12.3: Texas Criminal Justice Process

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The Texas court system must account for and address two conflicting goals: the need to protect the health, welfare and safety of the state’s people and the requirements to protect the rights and liberties of the accused. The state’s criminal justice system incorporates an intentional bias in favor of the accused. In addition, the state must ensure that every person is treated equally in legal matters. This fair treatment through the normal judicial system, a general right to which each citizen is entitled, is known as due process. The procedural steps in the Texas criminal justice process have been thoroughly discussed in chapter 8 addressing the Texas court system:

crime investigation;
arrest;
prosecutorial review;
formal complaint;
grand jury and indictment;
arraignment;
discovery;
pretrial matters;
trial and sentencing;
appeals.

This section will focus on policing, trials, and post-trial remedies.

Policing Police investigations play an integral role in the criminal justice system. The primary mechanisms used by law enforcement officials when investigating crimes are interviews of potential eyewitnesses, custodial interrogations of suspects, recorded observations, and collecting and preserving physical and forensic evidence at the crime scene. Their importance, however, does not mean that they and their tactics are infallible. Law enforcement officers can and do make mistakes, and those mistakes can jeopardize the successful prosecution of a case or, on fewer occasions, result in the possible incarceration of an improperly accused individual. For these reasons, police officers should follow constitutional, statutory, and regulatory guidelines when they investigate crimes.¹⁵

If there is insufficient evidence against a specific individual, the case may be quickly closed. If the alleged perpetrator is identified and there is sufficient evidence to justify an arrest, law enforcement officials may arrest the accused before involvement of any prosecutor or court. This often occurs when it is determined that the arrest is necessarily to protect the health, safety and welfare of the public. In other cases, when the defendant is not already in jail, law enforcement officials must rely on prosecutors to procure arrest warrants. In many cases, this type of arrest is based upon probable cause—the reasonable belief that a crime has been committed or is about to be committed. This process is governed by Title 1, Chapter 15 of the Texas Code of Criminal Procedure.¹⁶

In such cases, law enforcement officials complete a sworn affidavit about the facts they have gathered in conjunction with their investigation. That affidavit serves as the basis for a prosecutor’s argument to a judge that an arrest warrant should be issued. An arrest warrant is a written order from a judge directed to a peace officer or some other person specially named to take an individual into custody. The arrest warrant is executive when the alleged perpetrator is arrested.

If an accused it not yet arrested by law enforcement officials, once the investigation is substantially completed, those officials will present the case to the County Attorney or District Attorney, depending on the severity of the offense alleged. These attorneys determine whether there is enough evidence to charge the suspect with an offense, and if so, what type of offense. They also review the case and determine if there is enough evidence to proceed to court look for possible legal problems that may affect the case. These attorneys may also request additional investigation or information if they believe the potential case is questionable.

A complaint is a document that officially charges a person with a crime. It must be sworn to by someone with knowledge of the crime. If there is sufficient evidence, and the law supports a criminal case, the suspect may be charged with a crime by a legal document called an information. An information is a formal charging document that describes the criminal charges against a person and the factual basis for those charges that does not require a grand jury's vote.¹⁷ The prosecutor may file an information and obtain an arrest warrant from a court for the accused if that individual has not already been arrested. An information is often the charging document used by prosecutors in misdemeanor cases.

In more serious cases, felonies, the legal document that sets out exactly what the defendant is charged with is called an indictment. If an indictment is returned by a grand jury, it will serve as the legal basis upon which the person accused of a crime will be arrested. This is not the trial but a hearing to determine if there is enough evidence to arrest a suspect and proceed to a trial. Grand juries are provided for in Article 1, Section 10 of the Texas Constitution.

Next, a criminal defendant is advised of the charges in a post-arrest court proceeding called an arraignment and is asked to enter a plea to the charges. If the defendant or is financially incapable of employing an attorney, a court will appoint an attorney to represent the defendant.

Bail is often resolved at the arraignment. Bail is the amount of money that the defendant will forfeit if he or she fails to show up for their trial. he availability of bail is typically determined according to laws passed by the Texas legislature. Those laws are found in Title I, Chapter 17 of the Texas Code of Criminal Procedure. However, the judge may also take into consideration the seriousness of the offense, the defendant's ability to make the bond, the safety of the victim, and the safety of the witnesses. Bail can be tremendously expensive, especially for those who lack substantial or any income. Federal courts have consistently held that the Eighth Amendment prohibits “excessive bail” that unnecessarily keeps defendants in jail before trial.¹⁸ Harris County intervened in 2016, alleging that several individuals charged with low-level offenses remained jailed because they could not afford to pay for their release. The following year, a federal judge declared this practice unconstitutional. Harris established a new policy of “automatic, no-cash pretrial release for about eighty-five percent of low-level defendants. It also added additional legal and social services for poor arrestees and help for getting them to their court dates.”¹⁹ Governor Abbott has asked the Texas legislature to look at reversing some of the Harris County changes in 2001.²⁰

Trials

At a pretrial hearing between the judge and attorneys, the judge will rule on what will be admitted as evidence. Unless a plea bargain is reached—any agreement whereby the defendant agrees to plead guilty or nolo contendere (no contest) to a particular charge in return for some concession from the prosecutor—the case proceeds to trial.

Once a case goes to court, the prosecution bears the burden of proving the defendant’s guilt beyond a reasonable doubt. The defendant does not have to prove his or her innocence.
The trial may be in front of a jury or a judge. A jury is required when the defendant’s punishment, if convicted, could include incarceration or the death penalty. Otherwise, a defendant can waive the right to a jury trial and request a bench trial, a trial in front of a judge rather than a jury. If the defendant is found "guilty," a conviction occurs, and the jury proceeds to the punishment phase of the trial. If not, the defendant is declared "not guilty" and is free.

Criminal trials in Texas are divided into separate parts, one part focuses on the judgment of guilt or innocence, and the other part focuses on sentencing. In the state, if the jury finds the defendant guilty, the next step is sentencing. The jury, not the judge, determines the punishment, and juries are somewhat restricted during this phase since the punishment ranges for both misdemeanor and felony criminal cases in Texas are set forth in Title 3, Chapter 12 of the Texas Penal Code.²³ Table 12.1 earlier in this chapter lists the punishments associated with various crimes.

Every convicted defendant has the right to appeal.

Post-Trial Remedies

Every defendant who is sentenced to a term in prison will, at some time, become eligible for release before serving all of the sentence, except those who receive life imprisonment without the possibility of parole. As with appeals, this area of the law is very complicated. Generally, the law provides that a person convicted of a more serious crime will spend a greater portion of his or her sentence in prison. The most serious crimes are called 3g Offenses because they are listed in Section 3g of the Texas Code of Criminal Procedure. In those cases, convicts usually serve thirty-five to forty years. For non-3g offenses, a convicted offender “become parole-eligible when he or she has served actual calendar time plus good conduct time equaling twenty-five percent of the sentence or fifteen years (the lesser of the two).”²⁴

Once a convict becomes eligible for parole, he or she has the right to participate in any parole proceeding involving his or her case, including appearing in person before a member of the parole board. The Board of Pardons and Paroles decides which eligible offenders to release on parole or discretionary mandatory supervision, and under what conditions. The Board uses guidelines to weight each offender's likelihood of a successful parole against the risk to society that he released inmate may impose.²⁵ The Parole Board also decides whether to revoke parole if conditions are not met, using a graduated sanctions approach. Depending on the seriousness of the violation, the Parole Board may continue parole, impose additional conditions, place the offender in an Intermediate Sanction Facility, or use other alternatives to seeking a revocation of the defendant’s parole and sending the offender back to prison. Additionally, the board recommends clemency matters, including pardons, to the governor.

15. Findlaw., “How Do the Police Investigate Crimes?” Thomson Reuters, Jan. 13, 2019, https://www.findlaw.com/criminal/cri...will%20support.

16. Tex. Code of Crim. Proc., Ch. 15 (2019), https://statutes.capitol.texas.gov/D.../htm/CR.15.htm.

17. Findlaw., “How Does a Grand Jury Work?” Thomson Reuters (2019), https://www.findlaw.com/criminal/cri...ous%20felonies.

18. Jolie McCullough, “Harris County Agreed to Reform Bail Practices that Keep Poor People in Jail. Will It Influence Other Texas Counties?” Texas Tribune, July 31, 2019, https://www.texastribune.org/2019/07...-dallas-texas/.

19. Tex. Const., Art. 1, Sections 11 (1993), 11a (1993) and 11b (2007) (Retrieved from https://statutes.capitol.texas.gov/D.../CN.1.htm#1.11).

20. U. S. Const. amend. VIII.

21. McCullough, “Harris County Agreed to Reform Bail Practices,” https://www.texastribune.org/2019/07...t-dallas-texas.

22. Joe McCullough, “Harris County Got Rid of Cash Bail for Many People Accused of Minor Crimes. GOP Lawmakers Want to Walk That Back,” Texas Tribune, Mar. 3, 2021, https://www.texastribune.org/2021/03...ty-bail-texas/.

23. Tex. Pen. Code, Title 3, Ch. 12 (1994), https://statutes.capitol.texas.gov/D...DEGREE%20FELON Y%20PUNISHMENT.-,(a)%20An%20individual%20adjudged%20guilty%20of%20a%20felony%20of%20the,or%20less%20than%202%20years.).

24. Greg Tsioros, “When Are You Eligible for Parole in Texas? -What About Parole for All Other Offenses in Texas?” (2020), https://txparolelaw.com/eligible-for...from%20custody.

25. Texas Board of Pardons and Paroles, Revised Parole Guidelines (2019).