Failure to appear is prohibited by Texas Penal Code 38.10. This law says that “a person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.”
There are defenses to a charge of failure to appear. However, a conviction carries serious penalties. Depending on the underlying charge, it can even be a felony.
A bench warrant is a court order for someone’s arrest.
1. What is a bench warrant?
A bench warrant is a court order for someone’s arrest. The order is issued by a judge. It targets someone who is believed to have violated a court order.
Requiring a criminal defendant to appear at a hearing is an example of a court order. If the defendant fails to appear, it violates that court order. The judge can issue a bench warrant. Police will look for the defendant. When they locate the suspect, police will arrest the person. He or she will be held in jail until a hearing is scheduled.
2. What is the crime of failure to appear?
Failure to appear is the crime of knowingly missing a court appearance.1 It is also known as bail jumping.
Criminal defendants who have already been arrested can commit the offense. Once charged for the initial offense, they can be released on bail or personal recognizance. This lets the defendant stay out of jail while their case is resolved.
Their pre-trial release, though, has numerous terms. One of them is to appear at all mandatory court dates. If the defendant knowingly or intentionally misses one, he or she commits the crime of failure to appear.
Example: Clyde is arrested for driving under the influence (DUI). He is released without posting bail, on personal recognizance. His arraignment is the next day, but he decides not to go.
A good attorney is essential to fighting the charge.
3. Are there any defenses?
2 defenses to a charge of failure to appear are:
- the appearance was for community supervision, parole, or an intermittent sentence, and
- the defendant had a reasonable excuse for their failure to appear.2
The standard for a reasonable excuse, though, is very high. It is not a reasonable excuse to miss a court date if:
- a defense attorney tells the defendant not to appear,3
- a defense lawyer says there is a “good chance” the date will change,4 or
- the defendant has another court date at the same time in a different courthouse, and does not notify the judge of the conflict.5
4. How is a bench warrant different from other warrants?
A bench warrant is different from the two other types of warrants in Texas:
- arrest warrant, and
- search warrant.
It is different from a search warrant by giving police the power to detain someone. Search warrants only give police the authority to search for evidence.
The differences from an arrest warrant are much more subtle. Arrest warrants are also issued by judges. They also give police the power to detain someone.
However, arrest warrants let police detain someone because there is probable cause to believe they broke the law. Bench warrants are issued when someone is believed to have violated a court order.
Bench warrants can be issued rather than an arrest warrant for:
- failure to pay child support or alimony,
- a defendant missing a mandatory court date,
- a juror missing jury duty or their trial, and
- contempt of court.
5. How can it be quashed?
Quashing a bench warrant means clearing it from the court system. It is also called “recalling” a warrant.”
A defendant or defense lawyer can quash a bench warrant by appearing in court and resolving the alleged violation. This has to be done before the warrant is executed.6
6. How is it executed?
A bench warrant is executed by police. They seek out the person named in the warrant. When they find the person, they make an arrest.
Once the defendant is arrested, he or she will be brought to the judge for a hearing. They will be held in jail if the judge is not available.
7. What are the penalties for failure to appear?
Failure to appear is a crime. People who are charged can face some significant penalties. Criminal defendants accused of failing to appear face sanctions in proportion to their underlying offense7:
| If the underlying offense… | Failure to appear will be charged as a… | Potential jail sentence | Maximum fine |
| …is a felony | Third degree felony | 2- 10 years | $10,000 |
| …only carries a fine | Class C misdemeanor | None | $500 |
| …is any other type of offense | Class A misdemeanor | Up to 1 year | $4,000 |
This is in addition to the underlying offense.
Legal References:
- Texas Penal Code 38.10.
- Texas Penal Code 38.10.
- Gallegos v. State, 828 S.W.2d 577 (Tex. App. 1992).
- Barrera v. State, 978 S.W.2d 665 (Tex. App. 1998).
- Garcia v. State, No. 13-17-00079-CR (Tex. App. 2018).
- Texas Code of Criminal Procedure 45.014.
- Texas Penal Code 38.10.