Most criminal prosecutions for a Texas crime involving controlled substances start with an arrest of a suspect. Arrests can also occur after the defendant is formally charged with a crime.

Most drug offenses, such as distribution or conspiracy to distribute a controlled substance, are violations of both state and federal law. In most instances, a defendant will be prosecuted in state court or in federal court, but not both.

Drug Arrests

Federal prosecutions generally begin with an arrest followed by an indictment, although more complex cases often begin with an indictment followed by an arrest. If the police catch someone in the act of committing a drug crime, an arrest is typically made and a prosecution follows the arrest. If a federal investigation is ongoing and evidence is presented over time to a grand jury, an indictment might be returned before an arrest is made.

If local police make an arrest in a case that meets the guidelines for federal prosecution, the case may be referred to the U.S. Attorney’s Office. A federal prosecutor will then decide whether to accept the case or leave the case in the hands of state officials for possible prosecution in state court. The U.S. Attorney’s Office will usually accept only those cases it thinks it can win. If there are problems with the case, such as weak evidence or an unconstitutional arrest, the U.S. Attorney might decline federal prosecution.

If a drug arrest is made by a federal officer (such as a DEA or FBI agent), the U.S. Attorney’s office will review the case to determine whether it warrants prosecution. A federal prosecution will usually be commenced unless the prosecutor believes a problem exists that will make a conviction unlikely.

If a case begins with an arrest, federal prosecutors will usually file a criminal complaint with the federal court. The complaint serves as the charging document until the case is presented to a grand jury for indictment. If the arrest was for a misdemeanor, the government can file an “information” as a charging document and is not required to obtain an indictment. In some cases, a defense attorney may advise a defendant to give up his or her right to indictment and to allow a felony to be charged in an information.

Indictment on Drug Charges

Most federal cases that charge a felony proceed by indictment. All federal defendants charged with a felony have the right to an indictment. When the Bill of Rights was adopted, an indictment was viewed as an important protection against unfounded prosecutions. Indictments are returned by a grand jury, which consists of a group of ordinary citizens who review the evidence and decide whether there is probable cause to support a criminal charge.

As the grand jury has evolved, it has provided the protection against unfounded charges that the Framers of the Constitution envisioned. Since it meets in secret, the defendant usually has no knowledge that a grand jury is considering an indictment. The defendant has no right to appear or to present a defense. A federal prosecutor is in complete control of the evidence the grand jury hears. Since hearsay is permitted, that evidence often consists of an FBI or DEA agent reciting a carefully edited version of the evidence gathered by the police. Given the control that the U.S. Attorney’s Office maintains over grand jury proceedings, it is often said that a competent federal prosecutor “can indict a ham sandwich.”

Sometimes federal prosecutors call witnesses before the grand jury in order to obtain information that the witnesses will not provide voluntarily. That practice is discussed more fully in our article “What you should do if you are asked to testify about a federal drug crime.”

On other occasions, federal prosecutors will call witnesses before a grand jury because they want to lock down the testimony of that witness. They are most likely to do that if they fear that a witness might change his or her story if called as a witness at trial. Witnesses may also be called to testify before a grand jury if the prosecutor wants to make a record of their cooperation in order to reward them with a recommendation for a reduced sentence.

Once the grand jury has heard all the evidence, the prosecutor explains the law and asks the grand jury to vote on an indictment. The grand jury inevitably returns the indictment that the prosecutor requests. The indictment is filed with the court and stands as the charging document that notifies the defendant of the crimes against which he or she must defend.

How Drug Charges Are Filed

If you are charged with a Class C misdemeanor — unlikely if you are arrested for a Texas controlled substance offense, since very few drug crimes are that minor — a criminal complaint will be filed in municipal or justice court. If you are charged in a county court or a county criminal court with a Class A or B misdemeanor, an additional document called an “information” will be filed. The information is the formal charging document. It tells you exactly what crimes are charged and the maximum penalties you could face. Those documents are prepared and filed by prosecutors.

If you are charged with a felony, your charges will be determined by a grand jury. While a grand jury is meant to be a neutral body that decides whether the evidence creates probable cause to believe a named individual committed a felony, in practice the grand jury is controlled by the prosecution. A prosecutor tells that grand jury what crimes to charge and the grand jury nearly always does what the prosecutor tells it to do. Nine of the twelve grand jurors must agree on the charges, but it is not difficult for the prosecutor to find those nine votes.

When the grand jury votes to charge someone with a felony, the formal charging document is called an indictment (also known as a “true bill”). An indictment returned by the grand jury is filed in the district court or criminal district court in the county where the grand jury is sitting. The grand jury can also decide not to indict by returning a “no bill.” That rarely happens and it does not prevent a subsequent grand jury from returning an indictment against a defendant that charges the same offenses.

An indictment can be returned before or after a defendant is arrested. If the defendant is not in custody or has not been released on bond, the court can issue a form of an arrest warrant called a capias that orders the police to arrest the defendant and to bring the defendant to court. Alternatively, the court can issue a summons that is served on the defendant, ordering the defendant to appear in court. If the defendant does not appear as ordered, a capias will be issued.

The right to indictment by a grand jury can be waived. Whether it makes sense to do that in your case is a question you will want to discuss with your lawyer.

Contact An Drug Attorney Today

If you have been arrested for a drug crime in Texas, an experienced criminal defense attorney should scrutinize that arrest to determine whether it can be challenged. To discuss your arrest with a respected drug defense lawyer, call Hamilton & Grant.