FAQ Texas Criminal Justice Process

It is against the law in Texas to drive a car, motorcycle, boat, or any other motor vehicle while intoxicated. DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) are serious criminal offenses related to driving a motor vehicle while under the influence of either alcohol or drugs.

If you are driving erratically or violating traffic laws, the police may stop you and, if they believe you are intoxicated, ask you to submit to a field sobriety test. They may measure your blood alcohol content by asking you to submit to a breathalyzer test, or by asking for a blood or urine sample. In the state of Texas, a person is legally intoxicated and may be arrested and charged with DUI/DWI with a blood alcohol content of 0.08% or higher.

1. How Are Criminal Offenses Classified in Texas?


  • Capital- Punishable by death or life in prison.
  • Example: Capital Murder
  • First Degree- 5 to 99 years or life in prison; possible fine up to $10,000.
  • Example: Murder; Aggravated Sexual Assault
  • Second Degree- 2 to 20 years in prison; possible fine up to $10,000.
  • Example: Manslaughter; Indecency With a Child
  • Third Degree- 2 to 10 years in prison; possible fine up to $10,000.
  • Example: Intoxication Assault; Kidnapping
  • State Jail (Fourth Degree)- not more than 2 years or less than 180 days in state jail; possible fine up to $10,000.
  • Example: Criminally Negligent Homicide; Burglary of a Building


  • Class A- Punishable by up to 1 year in county jail and/or a fine up to $4,000
  • Example: Assault; Burglary of a Vehicle
  • Class B- Up to 180 days in county jail and/ or a fine up to $2,000
  • Example: DWI; Indecent Exposure
  • Class C- Fine only not to exceed $500
  • Example: Theft of Property less than $50; Disorderly Conduct

2. Under What Circumstances are An Arrest Made?

Usually, a peace officer must obtain an arrest warrant before arresting someone. However, he may conduct an arrest if there is probable cause to believe a person committed a crime or if an offense is conducted in the presence of the officer.
A magistrate may issue an arrest warrant using an affidavit made under oath establishing probable cause that the accused has committed a crime. This warrant allows a peace officer to detain the accused.

3. What Are the Rights of the Person Arrested?

Once an arrest is made, the accused is taken before a magistrate and informed of:

  1. The accusation and any affidavit filed in relation to it.
  2. The right to retain counsel.
  3. The right to remain silent.
  4. The right to have an attorney present during any interviews with state personnel.
  5. The right to terminate an interview at any time.
  6. The right to request the appointment of counsel if the person cannot afford it.
  7. The right to have an examining trial
  8. That the person arrested is not required to make a statement and if one is made, it may be used against him.

The magistrate is required to allow reasonable time for the arrested to consult with his attorney and be bailed out of jail if allowed by law.
A ticket may be issued for a Class C misdemeanor in lieu of a hearing before the magistrate.
Additional rights of an accused person include:

  • Presumption of innocence until proven guilty beyond a reasonable doubt.
  • Right against self-incrimination.
  • Right to not be prosecuted for a felony until indicted by a grand jury.
  • Right to a copy of the accusation and to a speedy trial by an impartial jury
  • Right to confront witnesses

4. How is a Criminal Prosecution Initiated?

A criminal case is prosecuted in the name of the State of Texas against the defendant by a prosecutor acting under state authority.

Class C misdemeanors prosecutions begin with the filing of a complaint, a written affidavit made by a credible person charging the defendant with an offense. These are under the jurisdiction of the municipal or a justice of the peace courts.

Class A and B misdemeanors are in the County Courts at Law. Information, or written statement presented by the State, charges the defendant with committing a crime. A complaint must be filed with the information.

Felonies are prosecuted in district courts and an indictment is required (unless waived by the defendant). The indictment is the written statement of a grand jury presented to the court accusing the defendant of the crime.

5. What are the Procedures Before Trial?

Prior to trial, the court may set a case for a pre-trial hearing to determine legal issues such as:

  1. The arraignment of the defendant, if necessary
  2. Appointment of counsel for the defendant, if necessary
  3. Motions for change of venue
  4. Motions for continuance
  5. Defense motions to discover the state’s evidence
  6. Defense motions to suppress evidence

6. How Are Criminal Cases Resolved?

Plea Bargaining

Plea bargaining is the disposition of criminal charges through an agreement between the prosecutor and the defendant. In exchange for a guilty or no contest plea and waiver of the right to trial by jury, the prosecutor recommends a punishment that the judge presiding can accept or reject. Most criminal cases are resolved by plea bargaining.

Non-negotiated Guilty Plea (Open Plea)

A defendant may enter a guilty or no contest plea without an agreement from the prosecutor with respect to punishment. The judge then has the responsibility to determine the punishment applicable unless the defendant requests a jury to assess the punishment. The defendant retains his right to appeal.


Any person accused of a crime is guaranteed the right to trial by jury by the Texas Constitution. This right may be waived in favor of a trial to the court (judge) except in capital felony cases where the state notifies the court and defendant that it will seek the death penalty.


Prosecutors may, with the judge’s consent, dismiss a criminal case for any of the following reasons:

  1. Insufficient evidence.
  2. Crucial evidence is suppressed because of an illegal arrest or search.
  3. The case is re-filed to correct mistakes in the information or indictment.
  4. At the request of the victim.
  5. The defendant pleads guilty to other offenses.
  6. The defendant has never been arrested.
  7. Necessary witnesses cannot be located.