Bail Jumping and Failure to Appear: Texas Penal Code §38.10

The Texas Bail Jumping and Failure to Appear law allows the state to prosecute people who intentionally or knowingly skipped a court date without a legal reason.

Many people call Failure to Appear “bail jumping,” but bail jumping may or may not be charged as a separate offense. We frequently see this offense charged in municipal courts and in certain counties. Most state prosecutors do not pursue this charge, likely because skipping bail already usually results in a warrant and an increase in bail amount, if not an outright revocation.

To obtain a criminal conviction instead of just a warrant for skipping bail, the state must prove that you were released from custody on condition that you subsequently appear, and you intentionally or knowingly failed to appear, in accordance with the terms of your release.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.10. The law was not updated in 2023. In fact, this law has not been amended since 1993.

The Penal Code classifies the Texas Bail Jumping and Failure to Appear law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Bail Jumping and Failure to Appear below.

What is the current Texas law about Bail Jumping and Failure to Appear?

The current Texas law defines the offense of Bail Jumping and Failure to Appear in Penal Code Section §38.10 as follows:^[1]

(a) 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.

(b) It is a defense to prosecution under this section that the appearance was incident to community supervision, parole, or an intermittent sentence.

(c) It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release.

The key words in the offense are intentionally or knowingly. This mens rea requirement means that if you miss court by accident, it is not a criminal offense.

Sub-sections 38.10(b) and (c) provide a defense to prosecution:

(b) It is a defense to prosecution under this section that the appearance was incident to community supervision, parole, or an intermittent sentence.

(c) It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release.

Is it a crime to miss court?

It depends. In Texas, the Bail Jumping and Failure to Appear law makes it a crime to miss court only if you missed it knowingly or intentionally, as described above. Also, there are certain defenses to prosecution, including one that you had a “reasonable excuse for his failure to appear in accordance with the terms of his release” as described in the above section.

How can I be charged with a Bail Jumping and Failure to Appear offense in Texas?

You can be charged with Bail Jumping and Failure to Appear if the state’s attorneys believe that you skipped out on bail or otherwise failed to appear at a scheduled court date, but only if they believe you did it knowingly or intentionally. The prosecutors must charge that each of the following elements of the Bail Jumping and Failure to Appear law (and ultimately prove them in court to get a conviction):

• you were lawfully released from custody, with or without bail;
• on the condition that you appear back in court;
• you intentionally or knowingly,
• failed to appear in accordance with the terms of your release

See Yuncevich v. State, 626 S.W.2d 784, 785 (Tex. Crim. App. 1982).

What is the statute of limitation for Bail Jumping and Failure to Appear in Texas?

Misdemeanor level Bail Jumping and Failure to Appear charges have a two-year limitations period.^[2] Felony level offenses have a three-year limitations period.^[3]

What is the penalty for a Texas Bail Jumping and Failure to Appear offense?

A conviction for Bail Jumping and Failure to Appear is punished as a Class A Misdemeanor,^[4] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year, unless it falls into one of the two categories described in the next two paragraphs.

The offense is a Class C Misdemeanor,^[5] with a maximum possible fine under Texas state law of up to $500, if the case was only punishable by a fine in the first place. So, if you skip bail on a traffic ticket or other municipal court offense, the failure to appear is punishable only as another traffic-ticket-level offense.

The offense can also be punished as a Felony of the Third Degree, with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years, if the offense that you fail to appear for is classified as a felony.^[6] Learn about the differences between grades of felonies and misdemeanors here.

Can you get probation for Bail Jumping and Failure to Appear in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Bail Jumping and Failure to Appear, and judges are also allowed to accept deferred adjudication plea deals.^[7]

Note, however, that judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[8]

What level of crime is Bail Jumping and Failure to Appear in Texas?

The Penal Code classifies Bail Jumping and Failure to Appear as a Class A misdemeanor, Class C misdemeanor, or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §38.10. This law is current as of the 88th Legislature Regular Session.^2. Code of Criminal Procedure 12.02(a)^3. See Code of Criminal Procedure 12.01(9)^4. Texas Penal Code §38.10(d)^5. Texas Penal Code §38.10(e)^6. Texas Penal Code §38.10(f)^7. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^8. Art. 42A.054(b), Texas Code of Criminal Procedure