Law & the Media in Texas — Search & Seizure

The Criminal Process

The Court System: Search and Seizure

The Fourth Amendment of the U.S. Constitution safeguards “the people” in their “persons, houses, papers and effects” from “unreasonable” searches and seizures.

The amendment relies primarily upon requirement of a search warrant, issued “upon probable causes, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.”

In recent years situations involving questionable searches have often been in the news and the courts. Search without a warrant, “plain sight,” “probable cause,” “furtive gesture” and “no knock” have been among the issues.

The U.S. Supreme Court ruled in 1973 that police may make a complete search of anyone under lawful arrest. The ruling came in two cases in which drugs were found after routine stops for traffic offenses. The Supreme Court has given the police even greater authority to conduct searches in recent years.

The exclusionary rule of evidence bars the use of evidence obtained through an illegal search of seizure.

The Arrest

A law enforcement officer may make an arrest when:

1.   A crime is committed in his or her presence,

2.   He or she has trustworthy information that a crime has been committed and the suspect is involved or

3.   He or she has an arrest warrant, known technically as a capias. Such a warrant is issued on the filing of a complaint.

The Complaint

A formal complaint must be filed before a criminal prosecution can proceed.

Usually the complaint originates when an offense has been committed and a suspect identified. This generally involves an appearance by officers or citizens before a city magistrate, a justice of the peace or in some places a prosecuting attorney.

The suspect may or may not be in custody. If the suspect is not in custody a complaint is filed and an order is issued for the arrest of the suspect. If the suspect is in custody the formal complaint must be made against the arrested party within a reasonable time.

The procedures by which complaints are filed vary from county to county within the state. They may even vary between the county and a city in that county. One of the main ways in which the procedure varies is with the type of offense.

In traffic violations, for example, the individual usually is not detained physically. Instead a citation or “ticket” is written. But the citation will probably be processed as a complaint in the office of the appropriate clerk.

Misdemeanors may be filed before a city magistrate, a justice of the peace or in the office of the county or district attorney. In most counties, the county attorney prosecutes misdemeanors, the district attorney felonies. In urban counties the district attorney’s office handles all criminal matters.

Felony complaints are usually filed in justice of the peace courts, but they don’t have to be. They may be filled before city magistrates. Some counties use a procedure whereby felony complaints are accusatory affidavits sworn before the district attorney or assistant. Such a procedure constitutes filing.


Misdemeanors and felonies are classified according to the relative seriousness of the offense into three categories each.

An individual adjudged guilty of a misdemeanor is punished according to the law as follows:

Class A: A fine not to exceed $4,000 and/or confinement in jail for a term not to exceed one year.

Class B: A fine not to exceed $2,000 and/or confinement in jail not to exceed 180 days.

Class C: A fine not to exceed $500.

An individual adjudged guilty of a felony is punished according to the law as follows:

First Degree: Confinement in prison for life or for any term of not more than 99 years or less than five.

Second Degree: Confinement in prison not more than 20 years or less than two; in addition, a fine not to exceed $10,000 may be assessed.

Third Degree: Confinement in prison not more than 10 years or less than two; in addition, a fine not to exceed $ 5,000 may be assessed.

State Jail Felony: Confinement in a state jail not more than two years or less than 180 days; in addition, a fine not to exceed $10,000 may be assessed.

A capital felony is any crime for which any individual can be put to death.

Some offenses, not included in the revision of the Penal code in 1973, do not readily fall into class or degree categories, although they are designated felonies or misdemeanors. These are primarily regulatory and auxiliary, such as laws related to professions, trade and wild life. Many traffic and liquor-related laws are this way.

Misdemeanor Charges – Complaints and Informations

The complaint filed in criminal cases proceeds differently according to whether the offense is classified as a felony or as a misdemeanor. Felony cases go to the grand jury, misdemeanors do not.

Procedures for handling misdemeanor complaints vary according to the severity of the offenses and from county to county.

For example, in Class C cases the complaint may be the only document filed and a trial may be held based only on the complaint. But in Class A and Class B and equivalent regulatory cases, complaints may be followed by “an information.”

In some counties the complaint is filed with a justice court and a suspect is jailed or released on bond while the report on the arrest is sent to the district attorney’s office. There “an information” is prepared, based upon the complaint, and the case is refiled in county court.

In some counties the complaint is filed directly with the district attorney’s office, where the “information” is prepared.

Preliminary Hearing

A preliminary hearing or a probable cause hearing may be held in a felony case. The hearing is held on the request of the defendant. At the hearing the state must show that it has probable cause to proceed with the prosecution. The defendant may also ask that bond be set or reduced.

This hearing will probably be before the justice of the peace. At the conclusion of the hearing the justice of the peace will either order the defendant set free (which is rarely done) or have the case bound over for the grand jury.

The defendant is not under any obligation to present testimony in his or her behalf or to try to prove his or her innocence. Reporters should make clear the purpose of the hearing in their reports.

At the conclusion of the hearing the defendant may be bound over to the grand jury.


The felony case cannot go to trial without an indictment handed down by a grand jury. If the defendant has not requested a preliminary hearing, the original complaint goes directly to the grand jury.

A waiver of an indictment may be made when the defendant wants to plead guilty before the grand jury hears the case.

The Grand Jury

The presiding district judge appoints three to five grand jury commissioners. They name 20 people for possible grand jury service. The judge selects 12 persons to serve and designates a foreman. Nine must be present before action can be taken.

During the term it serves, the grand jury meets as often as necessary to dispense with felony complaints filed. In larger counties, more than one grand jury may be convened at the same time.

The grand jury has the assistance of the district attorney’s office. But the foreman is the spokesman for the jury. The foreman may reveal names of persons called before the grand jury and general information regarding the procedure. Or he or she may not, if they and the jury decide not to.

The grand jury may return a true bill, which is an indictment, or a no bill. A no bill does not necessarily exonerate a person who has been charged with an offense. The case could be brought up later. For that reason, no bills are rare. Also, the grand jury may reduce a felony to a misdemeanor.

All testimony to and deliberations before state grand juries are by law secret.

Witnesses may talk to reporters before they go before the grand jury. But they are sworn to secrecy once they appear before the grand jury. The defendant appears only if he or she consents and agrees that anything he says may be used against him or her.

News reporters can attempt to interview grand jurors, but a change in the law in 1995 forbids grand jurors from revealing what goes on before the grand jury. Before that law, grand jurors could talk to reporters.

A test of the law came in 1996 when Jennifer Lenhart, a reporter for the Houston Chronicle, reported on actions involving a Harris County grand jury. The district attorney brought Lenhart to court to compel her to reveal which jurors had talked with her. When she refused, she was held in contempt. A federal judge overturned the contempt ruling.

A state district court judge found a member of the grand jury in contempt when the grand juror refused to sign an affidavit saying she had not talked with Lenhart.

Trial Juries

The names of prospective jurors in all state and municipal courts are taken from driver’s license and voter registration rolls.

District courts have 12 jurors, other courts have six. Texas has no provision for alternates. However, a trial may continue even though one member of the jury may be released or die. Juries must arrive at decisions unanimously.

The jury hears the testimony, the charge and the arguments, then decides on guilt or innocence. Trials are bifurcated when the defendant is found guilty. That is, punishment is assessed after a hearing. The judge assesses unless the defendant has indicated at the start of the trial that he or she wants the jury to continue through the punishment phase.

Jurors may separate when the court is not in session at the discretion of the judge. However, the jury cannot separate after the charge is read until a verdict is returned or the jury is otherwise released.

Application for probation must be made before the start of the trial.

The state must file notice at least 15 days before the trial if it plans to seek the death penalty.

The Judge

The judge decides on the admissibility of the evidence. In a jury trial the jury decides on the credibility of witnesses and evidence. The judge is responsible for the conduct of the trial and has great latitude in the enforcement of his authority.

Arraignment and Pleas

Arraignment consists of the reading of the information or indictment against the defendant and his response to the accusation in court. The defendant may plead guilty, not guilty or nolo contendere, which indicates no contest.

No felony plea can be accepted without the representation of an attorney. A defendant who cannot afford an attorney must sign a pauper’s oath and the court appoints one for him or her. The county pays the cost of such representation, including the appeal.

If the defendant plans to plead guilty, that fact is usually made known to all parties involved to avoid the need of impaneling a jury and of having witnesses appear in court. When a guilty plea is entered, circumstances surrounding the crime are read into the record by the prosecution and stipulated to by the attorney for the defendant.

Texas does not have public defenders, although efforts to set up a public defender system come up in the legislature from time to time. Judges appoint lawyers to represent indigent defendants on a case by case basis. The federal system has public defenders.

Court of Inquiry

A court of inquiry may be called by the judge of any district court when he or she “has good cause to believe that an offense has been committed against the laws of this state.”

Subpoenas may be issued and persons may be ordered to testify within the bounds set by the Fifth Amendment of the U. S. Constitution, which provides protection against self-incrimination.

Courts of inquiry are rare.