The Criminal Case Process in Texas

Most Texas criminal cases begin with an investigation period — a detective's questions at the door, a target letter from the U.S. Attorney's Office, a grand-jury subpoena, or a search warrant served on a home, phone, or business. During this phase the State (or the federal government) is collecting evidence. You may not know you are a target until the case is far along.

Two constitutional rights govern this phase. The Fourth Amendment requires that any search be supported by a warrant based on probable cause, with specific exceptions (consent, exigency, automobile, plain view). The Fifth Amendment privilege against self-incrimination means you do not have to answer questions or sit for an interview. Texas Code of Criminal Procedure Article 38.22 strictly governs custodial statements; Texas's statutory exclusionary rule at CCP Art. 38.23 is broader than the federal rule — evidence obtained in violation of any law (state or federal) is generally inadmissible.

What happens during investigation determines what evidence the prosecution will have at trial. Confessions made before an arrest get litigated for years. Consent to a search rarely benefits the person consenting. The phone you hand over voluntarily is the phone the State will read for the next eighteen months.

An officer may arrest you on a warrant or, in defined circumstances, without one. Warrantless arrests are limited by CCP Chapter 14 to offenses committed in the officer's presence, felony probable cause, or specific carve-outs (family violence, DWI). After the arrest you are taken to the jail to be booked: fingerprints, photograph, medical screening, property inventoried, classification for housing.

Booking is also when the State tries to lock in the case. Officers may seek consent to search your phone. Investigators may request a recorded interview. In DWI cases you will be asked for a breath or blood specimen — Texas's implied-consent law at Transportation Code § 724 allows refusal, but refusal triggers an Administrative License Revocation (ALR) hearing within 15 days.

Texas Code of Criminal Procedure Article 14.06(a) requires that officers take an arrestee before a magistrate without unnecessary delay. In practice that means the 15.17 hearing happens within roughly 24 to 48 hours of booking; this phase is short, but everything that gets said or signed during it sticks.

Texas Code of Criminal Procedure Article 15.17 requires that an arrested person be brought before a magistrate without unnecessary delay, but not later than 48 hours after arrest. The magistrate informs the accused of the charge, the rights to counsel and to remain silent, the right to terminate any interview, the right to request appointed counsel if indigent, and the right to an examining trial in felony cases.

The magistrate also sets initial bail. CCP Chapter 17 lists the factors: nature and circumstances of the offense, weight of the evidence, defendant's ability to pay, prior criminal history, ties to the community, and danger to the community or to any victim. Recent Texas reforms — including Senate Bill 6 (2021) and follow-on legislation — restrict cash-only bail for certain violent offenses and require risk-informed decisions.

Bond comes in several forms. Cash bond requires the full amount; the court returns it after the case if conditions are met. Surety bond is a bail bondsman's promise backed by collateral, typically at a 10% non-refundable premium. Personal recognizance (PR) bond requires no money but does require strict compliance with conditions. Pretrial supervision often includes drug testing, GPS monitoring, no-contact orders, alcohol restrictions, and travel limits.

Texas Constitution Article I, Section 10 guarantees that no person shall be held to answer for a felony unless indicted by a grand jury — except in cases of impeachment, or with a knowing waiver under CCP Art. 1.141. The grand jury is composed of twelve people who hear the State's evidence in secret; nine votes are required to return a true bill (indictment).

Misdemeanors proceed on an information — a sworn pleading filed by the prosecutor in county court. Felonies proceed by indictment in district court. The formal charging document determines the punishment range: a Class B misdemeanor caps at 180 days county jail; a state-jail felony runs 180 days to 2 years state jail; a first-degree felony exposes the defendant to 5-99 years or life in TDCJ under Tex. Penal Code Chapter 12.

In federal cases, the U.S. Attorney presents to a federal grand jury under Federal Rule of Criminal Procedure 6. Federal indictments are typically broader and include more specific allegations (loss amounts, drug quantities, role) because federal sentencing turns on those numbers under 18 U.S.C. § 3553(a) and the U.S. Sentencing Guidelines.

Before 2014, Texas criminal discovery was famously narrow. The Michael Morton Act, enacted in 2013 and codified at CCP Art. 39.14, changed that. On timely request, the State must produce all offense reports, witness statements, designated exhibits, photographs, recordings, and electronically stored information that constitute or contain evidence material to any matter involved in the action.

Brady v. Maryland and its progeny impose a constitutional duty on prosecutors to disclose exculpatory evidence — including impeachment information about State witnesses (Giglio v. United States). This obligation is continuing: even after indictment, even during trial, the State must produce new exculpatory material as it becomes known. A Brady violation discovered post-conviction can support a new trial or a habeas grant under CCP Chapter 11.

While the State produces discovery, the defense investigates independently: interviewing witnesses, retaining experts (forensic, accident reconstruction, mental health, digital forensics), subpoenaing private records, visiting the scene, and analyzing the recordings the State has produced. The two investigations often produce conflicting accounts; that conflict is the foundation for trial strategy and plea leverage.

Texas's statutory exclusionary rule at CCP Art. 38.23 is one of the broadest in the country: evidence obtained in violation of any provision of the constitution or laws of Texas, or the U.S. Constitution, cannot be admitted against the accused. That goes beyond Fourth Amendment law and reaches statutory violations a federal motion would not catch.

Common pretrial motions include: motion to suppress (statements, search-warrant fruit, blood draws, identifications), motion to quash the charging instrument (CCP Art. 27.08), motion in limine (limiting trial topics), motion for speedy trial under the Sixth Amendment and Tex. Const. Art. I § 10, motion to recuse, motion to disqualify the prosecuting attorney's office (Texas Disciplinary Rules of Professional Conduct), and motion for change of venue.

Several Texas counties operate pretrial-diversion or specialty-court programs (mental-health docket, veterans court, DWI court, drug court). Eligibility depends on offense, prior record, and program capacity. A successful diversion typically results in a non-conviction outcome — vital for clean expunction eligibility under CCP Chapter 55.

Texas Code of Criminal Procedure Article 26.13 requires the trial court to admonish a defendant before accepting any plea: the punishment range, the consequences of failing to complete probation, the deportation consequences, the sex-offender registration consequences (if applicable), and the absence of certain appellate rights from a plea bargain. These admonishments are part of the official record.

Plea deals come in three structures. Charge bargains reduce the level of offense charged (e.g., a felony to a misdemeanor). Count bargains dismiss some counts in exchange for a plea to others. Sentence bargains agree on a specific punishment recommendation. Federal cases use the same structures but the practical effect is filtered through the U.S. Sentencing Guidelines and 18 U.S.C. § 3553(a) factors.

Counsel has a constitutional duty to communicate plea offers (Lafler v. Cooper) and to advise on collateral consequences such as deportation (Padilla v. Kentucky). The Padilla rule in particular has reshaped how non-citizen pleas are handled — categorical or aggravated-felony pleas can trigger removal regardless of the sentence.

Voir dire — jury selection under CCP Chapter 35 — comes first. Each side has peremptory strikes (ten per side in non-capital felonies; three in misdemeanors). Strikes cannot be exercised on the basis of race or gender; Batson v. Kentucky and J.E.B. v. Alabama govern challenges to discriminatory strikes. Jurors are also struck for cause when bias is shown.

After jury selection comes opening statements, the State's case-in-chief, motions for directed verdict (CCP Art. 36.16) if the State's evidence is legally insufficient, the defense case (the defendant has no obligation to testify and the jury is instructed accordingly), rebuttal, closing arguments, the jury charge (Tex. Const. Art. V § 13 requires unanimous verdict), and deliberation.

If guilty, Texas allows the jury to assess punishment if elected before voir dire — otherwise the judge sets sentence. Federal practice is different: a jury determines guilt; the judge sentences under the U.S. Sentencing Guidelines and 18 U.S.C. § 3553(a). Sentencing hearings can run hours and turn on character witnesses, expert testimony, victim impact, and prior history.

Texas Penal Code Chapter 12 fixes punishment ranges by class and degree: Class C misdemeanor (fine only), Class B (up to 180 days county jail), Class A (up to 1 year), state-jail felony (180 days to 2 years), third-degree felony (2-10 years), second-degree (2-20), first-degree (5-99 or life), capital felony (life without parole or death). Enhancements push the range up for prior convictions, deadly-weapon findings, and offenses against children, peace officers, or elderly victims.

Texas allows several sentencing structures. Deferred adjudication under CCP Art. 42A.101 defers a finding of guilt while the defendant completes community supervision — a successful completion supports later non-disclosure under Tex. Gov't Code Ch. 411. Straight probation (community supervision) follows a conviction. Straight time means doing the sentence in jail or TDCJ. Eligibility for each option depends on offense, prior record, and judge discretion.

Federal sentencing is more structured. The U.S. Sentencing Guidelines produce an advisory range based on the offense level and criminal history category. Courts must also consider the 18 U.S.C. § 3553(a) factors (nature of offense, history of defendant, need for deterrence, protection of public, rehabilitation, parsimony principle). Variances from the Guidelines range are common when mitigation is presented effectively.

Direct appeal challenges errors at trial. In Texas, the notice of appeal is due within 30 days of sentencing (90 days if a motion for new trial is filed) under Texas Rules of Appellate Procedure 25 and 26. The court of appeals reviews preserved errors (objections made and ruled on at trial). Federal appeals go to the U.S. Circuit Court of Appeals (the Fifth Circuit for Texas) with 14-day notice under Fed. R. App. P. 4.

Habeas corpus under CCP Art. 11.07 (post-conviction) and Art. 11.072 (community supervision) addresses constitutional violations not reachable on direct appeal — ineffective assistance, newly discovered evidence, Brady violations discovered post-trial. Federal habeas under 28 U.S.C. § 2254 follows AEDPA's strict one-year statute and exhaustion requirements.

Expunction under CCP Chapter 55 clears the entire record of an arrest from public databases for dismissals, acquittals, deferred-adjudication cases that ended without conviction in specific situations, and certain other outcomes. Non-Disclosure under Tex. Gov't Code Ch. 411 (Order of Non-Disclosure) seals the record from public view but preserves it for law-enforcement, prosecutor, and licensing-agency access — primarily for successfully completed deferred adjudication.