Can someone be convicted of a crime in Texas without being present in court?

Plain-English summary

The Bexar County Criminal District Attorney, Joe Gonzales, asked the Attorney General two questions: whether a criminal district attorney has authority to prosecute federal officials who violate the criminal provisions of the Election Code, and whether a jury can convict such people in their absence (in absentia).

The AG did not answer the first question. Whether prosecution authority exists in a given situation depends on a series of factual determinations, and the request gave only a bare recitation of the facts. Because the opinion process does not resolve fact questions, the AG narrowed its response to the legal functions of the office. The AG noted that whether a district attorney may prosecute anyone for a crime in Texas turns on a factual analysis of probable cause for the alleged violation; once probable cause is found, a warrant or capias may issue, and if served, the defendant must appear before the court.

On the second question, the AG gave a clear legal answer. Starting from the prosecutor's duty under article 2.01 "not to convict, but to see that justice is done," and the principle that the accused must be presented with the charges and able to confront the accusers, the AG turned to the constitutional and statutory right to be present. The Sixth Amendment guarantees the accused the right to be informed of the charges and to confront the witnesses, and article 33.03 of the Code of Criminal Procedure requires the defendant to be personally present at a felony trial, and at a misdemeanor trial where any part of the punishment is jail. Article 33.03 allows a trial to continue if the defendant voluntarily absents himself, but only after he has pleaded to the charge or after the jury has been selected. Quoting an appellate decision, the AG explained that while a defendant may waive the Sixth Amendment right to be present at virtually any point after trial commences, under article 33.03 the right is unwaivable until the jury has been selected. The bottom line: in the circumstances described, a conviction in absentia would not be permitted because of that unwaivable right.

What this means for you

This describes what the 2021 opinion holds about criminal-procedure rights. Criminal procedure can change, and any real case turns on its own facts, so confirm current law and consult a lawyer before relying on this.

Prosecutors

The opinion restates that the threshold for prosecuting any crime is a factual probable-cause analysis, and that the AG will not decide, in the abstract, whether authority to prosecute exists in a particular fact pattern. It also reminds prosecutors of the duty under article 2.01 to seek justice rather than merely convictions.

Defendants and defense attorneys

The opinion holds that a defendant's right to be personally present is unwaivable until the jury is selected, so a trial cannot proceed to a conviction in absentia before that point. After the jury is selected (or after a plea), a voluntary absence can allow the trial to continue.

People following election-law prosecution questions

The opinion does not decide whether a Texas district attorney can prosecute federal officials under the Election Code; it treats that as a fact-dependent question outside the opinion process.

Common questions

Q: Can a Texas court convict a defendant who isn't there?
A: Not before the jury is selected. Under article 33.03, the right to be present is unwaivable until that point, so a conviction in absentia in the circumstances described would not be allowed.

Q: When can a trial continue without the defendant?
A: Article 33.03 lets a trial proceed to conclusion if the defendant voluntarily absents himself after pleading to the charge, or after the jury has been selected when the trial is before a jury.

Q: Did the AG say a district attorney can prosecute federal officials over election law?
A: No. The AG declined that question because it depends on facts the opinion process does not resolve, and answered only the legal point about presence at trial.

Q: What is a prosecutor's basic duty in Texas?
A: Under article 2.01, a prosecutor's primary duty is "not to convict, but to see that justice is done."

Background and statutory framework

The opinion rests on the right of a criminal defendant to be present at trial. The Sixth Amendment guarantees the accused the right to be informed of the charges and to confront the witnesses against him. The Code of Criminal Procedure builds out the in-person nature of Texas criminal trials through provisions on juries, confrontation, warrants, and bail (articles 1.15, 1.25, 15.03, 15.07, 15.16, 15.17, and 17.01–.49), and article 14.06(a) requires that an arrested person be taken before a magistrate. Article 33.03 is the central provision: it requires the defendant's personal presence at a felony trial and at a jailable misdemeanor trial, while allowing the trial to continue if the defendant voluntarily absents himself after pleading or after the jury is selected. The opinion relies on Duggan v. State for the prosecutor's role as a fiduciary to fairness and on Morrison v. State for the rule that the presence right is unwaivable until the jury has been selected.

Citations and references

Constitutional and statutory provisions:

• U.S. Const. amend. VI (notice of charges; confrontation)
• Tex. Code Crim. Proc. art. 33.03 (defendant must be personally present); art. 2.01 (prosecutor's duty); art. 14.06

Key cases:

• Duggan v. State, 778 S.W.2d 465 (Tex. Crim. App. 1989) (the prosecutor is a fiduciary to fundamental principles of fairness)
• Morrison v. State, 480 S.W.3d 647 (Tex. App.—El Paso 2015, no pet.) (the right to be present is unwaivable until the jury is selected)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0357
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0357.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 22, 2021

The Honorable Joe Gonzales
Bexar County Criminal District Attorney
101 West Nueva
San Antonio, Texas 78205

Opinion No. KP-0357

Re: Jurisdiction of a criminal district attorney to prosecute federal officials who violate criminal provisions of the Election Code (RQ-0376-KP)

Dear Mr. Gonzales:

You ask two questions about the authority of a criminal district attorney to prosecute federal officials in certain circumstances, and whether a jury can convict such individuals in absentia.¹

Determining whether authority exists to prosecute in the circumstances you describe would require multiple factual determinations, but you provide only a rudimentary recitation of the facts and circumstances surrounding the alleged criminal violation. See Request Letter at 2. This office does not resolve factual issues in the opinion process, and our response is therefore narrowly focused on the legal functions of the criminal district attorney in Bexar County. See Tex. Att'y Gen. Op. Nos. GA-0186 (2004) at 6 (stating that this office does not resolve questions of fact); JC-0020 (1999) at 2 (stating that factual disputes may not be resolved in the opinion process).

As to your second question, article 2.01 of the Code of Criminal Procedure states: "[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done." TEX. CODE CRIM. PROC. art. 2.01. This is the mantra of district attorney offices throughout Texas and is often quoted in trainings as a reminder of the core value of a prosecutor. At a fundamental level, a discussion of justice never occurs without mentioning the concept of "fairness." Both the Texas and federal criminal justice systems are built on principles to provide the opportunity for justice and fairness to prevail. The Court of Criminal Appeals, in Duggan v. State, said it best:

As a trustee of the State's interest in providing fair trials, the prosecutor is obliged to illuminate the court with the truth of the cause, so that the judge and jury may properly render justice. Thus, the prosecutor is more than a mere advocate, but a fiduciary to fundamental principles of fairness.

778 S.W.2d 465, 468 (Tex. Crim. App. 1989).

Inherent in those principles is the requirement that the accused be presented with charges and the opportunity to confront those who made the accusations. The Sixth Amendment to the United States Constitution provides: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation [and] to be confronted with the witnesses against him . . . ." U.S. CONST. amend. VI; see also TEX. CODE CRIM. PROC. arts. 1.15 ("Jury in Felony"), 1.25 ("Confronted by Witnesses"), 15.03 ("Magistrate may issue warrant or summons"), 15.07 ("Warrant issued by other magistrate"), 15.16 ("How warrant is executed"), 15.17 ("Duties of Arresting Officer and Magistrate"), 17.01–.49 ("Bail"). These laws of procedure lay out the requirement for the essential piece of Texas's criminal justice system: a defendant must be brought before a court in person to be confronted with the crimes alleged. In the case of a felony charged or a misdemeanor when the punishment involves imprisonment, a defendant is required to stand before the jury or court and announce his plea of guilt or innocence. Code of Criminal Procedure article 33.03 speaks directly to the question presented here:

In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.

TEX. CODE CRIM. PROC. art. 33.03. Morrison v. State further details the necessity of an appearance by the defendant: "although a defendant may waive his Sixth Amendment right to be present in the courtroom virtually any time after a trial commences, under [a]rticle 33.03, an accused's right to be present at his trial is unwaivable until such a time as the jury has been selected." 480 S.W.3d 647, 657 (Tex. App.—El Paso 2015, no pet.) (citation and footnote omitted). Without this initial requirement, neither justice nor fairness can be found to follow.

Therefore, whether a criminal district attorney may prosecute an accused for any crime in Texas depends solely on a factual analysis of the existence of probable cause for the violation alleged. After a finding of probable cause, a warrant or capias may issue, and if served on the defendant, the defendant must appear before the court. See TEX. CODE CRIM. PROC. art. 14.06(a). Thus, conviction in absentia in the circumstances you describe would not be permitted due to the unwaivable right set forth in article 33.03 of the Code of Criminal Procedure.

¹ See Letter from Honorable Joe Gonzales, Bexar Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 19, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0376KP.pdf ("Request Letter").

S U M M A R Y

Determining whether authority exists to prosecute in any specific situation requires multiple factual determinations, which are outside the scope of the opinion process of this office.

The Sixth Amendment to the U.S. Constitution and article 33.03 of the Code of Criminal Procedure establish a right of the accused to be present in the courtroom through the conclusion of trial proceedings. Under article 33.03, an accused's right to be present at his trial is unwaivable even by the accused until such a time as the jury has been selected.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA SUTARWALLA
Deputy Attorney General for Legal Counsel

JOSHUA RENO
Deputy Attorney General for Criminal Justice

VIRGINIA K. HOELSCHER
Chair, Opinion Committee