In Texas, a “preliminary hearing” isn’t what most people think—and using the wrong approach can cost you leverage early.
The actual procedure is called an examining trial, and when used correctly, it can expose weaknesses in the State’s case before it gains momentum. Used at the wrong time—or ignored altogether—it becomes a missed opportunity that’s hard to recover.
.Timing matters in these decisions.
At the Law Offices of Richard C. McConathy, we evaluate when an examining trial gives our clients an advantage and when it doesn’t. It’s a strategic part of the Texas Criminal Process, where early moves can shape how the entire case unfolds.
This guide explains what an examining trial is, when it applies, and how it can impact your defense.
What Is an Examining Trial in Texas?
An examining trial is a hearing in which a magistrate, usually a justice of the peace or county judge, reviews evidence to decide whether probable cause exists to believe that the accused committed the charged offense. The procedure is governed by Texas Code of Criminal Procedure Chapter 16, and the right to an examining trial is recognized in Article 16.01.
At the examining trial:
- The state presents evidence that supports the charge.
- The defense may cross-examine the state’s witnesses.
- The defense may, but is not required to, present its own evidence.
- The magistrate decides whether probable cause supports holding the accused for further proceedings.
Possible outcomes include the magistrate finding probable cause, releasing the accused, lowering the bail, or, in some cases, dismissing the matter for lack of probable cause.
How Texas Examining Trials Differ From Federal Preliminary Hearings
Federal cases use a “preliminary hearing” under Rule 5.1 of the Federal Rules of Criminal Procedure. The two procedures share a similar purpose, but Texas examining trials have important differences:
- Court level: Examining trials are usually held before a magistrate, not the trial court that will eventually hear the felony.
- Indictment cutoff: The right to an examining trial in Texas ends once the grand jury returns an indictment. Federal preliminary hearings are also affected by indictment, but the procedural timeline differs.
- Scope of testimony: Texas examining trials may be more flexible, allowing the defense to question state witnesses early.
- Rules of evidence: Hearsay and other relaxed standards may apply at examining trials, similar to federal preliminary hearings.
If you have a federal case and are searching for “Texas preliminary hearing,” the rules and timing in your case may be different. Our attorneys handle both state and federal matters and can advise on which rules apply.
When Is an Examining Trial Available?
Examining trials are available in felony cases before indictment. Practically, that creates a narrow window:
- After arrest and bond is set, the defense may request an examining trial as part of the early stages of the Texas Criminal Process.
- The magistrate sets the hearing, often within a short time of the request.
- If the grand jury returns an indictment before the hearing occurs, the right is generally lost.
In counties with active grand juries, this window can be a matter of days or a couple of weeks. Speed of decision matters, and that decision should be informed by a careful look at the case.
Strategic Reasons to Request an Examining Trial
A skilled defense lawyer treats examining trials as a strategic option, not a default step—just like decisions involving alternatives such as pretrial diversion. Reasons to request one include:
- Lock down witness testimony early: The state’s witnesses testify under oath. Their statements can be used to impeach later trial testimony if it changes.
- Test the strength of the case: A weak hearing may support a motion for reduced bond or open discussions about reducing or dismissing charges.
- Develop a record for bond reduction: Even if the case is held over, the testimony may help the trial court reconsider bond conditions.
- Identify weaknesses in identification, search and seizure, or chain of custody: Issues that may later support suppression motions.
- Pressure the prosecution’s timeline: A pending examining trial sometimes accelerates plea offers and case evaluation.
Reasons to waive or skip an examining trial include:
- The state may indict quickly and the hearing would not occur in time.
- A weak defense witness pool could create unhelpful sworn testimony.
- The defense may prefer not to telegraph its strategy this early.
- An informal evidence review with the prosecutor may achieve the same goals without the risks.
What Happens at the Hearing
A Texas examining trial usually moves quickly. Common features include:
- Sworn testimony from at least one law enforcement witness, often the lead investigator
- Physical exhibits, such as photos, lab reports, or recordings
- Limited defense witnesses, when strategically helpful
- Argument from each side after the evidence
The magistrate then announces a finding. The most common outcome is that the magistrate finds probable cause and continues the case to the next stage, often grand jury or trial court. Less common but more powerful outcomes include dismissal or significant bond modification.
If a witness’s testimony at the examining trial differs from later trial testimony, the recorded transcript can be used for impeachment. That is one of the main reasons defense lawyers value the procedure.
How an Examining Trial Connects to the Grand Jury
In Texas, felony charges generally proceed by indictment from a grand jury. The grand jury is a separate body, and its work is largely insulated from the public hearing process. Important points:
- A grand jury can return an indictment even if a magistrate found no probable cause at an examining trial.
- The defense usually does not get to present at the grand jury but can submit a written packet through the prosecutor.
- Once an indictment is returned, the pretrial process moves to the felony trial court.
A successful examining trial does not always end the case, but it can shape what the grand jury sees and what the prosecutor offers in plea negotiations.
Examining Trials in Misdemeanor Cases
Examining trials are generally a felony procedure. In misdemeanor cases, a probable cause review is usually conducted at the time of the magistrate warning, when bond is set, or in the form of motion practice in the county criminal court. Misdemeanor defense usually focuses on early discovery, suppression motions, and plea or trial negotiations rather than a separate evidentiary hearing.
What to Do After Arrest in a Felony Case
Felony cases move quickly in the days after arrest. Helpful steps include:
- Hire counsel as early as possible, ideally before the magistrate warning if the family is contacted in advance.
- Avoid jail phone discussions of the facts, as those calls are recorded.
- Preserve evidence, including phone data, video, and witness contact information.
- Discuss bail, examining trial timing, and grand jury strategy with counsel within the first days.
- Speak with our attorneys to plan whether to request or waive the examining trial.
Time matters. The right to an examining trial can disappear quickly once the grand jury convenes.
Why Choose the Law Offices of Richard C. McConathy
Our firm has more than 35 years of criminal defense experience in the Dallas–Fort Worth region. We have requested, conducted, and waived examining trials in a wide range of felony cases across 16 counties in North Texas. We know how to use this procedure to protect bond, build the record, and put pressure on weak prosecutions.
To discuss a felony case and the possibility of an examining trial, contact Criminal Defense Lawyer Dallas or reach us through our contact page.
Frequently Asked Questions
What is a preliminary hearing in Texas?
In Texas the closest equivalent is the examining trial, governed by Code of Criminal Procedure Chapter 16. It is a probable cause hearing held before a magistrate in felony cases before indictment.
Is an examining trial the same as arraignment?
No. Arraignment is when the defendant is formally informed of the charges and enters a plea. An examining trial is an evidentiary hearing where the magistrate reviews probable cause.
What happens after an examining trial in Texas?
Most often, the magistrate finds probable cause and the case continues to the grand jury. The bond may be modified. In some cases the magistrate may dismiss the charge or reduce the alleged offense level. The grand jury can still indict regardless of the magistrate’s decision.
Can an examining trial lead to dismissal of charges?
It can in some cases. If the magistrate finds no probable cause, the case may be dismissed at that stage. However, the prosecutor can still seek an indictment from the grand jury, which has independent authority to charge the case.
Should I waive my right to an examining trial?
That decision is strategic. Waiving may make sense when the state would indict quickly, when the defense prefers to keep its strategy quiet, or when an informal review will achieve the same goals. Our attorneys weigh these factors with each client.