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Examining Trials in Texas

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Innocent people can be arrested. Wrongful arrests happen, too, where police officers, sheriff’s deputies, or federal agents arrest people with insufficient “probable cause” to do so, in violation of the individual’s federal and state constitutional rights.  For details, read “What is Probable Cause For Police to Arrest in Texas?

When these are felony arrests made under Texas state law, and the accused has the foresight to hire an experienced criminal defense attorney as soon as possible, then these arrest errors can be challenged quickly.  It can mean that the accused is freed as the judge dismisses the entire case.  It may also mean that evidence is suppressed, which will weaken the charges and boost the possibilities of a plea bargain.

How this happens is through the defense lawyer’s filing of a motion for an “examining trial.”  It is not a secret strategy, of course:  legally, the accused must be informed of the right to an Examining Trial by the judge at the Arraignment.


What is an Examining Trial?

The Texas Legislature has provided for the accused to have a formal defense proceeding called an “examining trial” early in the criminal case pursuant to Texas Code of Criminal Procedure (TCCP) art. 16.01 et seq.  It is not a full-scale trial, despite its name.  An examining trial is a hearing in open court where evidence can be introduced, but there is no jury and there is no adjudication of guilt at this stage.  The focus of an examining trial is exclusively upon whether or not there was “probable cause” for the arrest to have been made.

Purpose of an Examining Trial

Defined in TCCP art. 16.01, the statutory purpose of the examining trial is “…to examine into the truth of the accusation made.”

Examining trials are only available to those who have been charged with felony crimes. Misdemeanor cases do not get examining trials.  For more on felonies under Texas law, read our discussions in:

Grand Jury Indictments and Examining Trials

The Legislature provided for examining trials in order to make sure that someone who has had their freedom taken away in an arrest has not been the victim of an unlawful detention by those exerting police powers in the State of Texas.  However, not every defendant will be able to get an examining trial before a magistrate in order to “examine into the truth of the accusation made.”

If a grand jury is involved, then things can change under Texas law.  A grand jury indictment blocks any examining trial from taking place.  The rationale here is a grand jury’s deliberations that end up with the issuing of an indictment means the grand jury has confirmed there is probable cause to arrest and charge the accused with a felony crime. TCCP art. 16.01.  The grand jury’s deliberations take the place of the examining trial hearing before the magistrate.

Criminal Defense Lawyers at Examining Trials

Defense lawyers are critical in an examining trial.  If the accused has hired a lawyer, then one of the first actions of the defense attorney may well be to file a written motion with the clerk’s office, asking for this examining trial as an evidentiary hearing before the magistrate, to make sure there is constitutionally-valid probable cause that the accused committed the crime(s) for which he (or she) has been arrested.

If the accused does not have a defense lawyer at the time of he (or she) is arrested, then the magistrate must allow “sufficient time” for counsel to be obtained.  In some instances, the magistrate may appoint legal counsel for the accused, solely for the purpose of representation during an examining trial.  TCCP art. 16.01.

Prosecutors at the Examining Trial

Each county in Texas has a district attorney’s office where attorneys prosecute felony criminal matters on behalf of the State of Texas.  Felony arrests in Dallas usually will be assigned to the Dallas County District Attorney’s Office, for example.

However, it can get complicated here in North Texas, since so many counties span the “Dallas Fort Worth Metroplex.” For instance, felony arrests in the City of Dallas may also be prosecuted by the district attorneys’ offices for Collin County, Denton County, Kaufman County, or Rockwall County since Dallas overlaps five different county jurisdictions.

In neighboring Fort Worth, felony cases may be assigned to the Tarrant County District Attorney’s Office; the Parker District Attorney’s Office; the Wise County District Attorney’s Office; or the Denton County District Attorney’s Office.  Felony arrests in Plano will be prosecuted by either the Collin County District Attorney’s Office or the Denton County District Attorney’s Office.

It is the duty of the defense lawyer to notify the proper prosecutor who is to appear at the examining trial as to its time and place. There is no law that requires the prosecutor to participate in the examining trial, however.  If no prosecutor shows up to represent the government at the examining trial, the magistrate may examine the witnesses. TCCP art. 16.06.

Can You Choose The Magistrate for an Examining Trial?

Over time, the number of judicial officials who may act as a “magistrate” in Texas has expanded.  With the latest amendment to TCCP art. 2.09, as of 2019 in Texas, “magistrates” are defined as:

  1. the justices of the Supreme Court;
  2. the judges of the Court of Criminal Appeals;
  3. the justices of the Courts of Appeals;
  4. the judges of the District Court;
  5. the magistrates appointed by the judges of the district courts of Bexar County, Dallas County, or Tarrant County that give preference to criminal cases;
  6. the criminal law hearing officers for Harris County appointed under Subchapter L, Chapter 54, Government Code;
  7. the criminal law hearing officers for Cameron County appointed under Subchapter BB, Chapter 54, Government Code;
  8. the magistrates or associate judges appointed by the judges of the district courts of Lubbock County, Nolan County, or Webb County;
  9. the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County;
  10. the associate judges appointed by the judges of the district courts and the county courts at law that give preference to criminal cases in Jefferson County;
  11. the associate judges appointed by the judges of the district courts and the statutory county courts of Brazos County, Nueces County, or Williamson County;
  12. the magistrates appointed by the judges of the district courts and statutory county courts that give preference to criminal cases in Travis County;
  13. the criminal magistrates appointed by the Brazoria County Commissioners Court;
  14. the criminal magistrates appointed by the Burnet County Commissioners Court;
  15. the magistrates appointed by the El Paso Council of Judges;
  16. the county judges;
  17. the judges of the county courts at law;
  18. judges of the county criminal courts;
  19. the judges of statutory probate courts;
  20. the associate judges appointed by the judges of the statutory probate courts under Chapter 54A, Government Code;
  21. the associate judges appointed by the judge of a district court under Chapter 54A, Government Code;
  22. the magistrates appointed under Subchapter JJ, Chapter 54, Government Code;
  23. the magistrates appointed by the Collin County Commissioners Court;
  24. the magistrates appointed by the Fort Bend County Commissioners Court;
  25. the justices of the peace; and
  26. the mayors and recorders and the judges of the municipal courts of incorporated cities or towns.

While TCCP art. 16.01 states that examining trials are to be held before “a magistrate,” this does not mean that either the prosecution or defense attorney can choose who will preside over a particular matter.  It is not an invitation for “forum shopping” despite the long, long list of judicial officials who meet the definition of “magistrate” in Texas.

As a general rule, even though the statute does not require a specific magistrate for a specific jurisdiction or case, the magistrate where the prosecution resulting from the felony arrest is pending will preside over the examining trial.  If the accused is facing a capital offense, then the examining trial is to be conducted by a justice of the peace, county judge, county court at law, or county criminal court acting as magistrate. TCCP art. 16.15.

Accused’s Right to Make a Statement at Examining Trial

Pursuant to TCCP arts. 16.03-16.04, the accused has a right to make a statement to the court which will be placed into evidence.  The accused can choose not to exercise that right.  It is entirely voluntary whether or not the accused makes a statement.

However, the Statement of the Accused is a statutory right that the magistrate must by law explain to the accused before any witness is examined at the Examining Trial.  If the accused decides to make a statement, the prosecution can use it against him.  The magistrate also has to explain this possibility to the accused before a decision is made.

If an accused makes a statement, then it must be put in writing and signed by the accused with the magistrate officially certifying to its veracity.  It becomes evidence in the case.

Whether or not the accused should exercise his right to give a statement at an examining trial is a decision that should be made with the input of his or her criminal defense lawyer.  As for giving a statement to police during an investigation, for my stance on this issue please watch my video and read its accompanying discussion in Don’t Ever Talk To The Police! Never Give A Statement To Law Enforcement In Texas Criminal Investigation:


Procedure at the Examining Trial

While the examining trial is not a full criminal trial, it is an evidentiary hearing where the Texas Rules of Evidence must be followed.  No witness can be examined without the accused being present for their testimony, for instance.  See TCCP arts. 16.06 – 16.09.

Both the prosecutor and the defense lawyer, as well as the accused, can question witnesses in an examining trial.  So can the magistrate if the prosecutor fails to appear.

The testamentary evidence from the examining trial can be preserved in two ways.  Either each witness’ testimony is written down into a formal statement that the witness reviews, approves, and signs with the magistrate’s certification, or a Statement of Facts approved by the prosecutor and the defense lawyer, as well as the magistrate, is compiled.

Decision by the Magistrate

After the examining trial is completed, the magistrate will issue his or her ruling.  This is an official court order.  It will do one of the following pursuant to TCCP art. 16.17:

  1. committing the defendant to the jail of the proper county;
  2. discharging him; or
  3. admitting him to bail.

There is a deadline imposed upon the magistrate.  Under the statute, the judge must make or enter an order within 48 hours after the examining trial has been completed.  If the deadline is not met, then legally this failure “operates as a finding of no probable cause and the accused shall be discharged.” TCCP art. 16.17.

Why the deadline?  The “forty-eight hour rule” makes sure the magistrate does not sit on making a decision in order to give the prosecution time to get an indictment, so his or her examining trial decision becomes moot.  Flynn v. State, 667 S.W.2d 235, 239 (Tex. App.-El Paso 1984), aff’d, 707 S.W.2d 87 (Tex. Crim. App. 1986).

Reasons to Hire Texas Criminal Defense Lawyer ASAP After Felony Arrest

Examining trials may seem to be of little importance to many defendants.  After all, you’ve been arrested and challenging “probable cause” for the arrest?  Why bother, especially if there may be a grand jury looking at your case or you think they have gathered lots of evidence against you?

This is the wrong attitude.  Examining trials are extremely important in criminal defense matters.  It is not just a matter of trying to get the case dismissed.

1.  Early Opportunity to Cross-Examine Witnesses and Possibility of Admissions

For one thing, at the examining trial the experienced criminal defense attorney knows there is an early opportunity to cross-examine the state’s probable cause witnesses, and get their testimony in the record. It’s a great chance to question an unprepared witness and get them to make admissions that are damaging to the prosecutor’s case.  These admissions can be vital if there is a later Grand Jury proceedings or a full-blown criminal trial.

2.  Force Prosecutor to Act

Another strategic importance for examining trials is how this can force the prosecutor to act.  He or she will be forced to move forward and indict or to dismiss the case.

3.  Early Access and Discovery of Prosecutor’s Case File

Dismissing the case is a great victory, of course.  But if the indictment is forced because of the defense setting an examining trial, then it allows the defense lawyer to get access as soon as possible to the prosecutor’s file.   This discovery of the state’s case against the accused must be shared with the defense lawyer, but not until there is an official indictment.  In serious felony matters, having this access as soon as possible is vital to building the proper defense against the criminal charges.

It may also help in plea negotiations and reductions of the felony charges.  See, e.g.,Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.

Examining Trial: Criminal Defense Importance

In sum, it is extremely important to hire a defense lawyer as soon as you can, even when you merely suspect that you are being investigated for felony arrest by law enforcement.  Among other things, having your defense lawyer advocating for you early on means that you can request an examining trial and conduct a probable cause hearing prior to the grand jury becoming involved. Even if there is an indictment, the examining trial maximizes the access that you and your defense lawyer have to the prosecution’s evidence against you.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles, ”Pre-Arrest Criminal Investigations” and “The Early Part of a Texas Criminal Case in State or Federal Court.”

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