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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorneys - Texas Code of Criminal Procedure Blog Art. 1.17 Religion

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


In Texas we have the freedom to practice any religion. The Code of Criminal Procedure clarifies this right by holding that "No person shall be disqualified to give evidence in any court of this State on account of his religious opinions, or for the want of any religious belief; but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury."


Now I don't know what they mean by the pains of perjury, but I do know what the penalties are.


Perjury is normally a Class A misdemeanor but if the false statement is made on the witness stand in a trial and it is "material" then its a third degree felony punishable by up to 10 years in prison and a $10,000 fine!


So what does this have to do with the freedom of religion? Well it used to be the case that everyone who testified at a trial would raise their right hand and place their left hand on the bible and swear to tell the truth. However some religions have rules against "swearing." That changed with the decision in Torcaso v. Watkins, 367 U.S. 488, 491-92 (1961). "When our Constitution was adopted, the desire to put the people "securely beyond the reach" of religious test oaths brought about the inclusion in Article VI of that document of a provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI supports the accuracy of our observation in Girouard v. United States[] that '[t]he test oath is abhorrent to our tradition.' Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment. That Amendment broke new constitutional ground in the protection it sought to afford to freedom of religion, speech, press, petition and assembly. Since prior cases in this Court have thoroughly explored and documented the history behind the First Amendment, the reasons for it, and the scope of the religious freedom it protects, we need not cover that ground again. What was said in our prior cases we think controls our decision here." Torcaso v. Watkins, 367 U.S. 488, 491-92 (1961).


The effect of this is that you may promise or affirm to the court on your mother's life, on the kids, on your good name, you can swear or affirm or promise basically to tell the truth and you'll pass as a witness in Texas Courts.


Texas Rule of Evidence 603 covers the same topic.

Rule 603. Oath or Affirmation to Testify Truthfully Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.


One example of an affirmation that was approved by the Appellate Courts was, "You must tell us the truth. Don't tell us anything you made up or what somebody else told you. Will you do that?" Gonzales v. State 748 S.W.2d 510, 511-12 (Tex. App. -- Houston [1st Dist.] 1988, no pet.).

Art. 1.17. RELIGIOUS BELIEF. No person shall be disqualified to give evidence in any court of this State on account of his religious opinions, or for the want of any religious belief; but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


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