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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Articles 2.04, 2.05, and 2.06

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

Articles 2.04 - 2.06 of the Texas Code of Criminal Procedure all relate to the creation of criminal cases and the duty of the District or County Attorney in filing what is called an "information." This can be confusing because during a consultation I will often say to a client, "Hold on a moment, let me look at the information." They may think I am talking about all types of data or narrative documents created by the police when I am actually referring to the formal charging document generated by the district attorney's office upon the filing of a criminal case.

In smaller jurisdictions the criminal complaint is drafted and filed by the police officer who made the arrest. This complaint may or may not have all the legally required elements listed in it in order to correctly list a charge. In larger counties like Montgomery County and Harris County a District Attorney approves all charges before the individual under investigation is arrested by the police. The district attorney then prepares the "information" without consulting the police and then a police officer arrives in person or now over computer with the district attorney's office in Harris County and swears to the truth of the data presented to the DA so that the official charging document called the "information" may be filed with the clerk. A complaint and an information are nearly identical. A complaint is signed by the police or other person swearing that an offense was committed. An information is signed by the district or county attorney.

Article 2.04 requires that, "upon complaint being made before a district or county attorney" that a crime has been committed the District or county attorney "Shall" reduce the complaint to writing and cause the same to be signed and sworn to by the complainant. Almost 100% of the time the complainant is a police officer who has investigated the case or made an arrest. In the case of warrants a substitute complainant may be made. In Harris County, however, a typist who works for the district attorney's office reviews the information presented by the police in what is called a DIMS summary. Then the typist swears that information to be true and signs the criminal complaint. The Chief on Duty at the time will then sign the information.

It is interesting that the article says, "Shall reduce the complaint to writing" because there is no duty to actually file the case in court and require a defendant to be arrested or appear in court. A district attorney has complete discretion as to whether to file a criminal case. Although this statute seems to suggest that they do not have discretion to not reduce the complaint to writing. I can assure you from my time as a District Attorney that this mandate is being ignored daily. District Attorney's Offices frequently reject charges and never prepare a complaint nor swear the complainant to the complaint.

Article 2.05 requires that when a complaint is made an information shall be drafted and filed. When taken in conjunction with the mandate of 2.04 to reduce a complaint to writing it seems there is an argument that you can force a district attorney to file a case.

There is an exception in counties having no county attorney misdemeanor cases may be tried upon complaint alone.

Article 2.06 merely states and thereby gives authority to District and County Attorneys to administer oaths where the complainant swears that the commission of an offense occurred.

Art. 2.04. SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 2.05. WHEN COMPLAINT IS MADE. If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 2.06. MAY ADMINISTER OATHS. For the purpose mentioned in the two preceding Articles, district and county attorneys are authorized to administer oaths. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

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