Criminal Law in Texas: The Basics

Criminal cases in Texas involve the government (prosecution) accusing a defendant of committing a crime listed in the Texas Penal Code.  The Texas Penal Code outlines two categories of crimes: misdemeanors and felonies.


Misdemeanors are minor crimes punishable by a fine or up to one year of incarceration in local or county jail.  Misdemeanor offenses are divided into three classifications: Class A misdemeanors, Class B misdemeanors, and Class C misdemeanors.

The Texas Penal Code establishes sentencing ranges and specifies which courts will exercise original jurisdiction in criminal cases for Class A, Class B, and Class C misdemeanors.

Classification of Offense Sentencing Range Trial Court
Class A Misdemeanor
Examples: resisting arrest; theft of $500- $1,500
  • Up to one year of in local or county jail
  • Maximum fine of $4,000
County-level trial court
Class B Misdemeanor
Examples: driving while intoxicated; theft of $20-$500
  • Up to 180 days in local or county jail
  • Maximum fine of $2,000
County-level trial court
Class C Misdemeanor
Examples: Traffic violations; theft <$20
  • Maximum fine of $500
Local Trial Courts


Felonies are more serious crimes punishable by incarceration for more than one year in a state jail or prison or by death.  Felony offenses are divided into five classifications: capital felonies, first-degree felonies, second-degree felonies, third-degree felonies, and state jail felonies.

The Texas Penal Code establishes sentencing ranges for capital felonies, first-degree felonies, second-degree felonies, third-degree felonies, and state jail felonies.  District courts exercise original jurisdiction over all felony cases, regardless of classification.

Classification of Offense Sentencing Range
Capital Felony
Capital murder 
  • Life imprisonment, without the possibility of parole, unless the offender was under the age of 18 at the time of the offense or is a certified juvenile
  • death
First Degree Felony
Examples: murder; theft of >$200,000
  • Five to 99 years in state jail or prison
  • Maximum fine of $10,000
Second Degree Felony
Examples: manslaughter; theft of $100,000-$200,000
  • Two to 20 years in state jail or prison
  • Maximum fine of $10,000
Third Degree Felony
Examples: impersonation; theft of $20,000-$100,000
  • 2 to ten years in state jail or prison
  • Maximum fine of $10,000
State Jail Felony
Example: possession of 4 oz. – 1 lb. of marijuana; theft of $1,500-$20,000
  • 180 days to two years in state jail
  • Maximum fine of $10,000

As you may have noted when reviewing the table above, only capital felonies (i.e., capital murder) may be punishable by the death penalty.  Capital murder includes offenses such as:

  • murder of a public safety officer
  • intentionally committing murder while committing/attempting to commit aggravated kidnapping, burglary, robbery, aggravated sexual assault, arson, etc.
  • committing murder for compensation
  • committing murder while incarcerated for murder
  • committing murder while escaping/attempting to escape jail or prison
  • murder of an employee of a penal system while incarcerated
  • murdering more than one person at the same time or at different times if following the same scheme or course of conduct (for instance, serial killers)
  • murdering someone under 15 years old
  • murdering a state or local judge in retaliation for or on account of their service as a judge

Criminal Justice Process in Texas

Flow chart depicting steps in Texas's criminal justice process

Arrest, arraignment, bail, & indictment

Once an individual suspected of committing a crime is arrested, the defendant is arraigned (formally charged and made aware of his rights), and bail may be set.  Bail is not guaranteed by the Texas Constitution.

Felony cases in Texas require an indictment before proceeding to trial.  A grand jury reviews evidence gathered by prosecution to determine if the case should proceed to trial.  If nine out of 12 members of the grand jury agree that the process should continue, a true bill, or indictment, is issued; if not, no bill is issued.  Grand juries and indictments are intended to prevent abusive prosecutions.

Plea bargaining

Plea bargaining occurs when a defendant and a prosecutor negotiate a deal prior to going to trial.  Due to overcrowded court dockets, most criminal cases in Texas are resolved through plea bargaining.  Plea bargains are intended to save both time and money.  However, many have criticized the use of plea bargaining because it removes the defendant’s right to a trial by jury and ability to appeal the case to higher courts for review and because judges are not always required to follow a plea bargain agreement when sentencing.


If the defendant chooses not to enter a plea bargain, the case will be brought to trial.  The defendant may choose whether to have a trial by jury, which is guaranteed by the Texas Constitution’s bill of rights, or waive that right and choose to be tried by a presiding judge.

If the defendant chooses to have a trial by jury, the trial jury (or petit jury) is responsible for determining guilt or innocence and, in the case of capital felonies, may take part in sentencing.

Post-Trial Sentencing

If the defendant is found guilty of committing a crime, he or she will be sentenced by the judge.  Judges exercise some discretion and latitude within the sentencing framework and guidelines established within the Texas Penal Code.

Substantive vs. Procedural Laws

One way to differentiate between different types of laws is to look at the content of the laws themselves.

Substantive Laws

Laws whose content, or substance, defines what we can or cannot do are called substantive laws.  Substantive laws fall into two categories: criminal laws and civil laws.

Criminal laws prohibit behavior that the government has determined to be harmful to society.  Violation of a criminal law is called a crime.  Criminal law proceedings involve two parties: the government (prosecution) and the person(s) accused of committing a crime (defendant(s)).  In criminal law cases, the burden of proof lies with the government, which is charged with proving that the defendant is guilty beyond a reasonable doubt, and defendants in both federal and state criminal trials are afforded numerous civil liberties, or protections, such as the right to counsel.  Defendants who are found guilty in criminal cases may be subject to fines, community service, probation, or imprisonment.

Civil laws regulate interactions between individuals.  Violation of a civil law is called a tort.  Civil law proceedings involve two parties: the plaintiff, or person who brings the case in a court of law, and the defendant, against whom the case is brought.  In civil law cases, the burden of proof lies with the plaintiff, who must demonstrate a preponderance of evidence.  Defendants who are found at fault in civil cases may be subject to punitive damages, which are intended to punish the defendant for the action, or compensatory damages, which are intended to compensate the plaintiff for damages, injury, or another incurred loss.

Some actions may violate both criminal and civil law – and may result in both a criminal case and a civil case.

Procedural laws

Procedural laws establish how laws are applied and enforced – in other words, how legal proceedings should take place.  Procedural laws include rules about jurisdiction, plea bargaining, evidence, appeals, legal representation/counsel, due process, etc.  Our federal and state constitution contain many provisions guaranteeing procedural due process to protect the rights of individuals who must deal with the legal system.

Sources & Hierarchy of Law in Texas

There are various sources of law in Texas.

Federal Law

  1. Constitutional law
    • U.S. Constitution, including amendments
    • Federal court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the U.S. Congress
  3. Administrative law
    • Federal bureaucratic agency rules and regulations

State Law

  1. Constitutional law
    • Texas Constitution, including amendments
    • State court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the Texas legislature
  3. Administrative law
    • State bureaucratic agency rules and regulations
  4. Local codes and ordinances
    • Laws passed by cities and counties

The U.S. Constitution states that federal laws are higher than state laws within the legal hierarchy (Supremacy Clause, U.S. Constitution).  Similarly, the Texas Constitution states that state laws (constitutional law, statutory law, and administrative law) are higher than local codes and ordinances within the legal hierarchy.Figure depicting legal hierarchy of federal, state, and local laws

Within both the federal and state legal systems, constitutional law is considered the foundation of government and, as such, is viewed as higher than statutory laws created by the legislature under their constitutional authority.  Statutory law is viewed as higher than administrative law, because legislatures create and delegate authority to bureaucratic agencies.

Figure depicting legal hierarchy of constitutional, statutory, and administrative laws