Texas Attorney General Opinion: LO89-41 Page: 3 of 3
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6.i.O..a W nugn varmer
May 4, 1989
The exact time for arraignment is not prescribed by
statute. It would appear that the arraignment may lawfully
be held at any time prior to trial so long as two days have
elapsed since a copy of the indictment was served on the
defendant if the charge is by indictment, unless there is a
waiver by the defendant or the defendant is out on bail.
Code Crim. Proc. art. 26.03. iu Wood y. State, 515 S.W.2d
300 (Tex. Crim. App. 1974). The arraignment may take place
even at the trial stage after the jury has been sworn so
long as it is not done in the presence of the jury.
Thomson v. State, 447 S.W.2d 920 (Tex, Crim. App. 1969).
See generally 22 Tex. Jur.3d Crinnl .Lw 55 2403-08.
Officer Atkins' letter evinces a concern that delay in
arraigning a hospitalized prisoner might possibly violate
civil rights, Our research indicates that the principal
untoward consequence of such a delay would be that the
admissibility of a confession would possibly be thrown into
question when made by a prisoner who had not been appointed
counsel or who had not been adequately informed of the
charges against him. See, e.g.. Recent Decisions, Delay in
Arraignment Only an Element to be Considered in Determining
Voluntariness of Defendant's Confession in a Prosecution by
the State, 8 S. Tex. L.J. 125 (1965-66).
We note also that articles 14.06 and 15.17 of the Code
of Criminal Procedure provide that a person arrested be
taken "without unnecessary delay" before a magistrate and
specifically require that the person be informed at that
proceeding of the charges against him and of his right to
counsel. That proceeding is distinct, at least, in the
statutory scheme, from the arraignment under chapter 26 of
the code, and is required, again, to be performed "without
unnecessary delay" after the arrest. Since you do not ask
about compliance with articles 14.06 and 15.17 with respect
to hospitalized prisoners, we do not address that issue.
Very truly yours,
Assistant Attorney General
APPROVED: Sarah Woelk, Chief
Letter Opinion Section
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO89-41, text, 1989; (texashistory.unt.edu/ark:/67531/metapth276822/m1/3/: accessed December 14, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.