Can a Texas judge give the required guilty-plea warnings by playing a video instead of speaking to the defendant?

Texas AG Opinion JM-980: Can a Judge Use a Video for Guilty-Plea Warnings?

Plain-English summary

Before a Texas court can accept a guilty plea or a no-contest plea, the judge has to give the defendant a set of warnings called admonishments: the range of punishment for the offense, the fact that the prosecutor's sentencing recommendation is not binding, the limits on appealing after a plea bargain, and, for people who are not U.S. citizens, the warning that a plea can lead to deportation. The judge also has to be satisfied the defendant is mentally competent and is pleading freely and voluntarily. These warnings exist because a guilty plea is not just an admission; it is effectively a conviction, so the law wants to be sure the defendant truly understands what is happening.

A county attorney asked a practical, cost-saving question: instead of the judge reciting these warnings live to each defendant, could the court play a videotape of the judge giving the admonitions, and then have the defendant and the lawyer sign a form saying they understood? The Attorney General said no.

The law does give courts some flexibility. A 1987 amendment let judges deliver the admonitions either orally or in writing, and if in writing, the defendant and attorney sign a statement confirming they understood. The county attorney's video idea tried to borrow the signed-statement mechanics from that written option. But the Attorney General concluded a videotape is not the functional equivalent of the written procedure. Written admonitions sit in front of the defendant, who can take time to read and reflect, and can point out to the lawyer or judge any word or phrase he does not understand. A video plays and moves on. It does not offer that same chance to pause, study, and ask.

Backing this up, the opinion leaned on the constitutional weight courts give this stage. The U.S. Supreme Court in Boykin v. Alabama held that a judge cannot accept a guilty plea without an affirmative showing on the record that the plea was intelligent and voluntary, and that courts must canvass the matter with the accused to be sure of a full understanding. Texas courts have echoed the importance of the judge's own participation, observing the defendant in open court, hearing him speak, engaging in a colloquy. The Texas Court of Criminal Appeals has also been reluctant to bless methods of giving admonitions that the statute does not authorize. Put together, showing a videotape does not satisfy article 26.13.

Currency note

This opinion was issued in 1988. 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 current law before relying on any specific rule, deadline, or remedy mentioned here.

Article 26.13 of the Code of Criminal Procedure has been amended several times since 1988, and Texas has since developed rules for remote and electronic court proceedings that did not exist then. The core constitutional principle from Boykin v. Alabama, that a guilty plea requires an affirmative record showing it was knowing and voluntary, remains good law, but the specific statutory list of admonitions and the permissible methods of delivering them should be checked against the current version of article 26.13 and current Court of Criminal Appeals case law rather than the 1988 text described here.

Who this opinion affected (as of 1988)

Trial courts taking guilty and no-contest pleas: The opinion told them they could not substitute a videotape of the judge for live or written admonitions under article 26.13.

Criminal defendants: The opinion protected their right to admonitions delivered in a form (oral or written) that lets them actually understand the consequences before pleading.

County and district officials looking to streamline pleas: The opinion foreclosed the videotape shortcut as a way to satisfy the statute.

Common questions

Can a Texas judge play a video of the admonishments instead of giving them in person?
No. In this opinion the Attorney General concluded a videotape of the judge giving the admonitions does not satisfy article 26.13, because it is not the functional equivalent of the written procedure the statute allows.

How is a videotape different from the written admonitions the law permits?
Written admonitions give the defendant time to study and reflect and a chance to identify words he does not understand for his lawyer or the judge. The Attorney General concluded a video does not provide that same opportunity.

Why does the judge's live participation matter so much?
Because a guilty plea is effectively a conviction, courts require an affirmative record that the plea was intelligent and voluntary (Boykin v. Alabama), and Texas courts have stressed the judge's own participation in confirming the defendant's understanding (Whitten v. State; Lucero v. State).

What are the admonishments under article 26.13?
They include the range of punishment, that the prosecutor's recommendation is not binding, the appeal limits after a plea bargain, and, for noncitizens, possible immigration consequences; the court must also find the defendant competent and the plea voluntary.

Background and statutory framework

Article 26.13 provides that prior to accepting a plea of guilty or nolo contendere the court shall admonish the defendant of: (1) the range of punishment attached to the offense; (2) that the prosecutor's punishment recommendation is not binding on the court, with the court to inquire about any plea bargain and, if one exists, to inform the defendant whether it will follow or reject the agreement before any finding, and to allow withdrawal of the plea if it rejects the agreement; (3) that if the punishment assessed does not exceed what the prosecutor recommended and the defendant agreed to, the trial court must give permission before the defendant may appeal any matter except those raised by pretrial written motions; and (4) that if the defendant is not a United States citizen, a plea may result in deportation, exclusion from admission, or denial of naturalization. Subsection (b) bars accepting the plea unless the defendant is mentally competent and the plea is free and voluntary; subsection (c) makes substantial compliance sufficient unless the defendant affirmatively shows he was unaware of the consequences and was misled or harmed. Subsection (d), added by House Bill 95 effective August 31, 1987 (Acts 1987, 70th Leg., ch. 443), provides that the court may make the admonitions orally or in writing, and if in writing must receive a statement signed by the defendant and his attorney that he understands the admonitions and is aware of the consequences, with oral admonitions required if the defendant cannot or will not sign.

In the submitted scenario, the court would require the defendant and his attorney to sign a written statement that the defendant understood the admonitions and was aware of the consequences of his plea. The Attorney General emphasized the constitutional importance of the plea stage. In Boykin v. Alabama, 395 U.S. 238, 242, the United States Supreme Court held it was error, plain on the face of the record, to accept a guilty plea without an affirmative showing that it was intelligent and voluntary, explaining that a guilty plea is more than a confession because it is itself a conviction, that a waiver of the privilege against self-incrimination, the right to jury trial, and the right to confront accusers cannot be presumed from a silent record, and that what is at stake demands the utmost solicitude in canvassing the matter with the accused to ensure a full understanding of the plea and its consequences. Boykin, 395 U.S. at 242-44.

The substantial-compliance provision of subsection (c) has been applied to the sufficiency of the language used rather than the method of giving the admonitions. Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979). In Whitten, on rehearing, the court cited Boykin and concluded that the statute then in force and due process mandated the judge's participation. 587 S.W.2d at 158-59. The importance of the court's actual participation is reflected in Lucero v. State, 502 S.W.2d 750 (Tex. Crim. App. 1973), where the court, rejecting a claim that it failed to determine the defendant's competence, noted that it had inquired of counsel as to sanity, was able to observe the defendant in open court, hear him speak, note his demeanor, and engage in a colloquy with him regarding his pleas. Lucero, 502 S.W.2d at 753. Although these cases predated the 1987 amendment, they reflect the importance courts place on the judge's participation in determining that the defendant fully understands the plea and its consequences.

Without addressing the validity of the 1987 amendment, the Attorney General concluded that a videotape showing of the judge giving the admonitions is not the functional equivalent of the written procedure allowed by subsection (d). Written admonitions allow time for study and reflection and an opportunity for the defendant to identify for his lawyer and the judge any words or phrases he does not understand. Further, the Court of Criminal Appeals has shown reluctance to approve any method of giving the admonitions not authorized by article 26.13. The use of a video presentation does not satisfy article 26.13.

Citations

Statutory authority:

• Code of Criminal Procedure art. 26.13 (admonitions required before accepting a plea of guilty or nolo contendere; substantial compliance; oral or written admonitions)

Cases:

• Boykin v. Alabama, 395 U.S. 238
• Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979)
• Lucero v. State, 502 S.W.2d 750 (Tex. Crim. App. 1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-980
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0980.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

November 15, 1988

Honorable David T. Garcia
Brooks County Attorney
P. O. Box 557
Falfurrias, Texas 78355

Opinion No. JM-980

Re: Whether a court may satisfy the "admonishment" requirements of article 26.13 of the Code of Criminal Procedure by showing the defendant a video tape (RQ-1554)

Dear Mr. Garcia:

You ask whether a court may satisfy the admonishment requirements of article 26.13 of the Code of Criminal Procedure before accepting a plea of guilty by showing the defendant a video tape presentation of the judge giving the admonitions.

Article 26.13 provides:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

(1) the range of the punishment attached to the offense;

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere;

(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial; and

(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

(d) The court may make the admonitions required by this article either orally or in writing. If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea. If the defendant is unable or refuses to sign the statement, the court shall make the admonitions orally. (Emphasis added.)

Prior to the amendment that resulted in the addition of subsection (d), the statute was explicit in requiring "the court shall admonish the defendant." House Bill 95 added subsection (d) of article 26.13, effective August 31, 1987, providing that the court may make the admonitions orally or in writing. Acts 1987, 70th Leg., ch. 443, at 2021.

In the video tape scenario you have submitted you state "that the court would require the defendant and his attorney to sign a written statement that the defendant understood the admonitions and is aware of the consequences of his pleas."

In Boykin v. Alabama the United States Supreme Court held, "It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." 395 U.S. 238, 242. The court emphasized the importance of this stage of the plea of guilty proceeding. In Boykin, the court stated:

A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009. Admissibility of a confession must be based on a 'reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.' Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 1774, 1786, 12 L.Ed.2d 908. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana, 368 U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.Ed.2d 207; Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326), and forestalls the spin-off of collateral proceedings that seek to probe murky memories. (Emphasis added.)

Boykin, 395 U.S. 238, 242-44.

The "substantial compliance" provision of subsection (c) of article 26.13 has been applied to the sufficiency of the language used rather than the method of giving the admonitions. Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979). In Whitten, the state urged that the defendant had heard the prosecutor give a portion of the admonitions that had been omitted by the judge. On rehearing, the court cited Boykin and concluded that the statute then in force and due process mandated the judge's participation. 587 S.W.2d 156, 158-59.

The importance of the court's actual participation in the admonitions is reflected in Lucero v. State, 502 S.W.2d 750 (Tex. Crim. App. 1973). In Lucero four cases were tried together before the court upon pleas of guilty. On appeal it was urged that the court had failed to determine the mental competence of the appellant in each case. In rejecting the appellant's contention, the court stated:

In the instant cases the court once inquired of appellant's counsel as to appellant's sanity, was able to observe him in open court, to hear him speak and to note his demeanor, and to engage in a colloquy with him regarding his pleas. At no time was the issue of appellant's sanity ever raised. In light of the circumstances of these particular cases, the pleas being taken together, we cannot conclude the court failed to satisfy the requirements of Article 26.13, Vernon's Ann.C.C.P. . . . (Emphasis added.)

Lucero, 502 S.W.2d 750, 753.

While the foregoing cases predated the 1987 amendment, they reflect the importance the courts have placed on the judge's participation in determining that the defendant has a full understanding of what the plea connotes and of its consequences.

Without addressing the validity of the 1987 amendment, we conclude that the video tape showing of the judge giving the admonitions is not the functional equivalent of the written procedure allowed by subsection (d). The written admonitions allow time for study and reflection and an opportunity for the defendant to identify for his lawyer and the judge any words or phrases he does not understand. Further, the Court of Criminal Appeals has demonstrated a reluctance to approve any method of giving the admonitions not authorized by article 26.13. The utilization of the video presentations does not satisfy the requirements of article 26.13.

SUMMARY

A court may not satisfy the requirements of article 26.13 of the Code of Criminal Procedure before accepting a plea of guilty or nolo contendere by showing the defendant a video tape presentation of the judge giving the admonitions.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General