(512) 565-8844 lance@lancekennedy.com


General Law

<< Back to Blog

This guide is an introduction to the typical Central Texas pretrial process. Contact a criminal defense attorney if you have questions about the pretrial process in Central Texas counties such as Comal, Hays, Guadalupe, Travis, or Bexar.


Once the State files criminal charges, the first court appearance, known as an arraignment, usually occurs within 72 hours of arrest. Historically, the court asked the defendant to plead guilty or not guilty. However, the common practice is for the judge conducting the arraignment to formally notify the individual accused of the pending charges and to set bail.


When a defendant is arrested for a crime and booked into jail, they will typically go before a judge within 24 hours, who will decide the terms and conditions of the defendant’s bail. Under certain circumstances, such as if a defendant is a danger to society or at risk of non-appearance at court proceedings, a court will deny bail. The defendant will remain in custody until the judge reconsiders bail or the parties resolve the case.

In the overwhelming majority of cases, the judge will set bail. The Eighth Amendment of the United States Constitution states that the amount of bail cannot be excessive. The State cannot use bail to raise money or punish a person who allegedly committed a crime. Most Central Texas counties have a set bail schedule that delineates the amount of bail based on the type of the alleged offense.

Types of Bail Bonds

Generally, Central Texas courts use three types of bail bonds: 1) personal recognizance, 2) cash, or 3) surety. 

In a personal recognizance bond, a defendant charged with a crime is released “on his recognizance.” The defendant agrees to all terms of release and is free to go without collateral offered. Suppose the defendant violates any of the terms of release. In that case, the defendant will be taken into custody and subject to being held without bail or forced to post another type of bond.

Cash bonds require the bail amount to be held in trust by the county sheriff or the court to ensure compliance with future proceedings. If there is non-compliance, the person posting the cash bond is subject to forfeiture of the money left in trust. Bondsmen return cash bonds once the defendant fulfills the obligations and the court issues a judgment. 

A professional bail bondsman facilitates surety bonds by posting an individual’s bail for a fee in exchange for guaranteeing the defendant will appear in court. The bail bondsman’s fees are not refundable.

Pretrial Hearings

The court may set a criminal case for a pretrial hearing before trial. Courts use pretrial hearings to determine legal issues. The judge decides pretrial matters, and the defense and prosecution present evidence and witness testimony in most situations. At pretrial hearings, judges can hear evidence presented to determine what is admissible at trial. 

For example, whether police legally arrested a suspect and gathered evidence in compliance with the Texas and United States Constitutions. If the police unlawfully detained a defendant or a search and seizure were illegal, grounds exist for suppression. Suppressing evidence means the prosecution may not be able to introduce the improperly obtained evidence at trial. 

Suppressing Evidence

Where the court suppresses essential evidence, the State must dismiss the case. For example, suppose police unlawfully search a suspect’s home without a warrant or the suspect’s consent. In that case, the evidence recovered cannot be used to prosecute the suspect. Judges make such a determination at pretrial hearings. The burden of proof is on the prosecution. 

Suppose the State does not meet the burden that serves as grounds for suppression. Once satisfied, however, the accused must demonstrate the State violated their rights to be entitled to have the evidence suppressed.

Another evidentiary issue determined by the court at pretrial hearings involves statements made by a suspect. An accused must “knowingly, intelligently, and voluntarily” waive their right to remain silent before police can lawfully take a statement. Before taking a statement from a person in custody, police must inform the suspect of their Miranda rights. The judge might suppress the statement at a pretrial hearing if the police did not take the statement correctly.

Additionally, suppose someone identified the defendant using a line-up or photo array. In that case, the State must show that the police did not conduct either procedure improperly. Suppose the prosecution cannot meet this burden of proof. In that case, the court will not permit evidence of the identification and the identification procedure to be introduced at trial.

Pretrial Case Resolution

After the indictment, there are two ways the parties may resolve a criminal case before trial: 1) dismissal; or 2) plea-bargaining. The most favorable form of pretrial disposition of a criminal case is dismissal. With the judge’s consent, the prosecutor may dismiss a criminal case. Common reasons for dismissal include:

  1. Insufficient evidence – for example, a fatal lack of evidence such that the court would instruct a verdict in favor of the defendant.
  2.  Crucial evidence is suppressed because of an illegal arrest or search.
  3.  At the request of the victim.
  4.  The defendant pleads guilty to other offenses, often less serious offenses.
  5.  Necessary witnesses cannot be located.

Plea Bargains

Plea bargaining is the disposition of criminal charges by agreement between the prosecutor and the defendant under judicial supervision. In exchange for the defendant pleading guilty or no contest and waiving the right of trial by jury, the prosecutor recommends a specific punishment that the judge can accept or reject. If the judge rejects the agreement, the defendant can withdraw their guilty plea. If the judge follows the agreement, the defendant must obtain the judge’s permission before the defendant may appeal any matter in the case except issues raised by written motions filed before trial.

The defendant usually waives the right of appeal as part of the plea bargain. A non-negotiated guilty or open plea is a less commonly used form of plea-bargaining. In an open plea, a defendant pleads guilty to a criminal charge without an agreement with the prosecutor regarding what punishment the prosecutor will recommend. Here, the judge will assess the sentence unless the defendant specifically requests that a jury do so. The defendant retains the right to appeal the sentence but typically waives any appeal of matters occurring before the entry of the guilty plea.

Trial or Plea?

Why should a defendant enter into a plea bargain? An excellent criminal defense attorney invariably asks two fundamental questions after thoroughly reviewing a case: 1) Can I help my client beat these charges? and 2) If I cannot help my client beat these charges, how can I help them get the best result possible? 

While trials can be exciting, helping clients get the best results possible when the defense cannot win a trial is essential. This type of situation is where plea bargaining often comes into play. Because attorneys cannot win every trial, a criminal defense attorney must also be a good negotiator. Under Texas law, many criminal charges present possible punishment ranging from probation to ninety-nine years or life in prison. When faced with broad possible punishment ranges and criminal charges that may likely result in a conviction, a good negotiator may mean the difference between probation and a lengthy prison sentence. 

Contact me for a free case review if you are charged with a crime in Comal County, or other Central Texas counties such as Hays County, Guadalupe County, Travis County, or Bexar County.