Criminal Law

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The Texas Legislature designates criminal offenses in our state's Penal Code as misdemeanors or felonies. Based on the relative seriousness of the offense, misdemeanors and felonies are classified into the categories.

Criminal attempt is one category lower than the offense attempted. Criminal conspiracy is one category lower than the most serious felony that is the object of the conspiracy. Criminal solicitation is a first degree felony if the offense solicited is a capital felony; a second degree felony if the offense solicited is a first degree felony.

Provisions are made for enhanced (increased) punishments for repeat and habitual offenders, offenders who intentionally select the victim or property damaged or affected because of the offender's bias or prejudice against a group, and offenders who administer or provide a controlled substance to the victim to facilitate commission of the offense.

Misdemeanor and felony drug offenses are classified in the Texas Health and Safety Code based on factors including: (1) the type and amount of drug; and (2) whether the defendant manufactured, delivered, or possessed the drug. Increased punishments are provided for certain drug offenses occurring in drug-free zones and use of a child (younger than 18 years of age) in commission of the offense.

A person may not be prosecuted for or convicted of any offense committed when younger than 15 except:

Unless the juvenile court transfers a child to district court for criminal prosecution, the child may not be prosecuted for any offense committed before age 17 except an offense described by (1)-(5) above.


After a crime is committed, the preliminary investigation by a law enforcement agency generally begins when responding officers arrive at the scene of the incident. Emergency matters are handled and the crime scene secured. In most cases an officer will meet with the victim in person to obtain important information concerning the crime. Witnesses are questioned. Any suspect at the scene is detained, questioned, and then released or arrested, depending on the circumstances.

Additional responsibilities during the preliminary investigation may include:

Despite a thorough preliminary investigation, many cases require a follow-up investigation to close the case, arrest an offender, and/or recover weapons or stolen property. The follow-up investigation can be conducted by the officers, who responded to the original call or, most often, by detectives.

Investigative leads that may need to be followed-up include:

Petty thefts and like misdemeanors will obviously not receive the same in-depth investigation as a major crime like murder or sexual assault.

After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution.

The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may:


Each person who is:

In addition, a victim, guardian of a victim, or close relative of a deceased victim is entitled to the right to be present at all public court proceedings related to the offense, subject to the approval of the judge in the case. And the prosecutor, juvenile probation department, sheriff, police, and other law enforcement agencies shall ensure to the extent practicable that a victim, guardian of a victim, or close relative of a deceased victim is afforded the preceding rights and, on request, an explanation of those rights.


The Crime Victims' Compensation Act (article 56.31 - article 56.64, Code of Criminal Procedure) creates a fund and establishes statutory guidelines to indemnify victims of crime and those who suffer personal injury or death as a result of criminally injurious conduct or in the good faith effort to prevent criminally injurious conduct, to apprehend a person reasonably suspected of having engaged in criminally injurious conduct, or to aid a peace officer. The money in the fund comes primarily from court costs and fees generated by criminal convictions. The fund is administered by the office of the Texas attorney general (1-800-983-9933).

The act provides that awards payable for pecuniary loss because of injury or death of a victim may not exceed $50,000 in the aggregate. The attorney general may award an additional $75,000 for extraordinary pecuniary losses, if the personal injury to a victim is catastrophic and results in a total and permanent disability to the victim, for lost wages and reasonable and necessary costs of: making a home or automobile accessible; obtaining job training and vocational rehabilitation; training in the use of special appliances; and receiving home health care. An application for compensation may not be filed unless the victim reports the crime to the appropriate local law enforcement agency within a reasonable time after the crime (does not apply if the victim is a child or the attorney general extends the time for extraordinary circumstances). The application must be filed with the attorney general within three years from the date of the crime unless the attorney general extends the filing time for good cause shown. If the victim is a child, the application must be filed within three years from the date the claimant or victim is made aware of the crime but not after the child is 21 years of age.

The attorney general may deny or reduce an award otherwise payable if, for example, the claimant or victim was engaging in an unlawful act, shares responsibility for the act or omission giving rise to the claim, or has not substantially cooperated with an appropriate law enforcement agency.


As a general rule, 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 Code of Criminal Procedure. For example, article 14.01 (b) provides that a peace officer may arrest an offender without a warrant for any offense committed in the officer's presence or view.

A private citizen may arrest an offender without an arrest warrant only when: (1) the citizen has probable cause to believe an offense is being committed in his/her presence or view, and the offense is one classed as a felony or against the public peace (e.g., DWI); or (2) to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the offender, if the offender can be taken, before a magistrate or peace officer for examination. To justify seizure under (2), there must be reasonable ground to believe the property is stolen, and the seizure openly made and the proceedings conducted without delay.

A magistrate may issue an arrest warrant on the basis of an affidavit made by any person under oath before the magistrate, establishing probable cause to believe another person has committed an offense. The arrest warrant commands a peace officer or some other person specially named to take the body of the accused, to be dealt with according to law. A summons may be issued in any case where a warrant may be issued, and is in the same form as the warrant except that it summons the defendant to appear before a magistrate at a stated time and place. If a defendant fails to appear in response to the summons a warrant will be issued.


The person making an arrest is required without unnecessary delay, but not later than 48 hours after the person is arrested, to take the person arrested before a magistrate. The magistrate is required to inform in clear language the person arrested of: (1) the accusation against the person arrested and of any affidavit filed therewith; (2) the right to retain counsel; (3) the right to remain silent; (4) the right to have an attorney present during any interview with peace officers or attorneys representing the state; (5) the right to terminate the interview at any time; (6) the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel; (7) the procedures for requesting appointment of counsel; (8) the right to have an examining trial; and (9) the person arrested is not required to make a statement and any statement made may be used against the person arrested. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.

A peace officer who is charging a person with committing an offense that is a class C misdemeanor (other than public intoxication), may, instead of taking the person before a magistrate, issue a citation (ticket) to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

If an indigent defendant is entitled to and requests appointed counsel and if adversarial proceedings have been initiated against the defendant, counsel is required to be appointed as soon as possible, but not later than the third working day after the date on which the court or the court's designee receives the defendant's request for appointment of counsel; not later than one working day in a county with a population of 250,000 or more.

Additional rights of an accused in a criminal prosecution include: the presumption of innocence until proven guilty beyond a reasonable doubt; the right against self-incrimination; the right to not be prosecuted for a felony unless indicted by a grand jury; the right to a copy of the accusation and a speedy trial by an impartial jury; the right to confront (cross-examine) the witnesses and to have compulsory process (subpoena) for obtaining witnesses, and the right of appeal.

The defendant in a criminal prosecution for any offense may waive any rights secured him/her by law. It should be noted, however, that in a capital felony prosecution in which the prosecutor notifies the court and the defendant that the state will seek the death penalty, the defendant does not have the right to waive trial by jury.


A criminal case is prosecuted in the name of the State of Texas against the accused (defendant), and is conducted by the appropriate prosecuting attorney (prosecutor) acting under the authority of the state.

Prosecution of a class C misdemeanor in municipal or justice court is initiated by filing a complaint. A complaint is a written affidavit made by some credible person charging the defendant with the commission of an offense.

Prosecution of a class A or B misdemeanor in a county court, county court at law or county criminal court is initiated by filing an information. An information is a written statement presented in behalf of the state by the prosecutor, charging the defendant with the commission of an offense. An information must be based on a proper complaint and the complaint must be filed with the information.

A felony is prosecuted in a district court or criminal district court and an indictment (sometimes called "bill of indictment") is required unless waived by the defendant. An indictment is a written statement of a grand jury presented to a court accusing a named person of some act or omission which, by law, is declared to be an offense.

The grand jury, organized by the district judge for a set term (usually 3 to 6 months), has jurisdiction only over offenses occurring in its own county. The prosecutor is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing or voting upon the issuance of an indictment. The grand jury determines whether there is sufficient evidence to require the accused to stand trial for a criminal offense. At least 9 of the 12 grand jurors must concur to issue an indictment ("true bill") and be present when the indictment is delivered to the judge or clerk of the court (to be filed in the court's records). If the grand jury does not find sufficient evidence the case is "no-billed" and the suspect discharged. A no-bill does not bar indictment by the same or different grand jury at a later date.

When an information or indictment is filed, if the defendant is not in custody or under bond, a capias may issue. A capias is a writ issued by the court or clerk, and directed "To any peace officer of the State of Texas," commanding the officer to arrest a person accused of an offense and to bring the accused before that court immediately, or on a day or at a term stated in the writ. Instead of a capias, the prosecutor may request that a summons be issued. A summons is in the same form as a capias except that it summons the defendant to appear before the proper court at a stated time and place. If the defendant fails to appear in response to the summons a capias will be issued.


The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits. The pre-trial hearing is to determine legal issues only such as: (1) arraignment of the defendant, if such be necessary; (2) appointment of counsel to represent the defendant, if such be necessary; (3) motions for change of venue; (4) motions for continuance; (5) defense motions to discover the state's evidence in the case; (6) defense motions to suppress (exclude) evidence; and (7) any other defense motion. These matters are decided by the judge; sometimes the defense and/or prosecution present evidence and/or witness testimony.


Plea Bargaining

The disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision, is called "plea bargaining." In exchange for the defendant pleading guilty or nolo contendere (no contest) and waiving the right of trial by jury, the prosecutor recommends a specific punishment which the judge can follow or reject. If the judge rejects the agreement, the defendant is permitted to withdraw his/her plea. If the judge follows the agreement, the defendant must obtain the judge's permission before the defendant may appeal any matter in the case except matters raised by written motions filed prior to trial. The defendant usually waives the right of appeal as part of the plea bargain. The vast majority of all criminal cases are resolved by plea bargaining.

Nonnegotiated Guilty Plea (Open Plea)

A defendant may plead guilty or nolo contendere to a criminal charge without an agreement with the prosecutor as to the punishment the prosecutor will recommend. The judge has the responsibility to assess the punishment applicable to the offense unless the defendant requests that a jury assess punishment. This is called a "nonnegotiated guilty plea" or "pleading open to the court." The defendant retains the right to appeal, but nonjurisdictional defects occurring prior to the entry of the plea may have been waived.


The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.

A criminal trial before a jury (sometimes called a "petit jury") proceeds as follows:

The judge assesses punishment unless the defendant requests the jury to assess punishment or the state seeks the death penalty in a capital felony.

The judge may be required to direct a supervision (probation) officer to prepare a presentence investigation report. Testimony concerning the circumstances of the offense may be considered by the judge or jury in determining the punishment to be assessed. Victim impact evidence (e.g., degree of physical or emotional injury to the victim) may be admissible as a circumstance of the offense if the evidence has some bearing on the defendant's personal responsibility and moral guilt. Evidence is also admissible concerning the defendant's prior criminal record, his/her general reputation and character, and any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant.

If the jury has the responsibility of assessing the punishment, the judge will give additional instructions as necessary and the order of procedure is the same as on the issue of guilt or innocence.

If the jury fails to agree to a unanimous verdict on punishment, a mistrial is declared only in the punishment phase of the trial and the jury discharged. The court shall impanel another jury as soon as practicable to determine the issue of punishment.

Prior to the imposition of sentence by the court, if the court has received a victim impact statement it must consider the information provided in the statement.

Before sentencing the defendant, the court is required to permit the defendant or his/her counsel a reasonable time to read the statement, comment on the statement, and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement.

After sentence is pronounced, the court shall allow the victim, close relative of a deceased victim, or guardian of a victim to appear in person to present to the court and to the defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim.


The prosecutor may, with the consent of the judge, dismiss a criminal case.

Common reasons for dismissal include:


Local correctional facilities designated by law for the confinement of persons include:

The institutional division of the Texas Department of Criminal Justice operates and manages the state prison system with more than 100 facilities located across the state, including:


Community supervision, formerly called "probation," means that the defendant is released into the community under certain conditions set by the court and subject to court supervision. The maximum period of community supervision is ten years in a felony case; two years in a misdemeanor case (three years if extended by the judge). However, if the offense is indecency with a child, sexual assault, or aggravated sexual assault, the judge may extend the period of supervision for a period not to exceed 10 additional years. And the judge may extend the period in a misdemeanor case not to exceed an additional two years beyond the limit to pay the fine, costs, or restitution.

Basic conditions of community supervision include, for example, that the defendant:

A defendant's eligibility for community supervision depends on factors including:

One type of community supervision is a regular community supervision. The defendant is convicted and given a term of confinement which the judge immediately suspends and then places the defendant on community supervision.

In a deferred adjudication community supervision, after receiving the defendant's plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, the judge defers further proceedings without entering an adjudication of guilt and places the defendant on community supervision. Unlike the other types of community supervision, if the defendant successfully completes the supervision period, the judge is required to dismiss the proceedings and discharge the defendant. However, if the defendant violates a condition of the deferred adjudication community supervision, the defendant may not appeal the court's decision to proceed with the adjudication of guilt on the original charge.

Finally, in a continuing jurisdiction community supervision (formerly called "shock probation") or state boot camp program, the defendant is convicted and given a sentence requiring confinement. After serving a set period of confinement, the judge may suspend further execution of the sentence and place the defendant on community supervision.

At any time during the period of any community supervision, the prosecutor may file a motion to revoke and the judge may issue a warrant for violation of any of the conditions of the supervision and cause the defendant to be arrested and held without bond until a hearing within 20 days after demand. The state must prove by a preponderance of the evidence (greater weight and degree of credible evidence) that the defendant violated the conditions of the community supervision. After a hearing without a jury, the judge may either continue, extend, modify or revoke the community supervision or, in a deferred adjudication community supervision, proceed to adjudication. In a deferred adjudication, the judge may assess the full range of punishment prescribed for the offense; if it is one of the other types of community supervision, the judge may not go beyond the original term of confinement. No part of the time that the defendant is on community supervision shall be considered as any part of the time that he/she shall be sentenced to serve.


An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to determine whether errors were committed in the trial that require a retrial or acquittal. The decision of the appellate court is made without a jury.

The state is entitled to appeal a limited number of orders of a court in a criminal case. For example, the state may appeal an order:

The state may not appeal from a judge's decision or jury's verdict finding a defendant not guilty of an offense.


Parole is a system by which a prisoner earns the privilege to be released from prison prior to completing the full sentence. A prisoner may earn time off his/her sentence through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

A prisoner under sentence of death is not eligible for parole.

A prisoner serving a life sentence for a capital felony committed on or after September 1, 2005, is not eligible for parole.

If a prisoner is serving a life sentence for a capital felony committed on or after September 1, 1993, the prisoner is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 40 calendar years; it is one-half of the maximum sentence or 30 calendar years, whichever is less, if the trial court enters an affirmative finding that the prisoner used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited, or the prisoner is serving a sentence for murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, or sexual assault.

In most other cases prisoners may be eligible for release on parole when their calendar time served plus good conduct time equals one-fourth of the maximum sentence or 15 years, whichever is less.

The decision whether to grant parole is made by the pardons and paroles division of the Texas Department of Criminal Justice (512/406-5250; for victims only 1-800-848-4284). A prisoner released on parole remains under the division's supervision and control subject to conditions much like a defendant placed on community supervision (e.g., report to a parole officer as directed; pay restitution to the victim).


There are significant differences in the procedures used to process juvenile and adult offenders. Despite the procedural differences and the considerable discretion associated with juvenile proceedings, juveniles have many of the rights and protections provided defendants in adult criminal proceedings.

Each county's juvenile board (county judge, district judges, and judges of any statutory courts designated as a juvenile court) is required to designate one or more district, criminal district, domestic relations, juvenile, county courts or county courts at law as the juvenile court. The juvenile court has exclusive original jurisdiction over proceedings under the Juvenile Justice Code (Title 3, chapters 51-61, Family Code) involving children between the ages of 10 and under 17, and children who are between 17 and under 18, but who committed offenses before becoming 17.

Venue is in

A law enforcement officer who takes a child into custody may dispose of the case without referral to juvenile court, if:

If the case or child is referred to juvenile court, a person authorized by the court (usually someone from the juvenile probation department) is required to conduct a preliminary investigation to determine whether the person referred to juvenile court is a child under the Juvenile Justice Code and there is probable cause to believe the person engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released.

Each county is required to provide a suitable place of detention for children, separated by sight and sound from any adults detained in the same building. When a child is taken into custody, if the child is not released a detention hearing without a jury shall be held within two working days after the child is taken into custody; the next working day if the child is detained on a Friday or Saturday.

The child may be detained if:

A detention order extends to the conclusion of the disposition hearing, if there is one, but in no event for more than 10 working days. Further detention orders may be made following subsequent detention hearings.

If a preliminary investigation results in a determination that further proceedings in the case are authorized, the designated officer of the court may, subject to the direction of the juvenile court, advise the parties for a reasonable period of time not to exceed six months concerning deferred prosecution and rehabilitation of the child if:

A juvenile court may, on petition filed by the prosecuting attorney, waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

If the juvenile court waives jurisdiction and transfers the child for criminal proceedings, he/she shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. However, no person may be punished by death for an offense committed while younger than 18 years.

If the juvenile court does not transfer the child for adult criminal proceedings, the juvenile court may, on petition of the prosecuting attorney, conduct an adjudication hearing. Trial shall be by jury unless waived by the child and his/her attorney. If the judge or jury does not find beyond a reasonable doubt that the child engaged in delinquent conduct or conduct indicating a need for supervision, the court shall dismiss the case. If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision, the court shall conduct a disposition hearing.

At the disposition hearing, if the judge or jury does not find that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made, the court shall dismiss the child and enter a final judgment without any disposition.

If the judge or jury finds that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made:

A court may issue an order against a child to protect a victim of the child's conduct who, because of the victim's participation in the juvenile justice process, risks further harm by the child. In the order, the court may prohibit the child from doing specified acts or require the child to do specified acts necessary or appropriate to prevent or reduce the likelihood of further harm to the victim by the child.

An appeal from an order of a juvenile court is to a court of appeals, and the case may be carried to the Texas Supreme Court (unlike adult criminal appeals which may be carried to the Court of Criminal Appeals).


Grand jury proceedings are secret and consequently closed to the public.

The proceedings and trials in all courts are public.

However, the court may exclude the public from juvenile hearings for:

A court may order witnesses excluded from the courtroom under "the rule" so that they cannot hear the testimony of other witnesses.

Witnesses may not converse with each other or with any other person about the case, except the lawyers involved in the case.

Witnesses cannot read, watch or listen to any report of or comment upon the testimony in the case while the trial is being conducted. This rule does not authorize exclusion of the victim, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.


A municipal court (sometimes called "city" or "corporation" court) has exclusive original jurisdiction within the territorial limits of the municipality in all criminal cases that:

The municipal court has concurrent jurisdiction with the justice court of a precinct in which the municipality is located in all criminal cases arising under state law that:

Justice courts (justices of the peace) have original jurisdiction in criminal cases:

The county courts, county courts at law and county criminal courts have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed exceeds $500.

The county courts also have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction; these appeals (except from municipal courts of record) are by trial de novo (the case is tried anew or again as if there had been no prior trial).

District courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under article 4.17 of the Code of Criminal Procedure (when the county judge is not a licensed attorney).

Courts of appeals have appellate jurisdiction within the territorial limits of their respective districts which includes:

The state is divided into fourteen courts of appeals districts with a court of appeals in each district.

The Court of Criminal Appeals in Austin is our state's highest court for criminal matters - it has final appellate and review jurisdiction in criminal cases within the territorial limits of the state, and its determinations are final.

The appeal of all cases in which the death penalty has been assessed go directly to the Court of Criminal Appeals, and it may review any decision of a court of appeals in a criminal case.

All information in this website is not legal advice, is not intended to be legal advice and is for informational purposes in order to help you in your decision to hire an attorney only. You should consult with as many attorneys as you feel necessary before you choose to hire one. The attorney-client relationship is only formed by written agreement and consent of both of the parties. Any and all medical bills or other costs are your responsibility regardless of the outcome of the case or any contingency fee arrangements with Carl J Selesky. All trademarks and copyrights are reserved. Carl J. Selesky is a licensed attorney in the State of Texas, in State and Federal Courts. Mr. Selesky is not licensed in any other State.

Carl J. Selesky is not certified by the Texas Board of Legal Specialization.
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