By: Metcalf H.B. No. 4254
A BILL TO BE ENTITLED
AN ACT
relating to appeal of a mistrial order in a felony case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1, Chapter 40, Code of Criminal Procedure, is
amended by adding Article 40.002 to read as follows:
Art. 40.002. Appeal OF A MISTRIAL ORDER IN A FELONY CASE
(a) A court may grant a motion for mistrial or otherwise terminate
the trial of a felony case after the jury has been sworn on account
of a failure to comply with Article 39.14 of this Code, misconduct
of a trial participant, a legal error, or the admission of testimony
or other evidence, only upon a finding that no lesser remedy would
be adequate to protect a defendant's rights under the Texas
Constitution and the United States Constitution.
(b) Upon request by counsel for the state, a court which has
granted a motion for mistrial or has otherwise terminated the trial
of a felony case shall immediately enter into the record specific
findings of fact and conclusions of law regarding the factual and
legal bases for the order terminating the trial. A failure to
timely enter such findings and conclusions of law shall give rise to
an irrebuttable presumption that the order terminating the trial
was without factual or legal basis and is therefore subject to
reversal by an appellate court.
SECTION 2. Article 44.01, Code of Criminal Procedure, is
amended by adding Subsections (a)(7) and (m) to read as follows:
(a) The state is entitled to appeal an order of a court in a
criminal case if the order:
(1) dismisses an indictment, information, or
complaint or any portion of an indictment, information, or
complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a
confession, or an admission, if jeopardy has not attached in the
case and if the prosecuting attorney certifies to the trial court
that the appeal is not taken for the purpose of delay and that the
evidence, confession, or admission is of substantial importance in
the case; or
(6) is issued under Chapter 64, or
(7) grants a motion for mistrial or otherwise
terminates the trial of a felony case after the jury has been sworn.
(b) The state is entitled to appeal a sentence in a case on
the ground that the sentence is illegal.
(c) The state is entitled to appeal a ruling on a question of
law if the defendant is convicted in the case and appeals the
judgment.
(d) The prosecuting attorney may not make an appeal under
Subsection (a) or (b) of this article later than the 20th day after
the date on which the order, ruling, or sentence to be appealed is
entered by the court.
(e) The state is entitled to a stay in the proceedings
pending the disposition of an appeal under Subsection (a) or (b) of
this article.
(f) The court of appeals shall give precedence in its docket
to an appeal filed under Subsection (a) or (b) of this article. The
state shall pay all costs of appeal under Subsection (a) or (b) of
this article, other than the cost of attorney's fees for the
defendant.
(g) If the state appeals pursuant to this article and the
defendant is on bail, he shall be permitted to remain at large on
the existing bail. If the defendant is in custody, he is entitled
to reasonable bail, as provided by law, unless the appeal is from an
order which would terminate the prosecution, in which event the
defendant is entitled to release on personal bond.
(h) The Texas Rules of Appellate Procedure apply to a
petition by the state to the Court of Criminal Appeals for review of
a decision of a court of appeals in a criminal case.
(i) In this article, "prosecuting attorney" means the
county attorney, district attorney, or criminal district attorney
who has the primary responsibility of prosecuting cases in the
court hearing the case and does not include an assistant
prosecuting attorney.
(j) Nothing in this article is to interfere with the
defendant's right to appeal under the procedures of Article 44.02.
The defendant's right to appeal under Article 44.02 may be
prosecuted by the defendant where the punishment assessed is in
accordance with Subchapter C, Chapter 42A, as well as any other
punishment assessed in compliance with Article 44.02.
(k) The state is entitled to appeal an order granting relief
to an applicant for a writ of habeas corpus under Article 11.072.
(l) The state is entitled to appeal an order entered under:
(1) Subchapter G or H, Chapter 62, that exempts a
person from complying with the requirements of Chapter 62; and
(2) Subchapter I, Chapter 62, that terminates a
person's obligation to register under Chapter 62.
(m) An appeal brought under Subsection (a)(7) of this
Article shall be expedited, and preparation of the appellate record
shall take priority over all other records to be prepared by the
district clerk and any court reporter who has recorded the
proceedings.
SECTION 3. The changes in law made by this Act apply only to
a criminal proceeding that commences on or after the effective date
of this Act. A criminal proceeding that commences before the
effective date of this Act is governed by the law in effect on the
date the proceeding commenced, and the former law is continued in
effect for that purpose.
SECTION 4. This Act takes effect September 1, 2025.