Preliminary Hearing

Every felony case in Texas requires a preliminary hearing, most notably those dealing with federal charges. The purpose of such hearings is to test the sufficiency of the evidence involved to determine whether a case should continue. 

A preliminary hearing has to be held within 10 days of an alleged offender’s arraignment, but several alleged offenders allow the hearing to take place later. The process is very important, so any alleged offender should make sure to have a criminal defense attorney.

Preliminary Hearings Defense Lawyer in Denton, Frisco, Lewisville, Flower Mound, TX

If you are preparing for a preliminary hearing in Denton, or any of the surrounding areas in Texas, including Argyle, Aubrey, Carrollton, Flower Mound, Frisco, Justin, Krum, Lake Dallas, Lewisville, Little Elm, Pilot Point, Ponder, Roanoke, Sanger, or The Colony, contact the Law Offices of Richard C. McConathy. Our firm has a wealth of experience handling these kinds of cases.

Attorney Richard McConathy will work tirelessly to ensure you receive the most favorable possible outcome to your case. Call The Law Offices of Richard C. McConathy at (940) 222-8004 about your case.

Preliminary Hearing in Texas

The prosecution must show during the preliminary hearing that they have enough evidence to prove a crime was committed and that the alleged offender is most likely the one who committed the offense. If the prosecution cannot prove this, the case does not move to trial and the case can be dismissed.

The court hears arguments and sees evidence from both sides. The prosecution attempts to present evidence that is significant enough to have an alleged offender stand trial.

During this time, the prosecution can show physical evidence and call witnesses to the stand to testify. The defense will usually seek to convince the court that the prosecution has insufficient evidence and that the charges should be dropped, usually by presenting evidence of their own as well as cross-examining the prosecution’s witnesses.

Texas Administrative Code § 146.6 establishes that, upon request, the Board or the Board’s scheduling staff must schedule a preliminary hearing unless:

  • more than 14 calendar days passed from the time that a warrant was executed; or
  • information has not been presented to the Board or the Board’s scheduling staff that the alleged offender was served with:
    • notice of the right to a preliminary hearing and that its purpose is to determine whether there is probable cause or reasonable belief to believe the alleged offender has committed a parole violation;
    • written notice of the allegations of parole violation against the alleged offender;
    • notice of the right to full disclosure of the evidence;
    • notice that alleged offender has the opportunity to be heard in person and to present witnesses and documentary evidence;
    • notice that the alleged offender has the right to confront and cross-examine adverse witnesses unless a Hearing Officer finds good cause for not allowing confrontation of the witness;
    • notice that the case will be heard by a parole panel or designee of the Board;
    • notice that the alleged offender has the opportunity to waive in writing the right to either or both of the preliminary and revocation hearings, with the additional understanding that, if the alleged offender waives the revocation hearing, the Board will in all probability revoke; and
    • notice that the alleged offender has the right to retain an attorney and the conditional right to an appointed attorney.

A warrant is executed when:

  • the alleged offender is arrested only on a charge that the alleged offender has committed a violation of a condition of parole or mandatory supervision and is not charged before the 41st day with the commission of an offense; or
  • the sheriff having custody of the alleged offender notifies the division that the alleged offender has discharged the sentence or that the prosecutor has dismissed the charge under Texas Code of Criminal Procedure § 32.02.

When the Board or the Board’s scheduling staff receives a request for a preliminary hearing later than the 14th calendar day following the provisions described, the Board or the Board’s scheduling staff must require the requestor to provide an explanation of the delay.

Texas Administrative Code § 146.6(a)(1) does not apply when an alleged offender is:

  • transferred under Government Code § 508.284 to a correctional facility operated by or under contract with the department; or
  • returned to custody from another state, a federal correctional institution, or a medical or psychiatric facility.

In cases under Texas Administrative Code § 146.6(d), a preliminary hearing must be held within a reasonable time.

Preliminary Hearings main

Pretrial Motions in Texas

At a preliminary hearing, a judge will also determine what evidence will be admissible in court. If the trial does go to court, most of the evidence and witness testimony will have to be presented again. 

During the hearing, a defense attorney can severely weaken the prosecution’s case by filing pretrial motions that can lead to the suppressing of evidence or witness testimonies. If a pretrial motion is successful, it can make substantial pieces of evidence inadmissible in court and leave the prosecution’s case very depleted.

It is important to understand that an alleged offender’s guilt or innocence is not decided at a preliminary hearing. The purpose of the hearing is customarily to determine whether or not there is enough probable cause or evidence for the alleged offender to stand trial for the alleged offense.

Texas Code of Criminal Procedure § 28.01 states that the court can set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the alleged offender and his attorney if any, and the state’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing.  The alleged offender needs to be present at the arraignment, and their presence is required during any pre-trial proceeding.  

The pre-trial hearing must be to determine any of the following matters:

  • The arraignment of the alleged offender, if necessary;  and appointment of counsel to represent the alleged offender, if necessary
  • Pleadings of the alleged offender
  • Special pleas, if any
  • Exceptions to the form or substance of the indictment or information
  • Motions for continuance either by the state or alleged offender; provided that grounds for continuance not existing or not known at the time may be presented and considered at any time before the alleged offender announces ready for trial
  • Motions to suppress evidence–When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, upon opposing affidavits, or upon oral testimony, subject to the discretion of the court
  • Motions for change of venue by the State or the alleged offender;  provided, however, that such motions for change of venue, if overruled at the pre-trial hearing, may be renewed by the State or the alleged offender during the voir dire examination of the jury
  • Discovery
  • Entrapment
  • Motion for appointment of an interpreter

When a criminal case is set for a pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown, provided that the alleged offender has sufficient notice of such hearing to allow them not less than 10 days in which to raise or file such preliminary matters.  The record made at such a pre-trial hearing, the rulings of the court, and the exceptions and objections thereto must become a part of the trial record of the case upon its merits.

The notice must be sufficient if given in any of the following ways:

  • By announcement made by the court in open court in the presence of the alleged offender or his attorney of record;
  • By personal service upon the alleged offender or his attorney of record;
  • By mail to either the alleged offender or his attorney of record deposited by the clerk in the mail at least six days prior to the date set for hearing.  If the alleged offender has no attorney of record such notice shall be addressed to the alleged offender at the address shown on his bond, if the bond shows such an address, and if not, it may be addressed to one of the sureties on his bond.  If the envelope containing the notice is properly addressed, stamped, and mailed, the state will not be required to show that it was received.

Denton County Resources for Preliminary Hearings

Rule 5.1. Constitutional Challenge to a Statute – Legal Information Institute — This page discusses Rule 5.1 of the Federal Rules of Criminal Procedure. When an alleged offender is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless the alleged offender waives the hearing; the alleged offender is indicted; the government files information under Rule 7(b) charging the alleged offender with a felony; the government files an information charging the alleged offender with a misdemeanor, or the alleged offender is charged with a misdemeanor and consents to trial before a magistrate judge. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 14 days after the initial appearance if the alleged offender is in custody and no later than 21 days if not in custody.

Preliminary Hearing | USAO | Department of Justice — View this article from the Offices of the United States Attorneys. Preliminary hearings must be held within 14 days of the initial appearance if the alleged offender is being held in jail. If an alleged offender is out on bail, it must be scheduled within 21 days of the initial appearance.

Find A Denton County Defense Attorney for Preliminary Hearings | The Law Offices of Richard C. McConathy

Contact the Law Offices of Richard C. McConathy for a consultation about a preliminary hearing in Denton County in Texas. Richard McConathy is an experienced criminal defense lawyer who can make every effort to find applicable defenses in your case and possibly have your charges reduced or even dismissed.

Contact the Law Offices of Richard C. McConathy right now at (940) 222-8004 or contact us online to take advantage of a free consultation. We help clients in Denton, Frisco, Lewisville, Flower Mound, and surrounding areas of Denton County, Texas.