor in Texas.
  • Finally, if the underlying offense for which the defendant is required to appear in court is a felony, the failure to appear is a third degree felony.

A Class C misdemeanor in Texas is punishable by a fine up to $500 but not by jail time. Tex. (Penal Code Ann. §§12.03, 12.23.) A Class A misdemeanor is punishable by up to one year in jail, a fine up to $4000, or both. (Tex. Pen. Code §12.21.) A third degree felony is punishable by two to ten years in prison. (Tex. Pen. Code §12.34.)

In addition, if you fail to appear for a jury trial, a separate Texas law allows the court to charge you for the costs of convening the jury panel on the day you failed to appear. (Tex. Code Crim. Proc. Ann. art. 45.026.)

Defenses to Bail Jumping and Failure to Appear

The Texas statute defining bail jumping and failure to appear lists specific defenses to this crime. Defendants who have a “reasonable excuse” for failing to appear should not be found guilty of the crime. A reasonable excuse involves serious circumstances that prevented the defendant from appearing in court, such as an automobile accident, being in the hospital, death of a family member, or not receiving proper notice of the court date. Forgetting or being mistaken about the court date, a lack of transportation or child care, or having to work probably will not be considered reasonable excuses. This defense also requires that the defendant report to the court as soon as he is able because he must have a reasonable excuse for being absent from the time he is required to appear until he does appear or is apprehended.

Another defense to the crime of bail jumping and failure to appear is a claim that the requirements of probation or parole, or a jail sentence in another case, prevented the defendant from appearing at court. For instance, if the defendant was in jail in another county or state or was unable to appear in court because of a required meeting with a probation or parole officer, the defendant likely would not be convicted of bail jumping or failure to appear.

A judge may also excuse a defendant who fails to appear for a jury trial from paying the cost of impaneling the jury. The defendant must present a “good cause” as to why the court should excuse this obligation. Like the “reasonable excuse” defense, the defendant must show that serious circumstances like illness, a death in the family, or some other emergency prevented his appearance.

What To Do If You Fail to Appear or Learn a Bench Warrant Has Been Issued

A bench warrant is a warrant for your arrest and allows the police to take you into custody almost anywhere at any time. The police can come to your home, your work or place of business, or a social event and arrest you. You also can be arrested if a police officer discovers the warrant during a traffic stop for even a minor traffic violation.

A conviction for bail jumping or failure to appear becomes part of your criminal record and can affect your conditions of release if you are charged with another crime in the future. The conviction will appear in any background checks for employment or housing. A conviction for failure to appear can even be used in the trial for the underlying criminal charge as evidence of consciousness of guilt. The prosecutor can argue that you fled the jurisdiction, for instance, because you knew you were guilty of the underlying crime and would likely be convicted.

If you learn that a court has issued a bench warrant for your arrest, you should contact an attorney immediately for legal advice. An experienced criminal defense attorney can contact the court on your behalf, possibly arrange for you to appear in front of the judge rather than be taken into custody, and assist you in preparing a defense or addressing sentencing if you are formally charged with bail jumping or failure to appear.

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