How does the prosecutor charge a crime in Texas?

Complaint, Information, and Indictment

The State of Texas uses three different forms of documents to charge criminal offenses. The form of document depends on the nature and level of the crime a person commits. In general, the more severe the crime, the more complicated and detailed the statement required to “charge,” or accuse a person of a crime. The three types of charging documents used in Texas are a Complaint, an Information, and an Indictment. An Information and an Indictment inherently include the contents of a Complaint as part of the basis for making an accusation against a defendant.

Texas Criminal Complaints

A Complaint is a written sworn statement made by a credible official and witnessed by a magistrate or prosecutor. The complaint must contain an accusation or allegation that a crime has been committed. Misdemeanors are the only cases that may be tried based solely on a complaint, and these cases are limited to cases: in counties with no county attorney or criminal district courts; cases tried in municipal courts; and cases appealed from a municipal court to a county court. A common example of a prosecution based solely on a complaint is a speeding ticket: it is issued by a city peace officer; it is a “sworn statement made by a credible official; and it is witnessed by a magistrate.

The obscure provision relating to the requirement of an Information for misdemeanors in counties with criminal district courts should not be relied upon in the Class C context. See the holding and discussion in Stevens v. State, 03-14-00536-CR (Tex. App.—Austin Feb. 18, 2016, pet. filed).

Strangely, Texas law does not require a Complaint be based on probable cause, a reasonable ground for suspicion, and can be based on personal knowledge, information, or belief. See Texas Code of Criminal Procedure 15.05(2). However, because complaints are the basis for an arrest or search, the United States Constitution requires that a warrant state facts indicating that probable cause exists. This requirement makes probable cause essential for most misdemeanor cases, and excludes only the lowest offenses that cannot be punished by arrest. Furthermore, probable cause is required because complaints serve as the basis for both an information and an indictment. So although a strict reading of Texas law does not require probable cause to support a criminal complaint, practically a Complaint should. Do not mix up the requirements for a complaint connected to an arrest warrant with requirements for a Complaint serving only as a charging instrument.

What is an Information in a Misdemeanor case?

An Information is a written statement based on a Complaint that is usually filed at the same time. It is presented on behalf of the State by the prosecuting attorney and charges the defendant with the crime for which he is being prosecuted. All misdemeanors with a potential penalty of time in jail are required to have an Information to supplement the Complaint. Therefore, in Texas all Class A and B misdemeanors require that the district or county attorney attest to the information in the complaint and verify it as the truth before proceeding with prosecution.

In certain instances, an Information is sufficient to prosecute a defendant that has committed a felony. This can only occur if the defendant waives their right to Indictment by a Grand Jury. In a capital case however, the defendant cannot waive the right to an Indictment. The requirements regarding the allegations in an Indictment and an Information are the same and are discussed in the following section regarding Indictments.

What is an Indictment?

The most significant difference between an Indictment and an Information is that an Indictment is handed down by a Grand Jury. Therefore, an Indictment is the written statement of a Grand Jury, signed by the foreman, that accuses a person of a felony criminal offense.

An Indictment must include an allegation of the location where the offense was committed. Generally an allegation of time only requires the county where the offense took place unless the specific location was an element of the offense committed, or real estate was involved. Further, the Indictment must indicate the time of the alleged offense. The time given for the occurrence of the offense must be stated as some time previous to the issuance of the Indictment and it cannot be barred by a statute of limitations. An allegation of time in an Indictment is generally phrased as having occurred “on or about” an exact date.

The Indictment must further identify the exact name of the person to be charged. It must include all the essential information that a defendant requires to be “on notice” as required by the due process clause of the Constitution. This generally includes a description of the charges as provided by statute and the type of culpable mental state alleged for the offense. The notice clause further requires that an indictment include any “enhancement” circumstances be specifically named if they are included in the offence. These enhancements may include: use of a deadly weapon; hate crime; crime occurring in a drug or weapon-free zone; or whether a controlled substance was present.

Essentially an Indictment must include all the necessary information to both put the defendant on notice of the charges and effectively communicate that a person has committed an offense. When combined with a complaint it is the way the State of Texas communicates its intent to prosecute criminal conduct.