The Crim Pro Ex Libris Juris series highlights general topics and legal information resources on Texas Criminal Procedure. This post summarizes the information found in the State Bar of Texas Criminal Justice Section publication The Texas Criminal Justice Process: A Citizen’s Guide, the Wex legal dictionary of the Legal Information Institute, and the Texas Code of Criminal Procedure.
Like civil procedure, criminal procedure has three general phases: pre-trial, trial, and post-trial. These three phases include common criminal procedure actions such as the pre-arrest investigation, arrest, court (pre-trial hearings and trial) appearances, sentencing, and appealing, resulting in either incarceration or release. Post-trial also includes reentry, because most people who were previously incarcerated still interact with criminal procedure daily even after release.
Via the State Bar of Texas Criminal Justice Section. Click image to view larger version in a new tab.
Pre-Trial
Pre-arrest
The criminal procedure process begins with a preliminary investigation of a crime conducted by a law enforcement agency. A follow-up investigation may be necessary to close the case, arrest suspects, and/or seize weapons or stolen property. After law enforcement has completed the investigation, the case may then be filed with the prosecuting attorney. A criminal case is prosecuted in the name of the State of Texas by the prosecuting attorney (prosecutor). The prosecutor reviews the case and decides to:
accept the case for prosecution and
increase or reduce the charges or
file additional and/or different charges,
return the case to law enforcement for further investigation,
or reject the case for prosecution.
Arrest
An arrest warrant is issued after prosecution of a criminal case is initiated. Prosecution is often initiated when a written statement or affidavit is submitted by a “credible person charging the defendant with the commission of an offense.”
Prosecution of a Class C misdemeanor is initiated when a complaint is filed with the municipal or justice court.
Prosecution of a Class A or B misdemeanor is initiated when an information is filed with the county court at law or county criminal court.
Prosecution of a felony is initiated when an indictment is filed. An indictment “formally charges a person with a criminal offense.”
If the defendant is not in custody or under bond when the complaint, information, or indictment is filed, then then court or clerk may issue a capias. A capias is a writ that commands a peace officer to arrest a person accused of an offense and bring them before the court immediately.
A prosecutor may request that instead of a capias, a summons be issued to the defendant. If the defendant fails to appear according to the summons, a capias will be issued.
Arrest without a warrant
Generally, a peace officer must obtain an arrest warrant before taking a person into custody. But a peace officer may arrest a person without a warrant only if: (1) there is probable cause to believe that the person committed an offense; and (2) the arrest falls within one of the exceptions specified in Chapter 14 of the Texas Code of Criminal Procedure.
Bail
After a suspect is arrested, a judge will set the suspect’s initial bail, an amount of money that if paid, allows a defendant to be released from jail after the initial arrest while waiting for upcoming hearings. If the defendant appears at the hearings, the bail will be refunded. If the defendant fails to appear, the court keeps the bail and a warrant is issued for arrest of the defendant.
Dismissal
The prosecutor may, with consent of the judge, dismiss a criminal case before going to trial for reasons including insufficient evidence, suppression of crucial evidence, mistakes in the filing of the case, by request of the victim, the defendant pleads guilty to other charges, the defendant has never been arrested, or necessary witnesses cannot be located.
Trial
Appearances
In the first appearance in court after being arrested for a crime, called the arraignment or preliminary arraignment, the judge reads the defendant's charges, asks the defendant if they need a court-appointed attorney, asks the defendant to plea, and sets dates for future court appearances.
The arraignment is followed by a preliminary hearing, during which “the judge determines whether enough evidence exists for the prosecution to meet its burden of persuasion.”
The preliminary hearing is followed by a pre-trial hearing during which the prosecution and defense may bring additional motions before the judge.
Plea Bargaining
Plea bargaining is when the prosecution and defense reach an agreement, under judicial supervision, to modify or drop the criminal charges if the defendant agrees to plea guilty.
Non-negotiated guilty plea (open plea)
A defendant may plead “nolo contendere” to a criminal charge without making a plea deal with the prosecutor. This allows the defendant to neither accept nor deny the criminal charges while still accepting the punishment that is then determined by the judge or jury during trial.
Trial by jury
Article V of the Texas Constitution guarantees anyone accused of a crime the right to a trial by jury. The right to trial by jury is also guaranteed in the Sixth and Seventh Amendments of the U.S. Constitution. Except for in felony cases in which the prosecutor has notified the court that the state will seek the death penalty, a defendant may waive their right to a trial by jury and instead proceed with “trial to the court” (judge) with the consent and approval of the judge and prosecutor.
Judgment/verdict
A verdict is the resolution of a case with a decision by the jury or judge to hold the defendant either guilty or not guilty of committing the offense.
Not guilty
If a defendant is found not guilty at trial, it does not mean that the defendant is “innocent but rather that for legal purposes they will be found not guilty because the prosecution did not meet the burden of proof.”
Acquittal
By contrast, if a defendant is found not guilty and is also acquitted of the crime, the defendant is “judicially discharged from [the] accusation and is absolved.”
Post-Trial
Sentencing
In some states, the judge or jury sets the sentence at trial, while in others, a separate sentencing hearing may be held.
Community Supervision/Probation
When recommended for community supervision, formerly known as “probation,” the defendant is released into the community under certain conditions and is subject to court supervision for a defined amount of time.
Incarceration
If a defendant is found guilty at trial and does not qualify or was not recommended for community supervision, they are committed to a prison or jail to serve their sentence by incarceration according to the punishment decided by the judge or jury.
Local correctional facilities include:
Municipal jails: hold arrested persons until released on bond or transferred to county jail
County jails: hold defendants awaiting trial, awaiting transfer to prison, or confined for a misdemeanor or violation of community supervision
Community corrections facilities: restitution centers, boot camps, substance abuse facilities
State prison facilities managed by the Texas Department of Criminal Justice include:
Transfer facilities: hold defendants waiting for transfer to prison
Boot camps: for first-time felony offenders (age 17-25)
State jail facilities: for defendants convicted of state jail (4th degree) felonies
Substance abuse felony punishment facilities (SAFPFs)
Psychiatric and minimum, medium, and maximum security prisons for offenders convicted of capital, 1st, 2nd, and 3rd degree felonies
Private prisons: pre-release centers for those awaiting release on parole
Appeal
Criminal defendants may appeal the verdict of their case by bringing their case before a higher court to challenge the legal determinations made by the lower court. Chapter 44 of the Texas Code of Criminal Procedure outlines the procedures and qualifications for criminal appeals.
Release
Parole
If an incarcerated person is granted parole, they are released from prison before completing the full sentence based on certain conditions. The Pardons and Paroles Division of the Texas Department of Criminal Justice reviews requests for parole. Anyone released on parole is subject to the division’s supervision and conditions similar to community supervision.