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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Art. 2.11

Houston Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.


Article 2.11 is a definitional section of the code of criminal procedure and it covers what are know as "examining courts." An examining court is any time a magistrate sits for the purpose of inquiring into a criminal accusation against any person. An examining court can hear a case in an examining trial. An examining trial is available in felony cases when there has not yet been an indictment returned by a grand jury. Normally these hearings are conducted by trial courts.


Article 16.01 covers Examining Trials.


Art. 16.01 of the Texas Code of Criminal Procedure states that when an accused person has been brought before a magistrate for an examining trial, the officer must examine the truth of the accusation made, while allowing the accused sufficient time to obtain counsel. In appropriate cases, the magistrate may appoint counsel for the accused for the examining trial only, and will be compensated as provided in the Code. Additionally, the accused in any felony case has the right to an examining trial before indictment in the county where the offense took place, regardless of whether they are in custody or on bail. At this hearing, the magistrate will also determine the amount of bail, if the case is bailable. If the accused has been transferred for criminal prosecution after a hearing under Section 54.02 of the Family Code, the court may grant an examining trial at their discretion.


In Ex Parte McIver, the court of criminal appeals stated that the right to an examining trial before indictment is a "fundamental right" that is guaranteed to all accused persons under Article 16.01 of the Texas Code of Criminal Procedure. The court also emphasized that the examining trial serves as an important safeguard against arbitrary arrests and detentions and ensures that the prosecution has a sufficient factual basis for the charges against the accused. Ex Parte McIver, 715 S.W.2d 686 (Tex. Crim. App. 1986)


"A justice of the peace is not sitting as a magistrate until the accused is arrested and brought before him for an examining trial. The difference between the office of magistrate and that of justice of the peace presiding over a court of inquiry is decidedly marked and evident; and where he sits as an examining court in his own precinct, he is a magistrate and his jurisdiction is coextensive with the limits of his county. Following Hart v. State, 15 Texas Crim. App., 202, and other cases."


Brown v. the State, 55 Tex. Crim. 572, 573 (Tex. Crim. App. 1909).


Brown v. the State is a case from 1909 in Texas, in which the defendant was convicted of perjury for statements made during a court of inquiry held by a justice of the peace outside of his precinct. The appeals court overturned the conviction, finding that the justice of the peace had no jurisdiction to hold a court of inquiry in another precinct where there was already a resident and qualified justice of the peace. The court also found that it was reversible error to allow the state to introduce verbal confessions of the defendant while under arrest to impeach him, as they were not in writing and not in compliance with the act of the legislature.




Art. 2.11. EXAMINING COURT. When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


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