Emergency? Call Now A felony arrest in San Antonio is not a felony charge. That surprises people. The arrest starts the clock, but a felony case does not really exist until a grand jury says it does. The stretch of time between the two — often two to four months in Bexar County, sometimes longer — is the most underused period in criminal defense. Families spend it waiting. The State spends it building. I’d rather spend it working.
What a grand jury is
A Texas grand jury is twelve citizens, with four alternates, selected at random from the county under Article 19A.201 of the Code of Criminal Procedure. They sit for a term of months and hear case after case, usually presented by an
assistant district attorney in a closed room. There is no judge in the room. There is no defense lawyer in the room. The accused is not there unless the grand jury asks for him, and even then his lawyer waits outside.
Their job under Article 20A.051 is to inquire into offenses and decide whether there is probable cause to formally charge someone. Nine of the twelve must agree to return an indictment, which the statute calls a “true bill” (Article 20A.301). If nine do not agree, the result is a “no-bill,” and the case, at least for now, is over.
Probable cause is a low bar, much lower than proof beyond a reasonable doubt. That is why the old line about indicting a ham sandwich exists. But the line is misleading in one important respect: grand juries in Bexar County do no-bill cases, and they do it more often when the defense has given them a reason to.
What the State is doing during this window
When I supervised felony prosecutors, the grand jury presentation was where a case got its shape. The prosecutor reviews the police reports, decides what offense to charge — and at what level — and drafts the indictment. In a case with any complexity, this is also when the office decides whether to add enhancements, whether to charge one count or five, and whether the facts support the top charge or something less.
The detective’s version of events is usually the only version the grand jury hears. If nobody has told the prosecutor that the eyewitness has a motive to lie, that the “victim” sent threatening texts an hour before the fight, or that the
accused has a documented reason to have been where he was, the grand jury will not hear it either.
What the defense can do
Texas does not give the accused a right to appear before the grand jury. But nothing prevents the defense from putting information in front of the prosecutor who presents the case, and in appropriate cases from asking that the grand jury be given a written submission. I have done this from both sides of the table. As a prosecutor I read defense packets, and some of them changed my mind about what to charge. As a defense lawyer I write them.
A grand jury packet is not a plea for mercy. It is evidence: sworn statements, photographs, medical records, phone records, video, the things a detective didn’t collect because he had already decided what happened. Sometimes the
packet leads to a no-bill. More often it leads to a lesser charge, or to the prosecutor deciding that the top count won’t survive trial and offering something the family can live with. Either way, it is far easier to change a charging decision before it is made than to undo it afterward.
This is also the period for preserving evidence that disappears — surveillance video, 911 recordings, body-camera footage, the deceased’s or complainant’s social media — and for getting the accused’s own injuries photographed and documented while they still exist.
The deadlines that protect the accused
Two statutes matter here, and families should know them.
Article 17.151 of the Code of Criminal Procedure says that a person held in jail on a felony must be released on personal bond or a reduced bond if the State is not ready for trial within 90 days of the start of detention. In practice, “ready for trial” generally means indicted. If the State has not indicted by day 90, the defense can move for release.
Article 32.01 goes further: if no indictment is returned by the later of the next term of court or the 180th day after commitment or bail, the prosecution is to be dismissed and the bond discharged unless the State shows good cause. That does not bar re-indictment later, but it ends the case as it stands and puts the burden back on the State.
A person out on bond does not get the 90-day benefit, but the 180-day rule still applies. I calendar both dates on the day a client hires me.
After the indictment
Once the true bill is returned, the case is assigned to a district court, the bond conditions may be revisited, and discovery under Article 39.14 begins in earnest. If the accused is not in custody or on bond when the indictment is
returned, Article 20A.304 keeps it sealed until a capias is served — which is how people find out they have been indicted when an officer arrives at their door. That is another reason to have counsel engaged before the grand jury
meets: a lawyer can usually arrange a surrender on a pre-set bond instead of an arrest at work.
An indictment can also be attacked. Article 27.03 allows a motion to set aside an indictment when, for example, fewer than nine grand jurors concurred or an unauthorized person was present during deliberations. These motions are uncommon but not theoretical.
What to do now
If someone in your family has been arrested for a felony in Bexar County and has not yet been indicted, you are in the window. Do not wait for the indictment to hire a lawyer. Call me at 210-663-3750 and I will tell you what I think can be done in the time that’s left.
Criminal Defense Lawyer in San Antonio
The first 48 hours after a felony arrest in Bexar County
Frequently asked questions
How many grand jurors have to agree to indict in Texas?
Nine of twelve, under Code of Criminal Procedure Article 20A.301. Nine also constitute a quorum under Article 19A.251.
Can my lawyer go into the grand jury room with me?
No. If the accused testifies — which is rare and usually unwise — counsel waits outside and the witness may step out to consult. The defense can, however, submit information to the prosecutor for the grand jury’s consideration.
What does a “no-bill” mean?
The grand jury declined to indict. The case is dismissed as it stands. The State may present the case again to a later grand jury if new evidence develops, but in practice a no-bill usually ends the matter.
How long can I be held in jail without an indictment?
For a felony, Article 17.151 requires release on personal bond or reduced bond if the State is not ready for trial within 90 days of detention, subject to listed exceptions. Article 32.01 requires dismissal if there is no indictment by the later of the next court term or 180 days, absent good cause.
Will I be notified when I’m indicted?
If you are on bond, the clerk delivers a copy of the indictment to you or your lawyer (Article 25.03). If you are not on bond or in custody, the indictment stays sealed until you are arrested on the capias — which is why having a lawyer on file matters.