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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorneys - Texas Code of Criminal Procedure Article Art. 1.20 Treason

Houston Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Did you know that it takes two witnesses to convict someone of treason? At least in State Court that is.

Article 1.20 of the Texas Code of Criminal Procedure covers convictions for treason. These two witnesses have to observer the same overt act of treason. There is a caveat for if the defendant confesses in open court.

It appears that the framers of the Texas Code of Criminal Procedure modeled this section after Article III, Section 3, Clause 1 of the United States Constitution.

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court."

The framers of the constitution listed treason but were extremely fearful of a tyrannical government taking hold. They included the requirement of two witnesses for treason accordingly because it was previously used by rouge administrations to imprison political dissenters.

The requirement of two witnesses doesn't just extend to the act but also the intent. "But to make treason the defendant not only must intend the act, but he must intend to betray his country by means of the act. It is here that Cramer defends. The issue is joined between conflicting theories as to how this treacherous intention and treasonable purpose must be made to appear."

Cramer v. United States, 325 U.S. 1, 31 (1945)

As you can tell this is a particularly federal rule because Treason is traditionally against your country and not your State. So it begs the question if the requirement of two witnesses for Treason in a state prosecution is really necessary? My belief is that the framers of the Texas Code of Criminal Procedure were similarly wary of rouge governments and decided to include it so that federal powers could not persuade state governments to do their dirty work.

You can imagine if the governor of Texas and the President of the United States were working together and one government could prosecute treason with 1 witness and the other required two witnesses of the same over act how that would incentivize abdication of the prosecutorial role for the federal government in an attempt to subvert the constitution.

Art. 1.20. CONVICTION OF TREASON. No person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

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