CHAPTER 432. TEXAS CODE OF MILITARY JUSTICE
GOVERNMENT CODE
TITLE 4. EXECUTIVE BRANCH
SUBTITLE C. STATE MILITARY FORCES AND VETERANS
CHAPTER 432. TEXAS CODE OF MILITARY JUSTICE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 432.001. DEFINITIONS. In this chapter:
(1) "Accuser" means a person who signs and swears to charges,
who directs that charges nominally be signed and sworn to by
another, or who has an interest other than an official interest
in the prosecution of the accused.
(2) "Active state duty" means duty authorized under the
constitution and laws of the state and all training authorized
under Title 32, United States Code.
(3) "Commanding officer" includes commissioned officers and
warrant officers, as applicable.
(4) "Convening authority" includes, in addition to the person
who convened the court, a commissioned officer commanding
temporarily, or a successor in command.
(5) "Enlisted member" means a person in an enlisted grade.
(6) "Grade" means a step or degree, in a graduated scale of
office or military rank, that is established and designated as a
grade by law or regulation.
(7) "Judge advocate" means a commissioned officer appointed to
serve as a judge advocate by the adjutant general under Section
432.005(b).
(8) "Legal officer" means a commissioned officer of the state
military forces designated to perform legal duties for a command.
(9) "Military" refers to all or part of the state military
forces.
(10) "Military court" means a court-martial, court of inquiry,
military commission, or provost court.
(11) "Military judge" means an official of a court-martial
detailed in accordance with Section 432.045.
(12) "Officer" means a commissioned or warrant officer.
(13) "Officer candidate" means a cadet of the state officer
candidate school.
(14) "Rank" means the order of precedence among members of the
state military forces.
(15) "State judge advocate general" means the judge advocate
general of the state military forces, commissioned in those
forces, and responsible for supervising the administration of
military justice in the state military forces, and performing
other legal duties required by the adjutant general.
(16) "State military forces" means the National Guard of this
state, as defined in 32 U.S.C. Sections 101(3), (4) and (6), and
other militia or military forces organized under the laws of this
state.
(17) "Superior commissioned officer" means a commissioned
officer superior in rank or command.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 1, eff. Sept. 1,
1999.
Sec. 432.002. PERSONS SUBJECT TO CHAPTER. This chapter applies
to all members of the state military forces who are not in
federal service.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.003. JURISDICTION TO TRY CERTAIN PERSONNEL. (a) A
person discharged from the state military forces who is later
charged with having fraudulently obtained the discharge is,
except as provided by Section 432.068, subject to trial by
court-martial on that charge and is, after apprehension, subject
to this chapter while in custody of the military for that trial.
On conviction of that charge the person is subject to trial by
court-martial for all offenses under this chapter committed
before the fraudulent discharge.
(b) A person who has deserted from the state military forces may
not be relieved from amenability to the jurisdiction of this
chapter by virtue of a separation from any later period of
service.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.004. TERRITORIAL APPLICABILITY OF CHAPTER. (a) This
chapter applies in all places and to all persons otherwise
subject to this chapter while they are serving outside the state
and while they are going to and returning from service outside
the state, in the same manner and to the same extent as if they
were serving inside the state.
(b) Courts-martial and courts of inquiry may be convened and
held in units of the state military forces while those units are
serving outside the state, with the same jurisdiction and power
as to persons subject to this chapter as if the proceedings were
held inside the state, and offenses committed outside the state
may be tried and punished either inside or outside the state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.005. JUDGE ADVOCATES AND LEGAL OFFICERS. (a) The
adjutant general shall appoint an officer of the state military
forces as state judge advocate general. To be eligible for
appointment, an officer must be a member of the State Bar of
Texas for at least five years.
(b) The adjutant general shall appoint judge advocates and legal
officers on recommendation by the state judge advocate general.
To be eligible for appointment, a judge advocate or legal officer
must be an officer of the state military forces and a member of
the State Bar of Texas.
(c) The state judge advocate general or his assistants shall
make frequent inspections in the field in supervision of the
administration of military justice.
(d) Convening authorities shall at all times communicate
directly with their staff judge advocates or legal officers in
matters relating to the administration of military justice. The
staff judge advocates or legal officers of a command are entitled
to communicate directly with the staff judge advocates or legal
officers of a superior or subordinate command or with the state
judge advocate general.
(e) A person who has acted as member, military judge, trial
counsel, assistant trial counsel, defense counsel, assistant
defense counsel, or investigating officer, or who has been a
witness for either the prosecution or defense in a case, may not
later act as staff judge advocate or legal officer to a reviewing
authority on the same case.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 2, eff. Sept. 1,
1999.
SUBCHAPTER B. APPREHENSION AND RESTRAINT
Sec. 432.011. APPREHENSION. (a) In this subchapter,
"apprehend" means to take a person into custody.
(b) A person authorized by this chapter or by regulations issued
under it to apprehend a person subject to this chapter, a marshal
of a court-martial appointed under this chapter, and a peace
officer having authority to apprehend offenders under the laws of
the United States or of a state, may do so on reasonable belief
that an offense has been committed and that the person
apprehended committed it.
(c) Commissioned officers, warrant officers, and noncommissioned
officers may quell quarrels, frays, and disorders among persons
subject to this chapter and apprehend persons subject to this
chapter who take part in those activities.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.012. APPREHENSION OF DESERTERS. A civil officer or
peace officer having authority to apprehend offenders under the
laws of the United States or a state, territory, commonwealth, or
possession, or the District of Columbia, may summarily apprehend
a deserter from the state military forces and deliver the
deserter into the custody of the state military forces.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.013. IMPOSITION OF RESTRAINT. (a) In this subchapter:
(1) "Arrest" means the restraint of a person by an order, not
imposed as a punishment for an offense, directing the person to
remain within certain specified limits.
(2) "Confinement" means the physical restraint of a person.
(b) An enlisted member may be ordered into arrest or confinement
by a commissioned officer by an oral or written order delivered
in person, through other persons subject to this chapter, or
through a person authorized by this chapter to apprehend persons.
A commanding officer may authorize warrant officers or
noncommissioned officers to order enlisted members of his company
or subject to his authority into arrest or confinement.
(c) A commissioned officer or warrant officer may be ordered
apprehended or into arrest or confinement only by a commanding
officer to whose authority he is subject, by an oral or written
order delivered in person or by another commissioned officer. The
authority to order such persons apprehended or into arrest or
confinement may not be delegated.
(d) A person may not be ordered apprehended or into arrest or
confinement except for probable cause.
(e) This section does not limit the authority of persons
authorized to apprehend offenders to secure the custody of an
alleged offender until the proper authority may be notified.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.014. RESTRAINT OF PERSONS CHARGED WITH OFFENSES. A
person subject to this chapter charged with an offense under this
chapter shall be ordered into arrest or confinement, as
circumstances may require, but if charged with only an offense
normally tried by a summary court-martial, the person may not
ordinarily be placed in confinement. If a person subject to this
chapter is placed in arrest or confinement before trial,
immediate steps shall be taken to inform him of the specific
wrong of which he is accused and to try him or to dismiss the
charges and release him. A person confined other than in a
guardhouse, whether before, during, or after trial by a military
court, shall be confined in a civil jail.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.015. REPORTS AND RECEIVING OF PRISONERS. (a) A
provost marshal, commander of a guard, master at arms, warden,
keeper, or officer of a city or county jail or any other jail
designated under Section 432.014 may not refuse to receive or
keep a prisoner committed to his charge, when the committing
person furnishes a statement, signed by him, of the offense
charged against the prisoner.
(b) A commander of a guard, master at arms, warden, keeper, or
officer of a city or county jail or of any other jail designated
under Section 432.014 to whose charge a prisoner is committed
shall, within 24 hours after that commitment or as soon as he is
relieved from guard, report to the commanding officer of the
prisoner the name of the prisoner, the offense charged against
him, and the name of the person who ordered or authorized the
commitment.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.016. PUNISHMENT PROHIBITED BEFORE TRIAL. Subject to
Section 432.093, a person, while being held for trial or the
result of trial, may not be subjected to punishment or penalty
other than arrest or confinement on the charges pending against
the person, nor may the arrest or confinement imposed on the
person be more rigorous than the circumstances require to ensure
the person's presence, but the person may be subjected to minor
punishment during that period for infractions of discipline.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.017. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES. (a)
Under regulations prescribed under this chapter a person subject
to this chapter who is on active state duty and who is accused of
an offense against civil authority may be delivered, on request,
to the civil authority for trial.
(b) If delivery under this section is made to a civil authority
of a person undergoing sentence of a court-martial, the delivery,
if followed by conviction in a civil tribunal, interrupts the
execution of the sentence of the court-martial, and the offender,
after having answered to the civil authorities for the offense,
on the request of competent military authority, shall be returned
to military custody for the completion of the sentence.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER C. NONJUDICIAL PUNISHMENT
Sec. 432.021. COMMANDING OFFICER'S NONJUDICIAL PUNISHMENT. (a)
Under regulations that the governor may prescribe, limitations
may be placed on the powers granted by this section with respect
to the kind and amount of punishment authorized, the categories
of commanding officers and warrant officers exercising command
authorized to exercise those powers, the applicability of this
section to an accused who demands trial by court-martial, and the
kinds of courts-martial to which the case may be referred on such
a demand. However, except in the case of a member attached to or
embarked in a vessel, punishment may not be imposed on a member
of the state military forces under this section if the member,
before the imposition of the punishment, has demanded trial by
court-martial in lieu of the punishment. Under similar
regulations, rules may be prescribed with respect to the
suspension of punishments authorized by this section. If
authorized by regulations of the governor, the governor or an
officer of general rank in command may delegate the governor's or
officer's powers under this section to a principal assistant. If
disciplinary punishment other than admonition or reprimand is to
be imposed, the accused shall be afforded the opportunity to be
represented by defense counsel having the qualifications
prescribed under Section 432.046(b), if such a counsel is
available. Otherwise, the accused shall be afforded the
opportunity to be represented by any available commissioned
officer of his choice. The accused may also employ civilian
counsel of his own choosing at his own expense. In all
proceedings, the accused is allowed three duty days, or longer on
written justification, to reply to the notification of intent to
impose punishment under this section.
(b) Subject to Subsection (a), a commanding officer may, in
addition to or in lieu of admonition or reprimand, impose one or
more of the following disciplinary punishments for minor offenses
without the intervention of a court-martial:
(1) on officers of his command:
(A) restriction to certain specified limits with or without
suspension from duty, for not more than 30 days; or
(B) if imposed by the governor, or an officer of general rank in
command:
(i) arrest in quarters for not more than 30 days;
(ii) forfeiture of not more than half of one month's pay a month
for two months or a fine of not more than $75;
(iii) restriction to certain specified limits, with or without
suspension from duty, for not more than 60 days; or
(iv) detention of not more than half of one month's pay a month
for three months; and
(2) on other personnel of his command:
(A) if imposed on a person attached to or embarked in a vessel,
confinement for not more than three days;
(B) correctional custody for not more than seven days;
(C) forfeiture of not more than seven days' pay or a fine of not
more than $50;
(D) reduction of not more than two pay grades, if imposed by a
commanding officer of the grade of colonel or above, or reduction
of not more than one pay grade, if imposed by a commanding
officer of a grade lower than colonel;
(E) extra duties including fatigue or other duties, for not more
than 30 days, which need not be consecutive, and for not more
than two hours a day, holidays included;
(F) restriction to certain specified limits, with or without
suspension from duty for not more than 14 days;
(G) detention of not more than 14 days' pay; or
(H) if imposed by an officer of the grade of major or above:
(i) the punishment authorized under Subsection (b)(2)(A);
(ii) correctional custody for not more than 30 days;
(iii) forfeiture of not more than half of one month's pay a
month for two months or a fine of not more than $100;
(iv) reduction to the lowest or any intermediate pay grade, if
the grade from which demoted is within the promotion authority of
the officer imposing the reduction or an officer subordinate to
the one who imposes the reduction, but an enlisted member in a
pay grade above E-4 may not be reduced more than two pay grades;
(v) extra duties, including fatigue or other duties, for not
more than 45 days which need not be consecutive and for not more
than two hours a day, holidays included;
(vi) restriction to certain specified limits with or without
suspension from duty, for not more than 60 days; or
(vii) detention of not more than half of one month's pay a month
for three months.
(c) Detention of pay shall be for a stated period of not more
than one year, but if the offender's term of service expires
earlier, the detention shall terminate on that expiration. No two
or more of the punishments of arrest in quarters, correctional
custody, extra duties, and restriction may be combined to run
consecutively in the maximum amount imposable for each. If any of
those punishments are combined to run consecutively, there must
be an apportionment. In addition, fine or forfeiture of pay may
not be combined with detention of pay without an apportionment.
For the purposes of this section "correctional custody" means the
physical restraint of a person during duty or nonduty hours and
may include extra duties, fatigue duties, or hard labor. If
practicable, correctional custody may not be required to be
served in immediate association with persons awaiting trial or
held in confinement pursuant to trial by courts-martial.
(d) An officer in charge may impose on enlisted members assigned
to the unit of which he is in charge those of the punishments
authorized under Subsections (b)(2)(A)-(G) that the governor
specifically prescribes by regulation.
(e) The officer who imposes the punishment authorized in
Subsection (b) or his successor in command may at any time
suspend probationally any part or amount of the unexecuted
punishment imposed and may suspend probationally a reduction in
grade or fine or forfeiture imposed under Subsection (b), whether
or not executed. In addition, the officer may, at any time, remit
or mitigate any part or amount of the unexecuted punishment
imposed and may set aside in whole or in part the punishment,
whether executed or unexecuted, and restore all rights,
privileges, and property affected. The officer may also mitigate
reduction in grade to fine or forfeiture or detention of pay. If
mitigating arrest in quarters to restriction or extra duties to
restriction, the mitigated punishment may not be for a greater
period than the punishment mitigated. If mitigating forfeiture of
pay to detention of pay, the amount of the detention may not be
greater than the amount of the forfeiture. If mitigating
reduction in grade to fine, forfeiture, or detention of pay, the
amount of the fine, forfeiture, or detention may not be greater
than the amount that could have been imposed initially under this
section by the officer who imposed the punishment mitigated.
(f) A person punished under this section who considers the
punishment unjust or disproportionate to the offense may appeal
to the next superior authority through the proper channel. The
appeal shall be promptly forwarded and decided, but the person
punished may in the meantime be required to undergo the
punishment adjudged. The superior authority may exercise the same
powers with respect to the punishment imposed as may be exercised
under Subsection (e) by the officer who imposed the punishment.
Before acting on an appeal from a punishment of arrest in
quarters for more than seven days, correctional custody for more
than seven days, forfeiture of more than seven days' pay,
reduction of one or more pay grades from the fourth or a higher
pay grade, extra duties for more than 14 days, restriction of
more than 14 days' pay, or detention of more than 14 days' pay,
the authority who is to act on the appeal shall refer the case to
a judge advocate or legal officer of the state military forces
for consideration and advice, and may similarly refer the case on
appeal from a punishment imposed under Subsection (b).
(g) The imposition and enforcement of disciplinary punishment
under this section for an act or omission is not a bar to trial
by court-martial for a serious crime or offense growing out of
the same act or omission and not properly punishable under this
section, but the fact that a disciplinary punishment has been
enforced may be shown by the accused on trial and, when shown,
shall be considered in determining the measure of punishment to
be adjudged in the event of a finding of guilty.
(h) The governor by regulation may prescribe the form of records
to be kept of proceedings under this section and may require that
certain categories of those proceedings be in writing.
(i) A commanding officer may delegate authority to make a
reduction in pay grade under Subsection (b)(2)(D) to the
commanding officer's executive officer, chief of staff, or vice
commander.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch.
94, Sec. 1, eff. September 1, 2005.
SUBCHAPTER D. COURTS-MARTIAL
Sec. 432.031. COURTS-MARTIAL CLASSIFIED. The three kinds of
courts-martial in each of the state military forces are:
(1) general court-martial, consisting of:
(A) a military judge and not fewer than five members; or
(B) only a military judge, if before the court is assembled the
accused, knowing the identity of the military judge and after
consultation with defense counsel, requests in writing a court
composed only of a military judge and the military judge
approves;
(2) special court-martial, consisting of:
(A) not fewer than three members; or
(B) a military judge and not fewer than three members; or
(C) only a military judge, if one has been detailed to the
court, and the accused under the same conditions as those
prescribed in Subdivision (1)(B) requests; and
(3) summary court-martial, consisting of one officer, who must
be a military judge or an attorney licensed to practice law in
this state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.032. JURISDICTION OF COURT-MARTIAL IN GENERAL. Each
force of the state military forces has court-martial jurisdiction
over all persons subject to this chapter. The exercise of
jurisdiction by one force over personnel of another force shall
be in accordance with regulations prescribed by the governor.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.033. JURISDICTION OF GENERAL COURT-MARTIAL. (a)
Subject to Section 432.032, a general court-martial has
jurisdiction to try a person subject to this chapter for any
offense made punishable by this chapter and may, under
limitations the governor prescribes, adjudge any of the following
punishments:
(1) a fine of not more than $1,000 or confinement for not more
than 360 days;
(2) forfeiture of pay and allowances;
(3) reprimand;
(4) dismissal or dishonorable discharge;
(5) reduction of a noncommissioned officer to the ranks; or
(6) any combination of those punishments.
(b) A dismissal or dishonorable discharge may not be adjudged
unless a complete record of the proceedings and testimony is
made, counsel having the qualifications prescribed under Section
432.046(b) is detailed to represent the accused; and a military
judge is detailed to the trial.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch.
94, Sec. 2, eff. September 1, 2005.
Sec. 432.034. JURISDICTION OF SPECIAL COURT-MARTIAL. (a)
Subject to Section 432.032, a special court-martial has
jurisdiction to try a person subject to this chapter, except a
commissioned officer, for any offense for which he may be
punished under this chapter. A special court-martial has the
same powers of punishment as a general court-martial, except that
a special court-martial may not impose more than a $500 fine or
confinement of more than 180 days for a single offense.
(b) A dismissal or dishonorable discharge may not be adjudged
unless a complete record of the proceedings and testimony is
made, counsel having the qualifications prescribed under Section
432.046(b) is detailed to represent the accused, and a military
judge is detailed to the trial, except in a case in which a
military judge cannot be detailed to the trial because of
physical conditions or military exigencies. In a case in which a
military judge is not detailed to the trial, the convening
authority shall make a detailed written statement, to be appended
to the record, stating the reason a military judge could not be
detailed.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch.
94, Sec. 3, eff. September 1, 2005.
Sec. 432.035. JURISDICTION OF SUMMARY COURT-MARTIAL. (a)
Subject to Section 432.032, a summary court-martial has
jurisdiction to try persons subject to this chapter, except
officers, for any offense made punishable by this chapter.
(b) A person of whom a summary court-martial has jurisdiction
may not be brought to trial before a summary court-martial if the
person objects. If an accused objects to trial by summary
court-martial, trial may be ordered by special or general
court-martial, as appropriate.
(c) A summary court-martial may sentence a person to pay a fine
of not more than $200 or confinement for not more than 90 days
for a single offense, to forfeiture of pay and allowances, and to
reduction of a noncommissioned officer to the ranks.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2005, 79th Leg., Ch.
94, Sec. 4, eff. September 1, 2005.
Sec. 432.036. JURISDICTION OF COURT-MARTIAL NOT EXCLUSIVE. The
provisions of this chapter conferring jurisdiction on
courts-martial do not deprive military commissions, provost
courts, or other military tribunals of concurrent jurisdiction
with respect to offenders or offenses that by statute or by the
law of war may be tried by military commissions, provost courts,
or other military tribunals.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER E. COMPOSITION OF COURTS-MARTIAL
Sec. 432.041. WHO MAY CONVENE GENERAL COURT-MARTIAL. In the
militia or state military forces not in federal service a general
court-martial may be convened by:
(1) the governor; or
(2) the adjutant general or any other general officer under
regulations the governor may adopt.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.042. WHO MAY CONVENE SPECIAL COURT-MARTIAL. In the
state military forces not in federal service, any commander in
the grade of lieutenant colonel or in a higher grade may convene
a special court-martial.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 3, eff. Sept. 1,
1999.
Sec. 432.043. WHO MAY CONVENE SUMMARY COURT-MARTIAL. In the
state military forces not in federal service, any commander in
the grade of major or in a higher grade may convene a summary
court-martial.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 4, eff. Sept. 1,
1999.
Sec. 432.044. WHO MAY SERVE ON COURT-MARTIAL. (a) A state
commissioned officer in a duty status is eligible to serve on a
court-martial for the trial of a person who may lawfully be
brought before the court for trial.
(b) A warrant officer in a duty status is eligible to serve on
general and special courts-martial for the trial of a person,
other than a commissioned officer, who may lawfully be brought
before the courts for trial.
(c) An enlisted member of the state military forces in a duty
status who is not a member of the same unit as the accused is
eligible to serve on general and special courts-martial for the
trial of an enlisted member of the state military forces who may
lawfully be brought before the court for trial if, before the
conclusion of a session called by the military judge under
Section 432.064(a) before trial or, in the absence of such a
session, before the court is assembled for the trial of the
accused, the accused personally has requested in writing that
enlisted members serve on it. After such a request, the accused
may not be tried by a general or special court-martial the
membership of which does not include enlisted members in a number
comprising at least one-third of the total membership of the
court, unless eligible members cannot be obtained because of
physical conditions or military exigencies. If a sufficient
number of enlisted members cannot be obtained, the court may be
convened and the trial held without them, but the convening
authority shall make a detailed written statement, to be appended
to the record, stating why they could not be obtained. In this
subsection, "unit" means a regularly organized body of the state
military forces.
(d) If it can be avoided, a person subject to this chapter may
not be tried by a court-martial, a member of which is junior to
him in rank or grade. On convening a court-martial, the convening
authority shall detail as members of the court-martial members of
the state military forces that, in his opinion, are best
qualified for the duty because of age, education, training,
experience, length of service, and judicial temperament. A member
of the state military forces is not eligible to serve as a member
of a general or special court-martial if the member is the
accuser or a witness for the prosecution or has acted as
investigating officer or counsel in the same case.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 5, eff. Sept. 1,
1999.
Sec. 432.045. MILITARY JUDGE OF COURT-MARTIAL. (a) The
authority convening a general court-martial shall, and, subject
to regulations issued by the governor, the authority convening a
special or summary court-martial may, detail a military judge to
the court-martial. A military judge shall preside over open
sessions of the court-martial to which the judge has been
detailed.
(b) A military judge must be a commissioned officer of the state
military forces, a member of the State Bar of Texas, and
certified to be qualified for duty as a military judge by the
state judge advocate general of the state military forces.
(c) The military judge of a general court-martial shall be
designated by the state judge advocate general or his designee
for detail by the convening authority, and unless the
court-martial was convened by the governor or the adjutant
general, neither the convening authority nor a member of his
staff shall prepare or review any report concerning the
effectiveness, fitness, or efficiency of the military judge's
performance of duty as a military judge.
(d) A person who is the accuser or a witness for the prosecution
or has acted as investigating officer or counsel in a case is not
eligible to act as military judge in the case.
(e) The military judge of a court-martial may not consult with
the members of the court except in the presence of the accused,
trial counsel, and defense counsel, nor may he vote with the
members of the court.
(f) A military judge detailed to preside over a court-martial is
not subject to any report by the convening authority concerning
the effectiveness, fitness, or efficiency of that military judge
that relates to performance of duty as a military judge, nor any
member of his staff.
(g) A trial counsel, defense counsel, military judge, legal
officer, summary court officer, or any other person certified by
the state judge advocate general to perform legal functions under
this chapter shall be used interchangeably, as needed, among all
of the state military forces.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 6, eff. Sept. 1,
1999.
Sec. 432.046. DETAIL OF TRIAL COUNSEL AND DEFENSE COUNSEL. (a)
The authority convening each general, special, or summary
court-martial shall detail trial counsel, defense counsel, and
assistants that the authority considers appropriate. A person who
has acted as investigating officer, military judge, or court
member in a case may not act later as trial counsel or assistant
trial counsel, or, unless expressly requested by the accused, as
defense counsel or assistant defense counsel in the same case. A
person who has acted for the prosecution may not act later in the
same case for the defense, nor may a person who has acted for the
defense act later in the same case for the prosecution.
(b) Trial counsel or defense counsel detailed for a general
court-martial must be:
(1) a member of the State Bar of Texas; and
(2) certified as competent to perform those duties by the state
judge advocate general.
(c) In the case of a special or summary court-martial the
accused shall be afforded the opportunity to be represented at
the trial by counsel having the qualifications prescribed under
Subsection (b) unless counsel having those qualifications cannot
be obtained because of physical conditions or military
exigencies. If counsel having those qualifications cannot be
obtained, the court may be convened and the trial held, but the
convening authority shall make a detailed written statement, to
be appended to the record, stating why counsel with those
qualifications could not be obtained. If the trial counsel is
qualified to act as counsel before a general court-martial, the
defense counsel detailed by the convening authority must be a
person similarly qualified. If the trial counsel is a judge
advocate or a member of the State Bar of Texas, the defense
counsel detailed by the convening authority must be a judge
advocate or a member of the State Bar of Texas.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 309, Sec. 7, eff. Sept. 1,
1999.
Sec. 432.047. DETAIL OR EMPLOYMENT OF REPORTERS AND
INTERPRETERS. Under regulations that the governor prescribes,
the convening authority of a general or special court-martial,
military commission, court of inquiry, or a military tribunal:
(1) shall detail or employ qualified court reporters who shall
record the proceedings of and testimony taken before that court,
commission, or tribunal; and
(2) may detail or employ interpreters who shall interpret for
the court, commission, or tribunal.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.048. ABSENT AND ADDITIONAL MEMBERS. (a) A member of a
general or special court-martial may not be absent or excused
after the court has been assembled for the trial of the accused
except for physical disability or as the result of a challenge or
by order of the convening authority for good cause.
(b) If a general court-martial, other than a general
court-martial composed of a military judge only, is reduced below
five members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
fewer than five members. The trial may proceed with the new
members present after the recorded evidence previously introduced
has been read to the court in the presence of the military judge,
the accused, and counsel for both sides.
(c) If a special court-martial, other than a special
court-martial composed of a military judge only, is reduced below
three members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
fewer than three members. The trial shall proceed with the new
members present as if no evidence had previously been introduced
at the trial, unless a verbatim record of the evidence previously
introduced before the members of the court or a stipulation of
that evidence is read to the court in the presence of the
military judge, if any, the accused, and counsel for both sides.
(d) If the military judge of a court-martial composed of a
military judge only is unable to proceed with the trial because
of physical disability, as a result of a challenge, or for other
good cause, the trial shall proceed, subject to any applicable
conditions of Section 432.031(1)(B) or (2)(C), after the detail
of a new military judge as if no evidence had previously been
introduced, unless a verbatim record of the evidence previously
introduced or stipulation of that evidence is read in court in
the presence of the new military judge, the accused, and counsel
for both sides.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER F. PRETRIAL PROCEDURE
Sec. 432.051. CHARGES AND SPECIFICATIONS. (a) Charges and
specifications must be signed by a person subject to this
chapter, under oath, and before a commissioned officer of the
state military force authorized to administer oaths, and must
state that:
(1) the signer has personal knowledge of, or has investigated,
the matters set forth; and
(2) the matters set forth are true in fact to the best of the
signer's knowledge and belief.
(b) On the preferring of charges, the proper authority shall
take immediate steps to determine the disposition that should be
made in the interest of justice and discipline, and the person
accused shall be informed of the charges as soon as practicable.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.052. COMPULSORY SELF-INCRIMINATION PROHIBITED. (a) A
person subject to this chapter may not compel any person to
incriminate himself or to answer a question the answer to which
may tend to incriminate him.
(b) A person subject to this chapter may not interrogate or
request any statement from an accused or a person suspected of an
offense without first informing him of the nature of the
accusation and advising him that he does not have to make any
statement regarding the offense of which he is accused or
suspected and that any statement made by him may be used as
evidence against him in a trial by court-martial.
(c) A person subject to this chapter may not compel any person
to make a statement or produce evidence before a military
tribunal if the statement or evidence is not material to the
issue and may tend to degrade him.
(d) A statement obtained from a person in violation of this
section, or through the use of coercion, unlawful influence, or
unlawful inducement, may not be received in evidence against the
person in a trial by court-martial.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.053. INVESTIGATION. (a) A charge or specification may
not be referred to a general court-martial for trial until a
thorough and impartial investigation of all the matters set forth
has been made. This investigation must include inquiry as to the
truth of the matter set forth in the charges, consideration of
the form of charges, and a recommendation as to the disposition
that should be made of the case in the interest of justice and
discipline.
(b) The accused is entitled to be advised of the charges against
him and of his right to be represented at that investigation by
counsel. On the accused's own request, he is entitled to be
represented by civilian counsel if provided by him, or by
military counsel of his own selection if that counsel is
reasonably available, or by counsel detailed by the officer
exercising general court-martial jurisdiction over the command.
At that investigation full opportunity shall be given to the
accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own
behalf, either in defense or mitigation, and the investigating
officer shall examine available witnesses requested by the
accused. If the charges are forwarded after the investigation,
they shall be accompanied by a statement of the substance of the
testimony taken on both sides, and a copy shall be given to the
accused.
(c) If an investigation of the subject matter of an offense has
been conducted before the accused is charged with the offense,
and if the accused was present at the investigation and afforded
the opportunities for representation, cross-examination, and
presentation prescribed in Subsection (b), further investigation
of that charge is not necessary under this section unless it is
demanded by the accused after he is informed of the charge. A
demand for further investigation entitles the accused to recall
witnesses for further cross-examination and to offer any new
evidence in his own behalf.
(d) The requirements of this section are binding on all persons
administering this chapter but failure to follow them does not
constitute jurisdictional error.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.054. FORWARDING OF CHARGES. (a) If a person is held
for trial by general court-martial, the commanding officer shall,
not later than the eighth day after the date the accused is
ordered into arrest or confinement, forward the charges, together
with the investigation and allied papers, to the officer
exercising general court-martial jurisdiction.
(b) If compliance with Subsection (a) is not practicable, the
commanding officer shall instead report in writing to that
officer the reasons for delay.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.055. ADVICE OF STAFF JUDGE ADVOCATE AND REFERENCE FOR
TRIAL. (a) Before directing the trial of a charge by general
court-martial, the convening authority shall refer it to the
authority's staff judge advocate or legal officer for
consideration and advice. The convening authority may not refer a
charge to a general court-martial for trial unless the authority
has found that the charge alleges an offense under this chapter
and is warranted by evidence indicated in the report of
investigation.
(b) If the charges or specifications are not formally correct or
do not conform to the substance of the evidence contained in the
report of the investigating officer, formal corrections and
changes in the charges and specifications that are needed to make
them conform to the evidence may be made.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.056. SERVICE OF CHARGES. (a) The trial counsel to
whom court-martial charges are referred for trial shall cause to
be served on the accused a copy of the charges on which trial is
to be had.
(b) In time of peace a person may not be brought to trial
against his objections or be required to participate by himself
or counsel in a session called by the military judge under
Section 432.064(a) in a general court-martial case within five
days after the date of service of charges on him, or in a special
court-martial case within three days after the date of service of
charges on him.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
SUBCHAPTER G. TRIAL PROCEDURE
Sec. 432.061. PROCEDURE. The procedure, including modes of
proof, in cases before military courts and other military
tribunals may by regulations be prescribed by the governor. The
regulations, so far as the governor considers practicable, must
conform to the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the courts
of the state but may not be contrary to or inconsistent with this
chapter.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.062. UNLAWFULLY INFLUENCING ACTION OF COURT. (a) An
authority convening a general, special, or summary court-martial,
another commanding officer, or officer serving one of their
staffs may not censure, reprimand, or admonish the court, a court
member, military judge, or counsel of the court with respect to
the findings or sentence adjudged by the court or with respect to
another exercise of its or his functions in the conduct of the
proceeding.
(b) A person subject to this chapter may not attempt to coerce
or by unauthorized means influence the action of the
court-martial or another military tribunal or a member of the
tribunal in reaching the findings or sentence in a case or the
action of a convening, approving, or reviewing authority with
respect to his judicial acts.
(c) Subsections (a) and (b) do not apply to:
(1) general instructional or informational courses in military
justice if the courses are designed solely for the purpose of
instructing members of a command in the substantive and
procedural aspects of court-martial; or
(2) statements and instructions given in open court by the
military judge, president of a special court-martial, or counsel.
(d) In the preparation of an effectiveness, fitness, or
efficiency report, or another report or document used in whole or
part for determining whether a member of the state military
forces is qualified to be advanced in grade, in determining the
assignment or transfer of a member of the state military forces,
or in determining whether a member of the state military forces
should be retained on duty, a person subject to this chapter may
not:
(1) consider or evaluate the performance of duty of the member
as a member of a court-martial; or
(2) give a less favorable rating or evaluation of a member of
the state military forces because of the zeal with which the
member, as counsel, represented an accused before a
court-martial.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.063. DUTIES OF TRIAL COUNSEL AND DEFENSE COUNSEL. (a)
The trial counsel of a general or special court-martial shall
prosecute in the name of the state and shall, under the direction
of the court, prepare the record of the proceedings.
(b) The accused has the right to be represented in his defense
before a general, special, or summary court-martial by civilian
counsel if provided by him, or by military counsel of his own
selection if reasonably available, or by the defense counsel
detailed under Section 432.046. If the accused has counsel of his
own selection, the defense counsel, and assistant defense
counsel, if any, who were detailed, shall, if the accused so
desires, act as his associate counsel; otherwise they shall be
excused by the military judge or by the president of a
court-martial without a military judge.
(c) In every court-martial proceeding, the defense counsel, in
the event of conviction, may forward for attachment to the record
of proceedings, a brief of the matters the counsel feels should
be considered in behalf of the accused on review, including any
objection to the contents of the record that the counsel
considers appropriate.
(d) An assistant trial counsel of a general court-martial, under
the direction of the trial counsel or if he is qualified to be a
trial counsel as required by Section 432.046, may perform any
duty imposed on the trial counsel of the court by law,
regulation, or the custom of the service. An assistant trial
counsel of a special court-martial may perform any duty of the
trial counsel.
(e) An assistant defense counsel of a general or special
court-martial, under the direction of the defense counsel or when
he is qualified to be the defense counsel as required by Section
432.046, may perform any duty imposed on counsel for the accused
by law, regulation, or the custom of the service.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.064. SESSIONS. (a) At any time after the service of
charges that have been referred for trial to a court-martial
composed of a military judge and members, the military judge,
subject to Section 432.056, may call the court into session
without the presence of the members for the purpose of:
(1) hearing and determining motions raising defenses or
objections that are capable of determination without trial of the
issues raised by a plea of not guilty;
(2) hearing and ruling on matters that may be ruled on by the
military judge under this chapter, whether or not the matter is
appropriate for later consideration or decision by the members of
the court;
(3) holding the arraignment and receiving the pleas of the
accused if permitted by regulations of the governor; and
(4) performing any other procedural function that may be
performed by the military judge under this chapter or under rules
prescribed pursuant to Section 432.061 and that does not require
the presence of the members of the court.
(b) Proceedings under this section shall be conducted in the
presence of the accused, the defense counsel, and the trial
counsel and shall be made a part of the record.
(c) When the members of a court-martial deliberate or vote, only
the members may be present. All other proceedings, including any
other consultation of the members of the court with counsel or
the military judge, shall be made a part of the record and shall
be in the presence of the accused, the defense counsel, the trial
counsel, and in cases in which a military judge has been detailed
to the court, the military judge.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.065. CONTINUANCES. The military judge or a
court-martial without a military judge may, for reasonable cause,
grant a continuance to a party for the period, and as often, as
may appear to be just.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.066. CHALLENGES. (a) The military judge and members
of a general or special court-martial may be challenged by the
accused or the trial counsel for cause stated to the court. The
military judge, or, if none, the court, shall determine the
relevancy and validity of challenges for cause and may not
receive a challenge to more than one person at a time. Challenges
by trial counsel shall ordinarily be presented and decided before
those by the accused are offered.
(b) Each accused and the trial counsel are entitled to one
preemptory challenge, but the military judge may not be
challenged except for cause.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.067. OATHS. Before performing their respective duties,
military judges, members of general and special courts-martial,
trial counsel, assistant trial counsel, defense counsel,
assistant defense counsel, reporters, and interpreters shall take
an oath to perform their duties faithfully. The oath or
affirmation shall be taken in the presence of the accused, and
shall read as follows:
(1) for court members: "You, ________________, do swear (or
affirm) that you will faithfully perform all the duties incumbent
upon you as a member of this court; that you will faithfully and
impartially try, according to the evidence, your conscience, and
the laws and regulations provided for trials by courts-martial,
the case of (the) (each) accused now before this court; and that
if any doubt should arise not explained by the laws and
regulations, then according to the best of your understanding and
the customs of the service in like cases; that you will not
divulge the findings and sentence in any case until they shall
have been duly announced by the court; and that you will not
disclose or discover the vote or opinion of any particular member
of the court upon a challenge or upon the findings or sentence
unless required to do so before a court of justice in due course
of law. So help you God."
(2) for a military judge: "You, ________________, do swear (or
affirm) that you will faithfully and impartially perform,
according to your conscience and the laws and regulations
provided for trials by courts-martial, all the duties incumbent
upon you as military judge of this court; that if any doubt
should arise not explained by the laws and regulations, then
according to the best of your understanding and the customs of
the service in like cases; and that you will not divulge the
findings or sentence in any case until they shall have been duly
announced by the court. So help you God."
(3) for a trial counsel and assistant trial counsel: "You,
________________ (and) ________________, do swear (or affirm)
that you will faithfully perform the duties of trial counsel and
will not divulge the findings or sentence of the court to any but
the proper authority until they shall be duly disclosed. So help
you God."
(4) for defense counsel and assistant defense counsel: "You,
________________ (and) ________________, do swear (or affirm)
that you will faithfully perform the duties of defense (and
individual) counsel and will not divulge the findings or sentence
of the court to any but the proper authority until they shall be
duly disclosed. So help you God."
(5) for a court of inquiry:
(A) the recorder of a court of inquiry shall administer to the
members the following oath: "You shall well and truly examine and
inquire, according to the evidence, into the matter now before
you without partiality, favor, affection, prejudice, or hope of
reward. So help you God."
(B) then the president of the court shall administer to the
recorder the following oath: "You do swear that you will
according to your best abilities accurately and impartially
record the proceedings of the court and the evidence to be given
in the case in hearing. So help you God."
(6) all persons who give evidence before a court-martial or
court of inquiry shall be examined on oath administered by the
presiding officer in the following form: "You swear (or affirm)
that the evidence you shall give in the case now in hearing shall
be the truth, the whole truth, and nothing but the truth. So help
you God."
(7) for a reporter or interpreter: "You swear (or affirm) that
you will faithfully perform the duties of reporter (or
interpreter) to this court. So help you God."
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.068. LIMITATIONS. (a) A person charged with desertion
or absence without leave in time of war, aiding the enemy, or
mutiny may be tried and punished at any time without limitation.
(b) A person charged with desertion in time of peace or with an
offense punishable under Sections 432.157, 432.158, or 432.159 is
not liable to be tried by court-martial if the offense was
committed more than three years before the date of receipt of
sworn charges and specifications by an officer exercising summary
court-martial jurisdiction over the command.
(c) A person charged with any offense is not liable to be tried
by court-martial or punished under Section 432.021 if the offense
was committed more than two years before the date of receipt of
sworn charges and specifications by an officer exercising summary
court-martial jurisdiction over the command, or before the
imposition of punishment under Section 432.021.
(d) A period in which the accused is absent from territory in
which the state has the authority to apprehend him, is in the
custody of civil authorities, or is in the hands of the enemy is
excluded in computing the period of limitation prescribed by this
section.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.069. FORMER JEOPARDY. (a) A person may not be tried a
second time in a military court of the state for the same
offense.
(b) A proceeding in which an accused has been found guilty by a
court-martial on a charge or specification is not a trial for the
purposes of this section until the finding of guilty has become
final after review of the case has been fully completed.
(c) A proceeding that, after the introduction of evidence but
before a finding, is dismissed or terminated by the convening
authority or on motion of the prosecution for failure of
available evidence or witnesses without fault of the accused is a
trial for the purposes of this section.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.070. PLEAS OF ACCUSED. (a) If an accused after
arraignment makes an irregular pleading or after a plea of guilty
sets up matter inconsistent with the plea, if it appears that the
accused has entered the plea of guilty improvidently or through
lack of understanding of its meaning and effect, or if the
accused fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the court shall proceed as though the
accused had pleaded not guilty.
(b) With respect to a charge or specification to which a plea of
guilty has been made by the accused and accepted by the military
judge, or by a court-martial without a military judge, a finding
of guilty on the charge or specification may, if permitted by
regulations of the governor, be entered immediately without vote.
This finding constitutes the finding of the court unless the plea
of guilty is withdrawn before the announcement of the sentence,
in which event the proceedings shall continue as though the
accused had pleaded not guilty.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.071. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER
EVIDENCE. (a) The trial counsel, defense counsel, accused, and
court-martial have equal opportunity to obtain witnesses and
other evidence. Each has the right of compulsory process for
obtaining witnesses.
(b) The presiding officer of a court-martial may:
(1) issue a warrant for the arrest of an accused person who,
having been served with a warrant and a copy of the charges,
disobeys a written order by the convening authority to appear
before the court;
(2) issue subpoenas duces tecum and other subpoenas;
(3) enforce by attachment the attendance of witnesses and the
production of books and papers; and
(4) sentence for refusal to be sworn or to answer as provided in
actions before civil courts of the state.
(c) Process issued in court-martial cases to compel witnesses to
appear and testify and to compel the production of other evidence
runs to any part of the state and shall be executed by civil
officers or peace officers as described by the laws of the state.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.072. REFUSAL TO APPEAR OR TESTIFY. (a) A person not
subject to this chapter commits an offense if the person:
(1) has been duly subpoenaed to appear as a witness or to
produce books and records before a military court or before a
military or civil officer or peace officer designated to take a
deposition to be read in evidence before a court;
(2) has been duly paid or tendered by the adjutant general's
department the fees and mileage of a witness at the rates allowed
to witnesses under Section 432.192; and
(3) wilfully neglects or refuses to appear, qualify as a
witness, testify, or produce evidence that the person may have
been legally subpoenaed to produce.
(b) An offense under this section is punishable by fine not to
exceed $1,000 or confinement not to exceed 60 days in jail, or by
both. The witness may be prosecuted in the appropriate county
court.
(c) The appropriate prosecuting official for the state in a
county court having jurisdiction where the military proceeding
was convened, on submission of a complaint to the official by the
presiding officer of a military court, commission, court of
inquiry, or board, shall file an information against and
prosecute a person violating this section.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.073. CONTEMPT. A military court may punish for
contempt a person who uses a menacing word, sign, or gesture in
its presence, or who disturbs its proceedings by riot or
disorder. Punishment may not exceed confinement for 30 days and a
fine of $100.
Acts 1987, 70th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1987.
Sec. 432.074. DEPOSITIONS. (a) At any time after charges have
been signed, as provided in Section 432.051, a party may take
oral or written depositions unless the military judge, a
court-martial without a military judge hearing the case, or, if
the case is not being heard, an authority competent to convene a
court-martial for the trial of those charges forbids it for good
cause. If a depos