What should you do if you are under investigation but not charged in Texas?
Decline to be interviewed, say nothing about the allegation to anyone, change nothing on your phone or in your records, and have a lawyer contact the investigator for you. Texas police do not have to tell you that you are a suspect, and a voluntary interview carries no warning requirement because you are not in custody. The pre-charge stage is the only period in which a case can be stopped before it exists.
- No charge yet does not mean no case. It means the decision has not been made.
- Miranda warnings apply to custodial questioning, not to a voluntary interview.
- Deleting messages once you know about an investigation can be a third degree felony.
- Asking a complainant to drop the case can be witness tampering.
- Limitation periods are measured in years, so silence from police does not mean it is over.
- Counsel before charge can present evidence a prosecutor would otherwise never see.
People usually call a defence lawyer after an arrest. The more useful call comes earlier, when a detective has left a card, a bank has frozen an account, or a family member mentions that officers have been asking questions. This guide explains what the pre-charge stage actually is, what can be done in it, and the specific acts that convert an investigation into additional charges. It is part of our criminal defense practice. Peter M. Barrett has been licensed in Texas since 1994 and has tried more than 150 jury trials.
What "under investigation" means
There is no formal status called being under investigation in Texas state practice. Unlike the federal system, which sometimes sends a target letter, Texas police have no obligation to tell you that you are a suspect, and usually do not.
What exists instead is a period in which police gather evidence and a prosecutor later decides whether to accept charges. During it, investigators can obtain search warrants, seize and image phones and computers, subpoena records, interview witnesses, and ask you to come in voluntarily. None of that requires a charge first.
A case ends in one of three ways: no charge is filed, charges are filed, or for a felony the matter goes to a grand jury, which may return an indictment or a no-bill. See grand jury indictments in Texas.
Why a "voluntary" interview is the most dangerous invitation
Miranda warnings are required for custodial interrogation. If you are not in custody and attend voluntarily, there is no warning requirement, and the fact that you were not warned is not a defect in the case. The interview is simply evidence.
Officers may also tell you, accurately, that you are free to leave. That statement is part of what makes the interview non-custodial, and so part of what makes everything you say admissible without a warning. For the detail, see understanding your Miranda rights and the right to remain silent in Texas.
There is rarely an upside. An investigator who already intends to file is not persuaded by an explanation, and an investigator who has not decided now has a recorded account to test against every other piece of evidence. Inconsistencies in an innocent person's account are common, because memory is imperfect, and they read as deception.
The acts that create new charges
This is the part of the pre-charge stage people get wrong, often with good intentions. Two statutes matter.
Tampering with physical evidence. Under Penal Code §37.09(a), a person commits an offence if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys or conceals any record, document or thing with intent to impair its verity, legibility or availability as evidence. It is a felony of the third degree, rising to a second degree felony if the thing concealed is a human corpse (§37.09(c)).
Note the trigger. The duty attaches once you know an investigation is pending. Deleting a message thread, wiping a phone, clearing a browser history or shredding paperwork after that point is a separate felony, independent of whether the original allegation was true. It is also one of the easiest offences to prove, because deletion leaves traces and timestamps. See tampering with evidence in Texas.
Tampering with a witness. Under Penal Code §36.05, it is an offence to offer, confer or agree to confer a benefit on a witness or prospective witness, or to coerce one, with intent to influence that person to testify falsely, to withhold testimony, information, a document or a thing, to elude legal process, to absent themselves from a proceeding, or to abstain from, discontinue or delay the prosecution of another.
That last phrase is the one that catches families. Asking a complainant to drop the case, offering to pay for damage in exchange for silence, or having a relative pass on a request can all fall inside it. See also retaliation and obstruction in Texas.
So the safe list is short. Do not contact the complainant or any witness. Do not delete, move or "tidy" anything. Do not discuss the allegation with family, colleagues or online. Do not consent to a search or hand over a phone passcode. Let a lawyer make the contact.
How long police can take
There is no deadline for an investigation itself. The outer limit is the limitation period for presenting a charging instrument, and those are measured in years.
For misdemeanors, Code of Criminal Procedure art. 12.02(a) allows two years from the date of the offence for an indictment or information for a Class A or Class B misdemeanor, and for a complaint or information for a Class C. One exception matters: a misdemeanor assault under Penal Code §22.01 committed against a person in a family, household or dating relationship as described by Family Code §§71.0021(b), 71.003 or 71.005 carries three years rather than two (art. 12.02(b)).
Derivative offences inherit the period of the underlying crime. Under art. 12.03, criminal attempt carries the same period as the offence attempted, conspiracy and organized criminal activity carry the period of the most serious object offence, solicitation carries the period of the felony solicited, and any offence titled "aggravated" carries the same period as the primary crime.
Felony periods vary widely, and several serious offences have no limitation period at all. The full picture is in Texas criminal statute of limitations. The practical point here is that months of silence are not evidence that a case has gone away, and people often relax, talk, and create new evidence in exactly that window.
What a lawyer can do before a charge exists
The pre-charge stage is the only period in which a case can be prevented rather than defended. Work available in it includes:
- Becoming the point of contact. Once counsel notifies the investigator, interview requests and doorstep visits route through the lawyer, which ends the pressure to explain.
- Declining consent properly. Much of what police obtain pre-charge comes from consent rather than a warrant. Refusing consent is not obstruction, and it preserves the arguments later made in a motion to suppress.
- Preserving favourable evidence. Camera footage, messages, phone records and alibi material are overwritten or lost on short cycles. Investigators collect what supports a charge; nobody else is collecting the rest.
- Presenting to the prosecutor before intake. A prosecutor deciding whether to accept a case reads what the police file contains. Material submitted before that decision is read at the moment it can still change the outcome.
- Grand jury submissions. In a felony case, a defence packet can be put before the grand jury, which can return a no-bill.
- Arranging a surrender. Where a charge is coming, a planned surrender with a bond already set avoids an arrest at home or at work.
If officers arrive with a warrant
A warrant authorises only what it describes. Ask to see it, read what it covers, and do not consent to anything beyond it, because consent widens a search that a warrant has limited. Do not obstruct the search, and do not answer questions during it. For when a warrant is not required at all, see when police can search your home without a warrant.
- Texas police need not tell you that you are a suspect, and usually will not.
- A voluntary interview is admissible without any warning, because you are not in custody.
- Altering or deleting anything once you know of an investigation is a third degree felony under §37.09.
- Asking a complainant to drop the case can be witness tampering under §36.05.
- Misdemeanor limitation is two years, or three for family violence assault under §22.01.
- Pre-charge is the only stage where a case can be stopped before it is filed.
Frequently asked questions
How do you know if you are under investigation in Texas?
Often you do not. Texas police have no duty to tell a suspect that an investigation exists, and there is no state equivalent of a federal target letter. The usual signs are a detective asking to talk, officers contacting friends, family or an employer, a seized phone or computer, or a bank or employer mentioning a records request.
Should you talk to a detective if you have not been charged?
Not without a lawyer. Because a voluntary interview is not custodial, no warning is required and everything said is usable. An investigator who has already decided to file will not be dissuaded, and one who has not now has a recorded account to test against the rest of the evidence.
How long can police investigate without filing charges in Texas?
There is no limit on the investigation itself, only on the time to present a charging instrument. For Class A and Class B misdemeanors that is two years from the date of the offence, and three years for a misdemeanor assault against a family, household or dating partner. Felony periods vary, and some offences have no limitation period.
Can you delete messages if you are under investigation?
No. Penal Code section 37.09 makes it an offence to alter, destroy or conceal a record, document or thing while knowing an investigation is pending or in progress, with intent to impair its availability as evidence. That is a third degree felony and is separate from the original allegation.
Can you ask the alleged victim to drop the charges?
That is a serious risk. Penal Code section 36.05 covers offering a benefit to, or coercing, a witness or prospective witness in order to withhold testimony or to abstain from, discontinue or delay a prosecution. Contact should go through a lawyer rather than directly or through a relative.
Do you need a lawyer if you have not been charged?
The pre-charge stage is the only period in which a case can be prevented rather than defended. A lawyer can become the point of contact, decline consent, preserve evidence that is about to be lost, present material to the prosecutor before the filing decision, and make a submission to a grand jury.
If an investigator has contacted you
Do not return the call to explain. Do not touch your phone, your accounts or your records. Do not tell anyone connected to the matter what you have been told. Write down what was said, who said it and when, for your lawyer only, and then let counsel make the contact. If an arrest has already happened, start instead with what to do after an arrest.
The law this page describes, at the source.
This guide is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.