Prior to 9/1/07, Art. 23.04 said:

"In misdemeanor cases, the capias or summons shall issue from a court having jurisdiction of the case on the filing of an information or complaint. The summons shall be issued only upon request of the attorney representing the State and shall follow the same form and procedure as in a felony case."

It was amended to read:

"In misdemeanor cases, the capias or summons shall issue from a court having jurisdiction of the case on the filing of an information or complaint. The summons shall be issued only upon request of the attorney representing the State and on the determination of probable cause by the judge,and shall follow the same form and procedure as in a felony case."

One of our judges is now refusing to issue a capias (we never ask for summonses) unless we submit along with our C&I a probable cause affidavit.

Is anyone else submitting PC affidavits along with their misdemeanor C&I's? It appears to me that the requirement of a PC determination in the amendment only applies to summonses.

I read the bill as you do. Frankly, on it's face I don't see how you can apply the change to a capias -- that sentence specifically references only a summons and not a capias. If the Lege wanted it to apply to both, they would have referenced both in that second sentence, as they did in the first sentence.

This change was one small part of HB 3060, a 12-page bill changing many of the statutes governing capiases. I don't recall anyone discussing this particular change in detail, so I don't have any legislative history to help you.

I haven't heard of anyone applying the PC requirement to capiases as well, but that is not necessarily good proof of anything one way or the other.