I have a defense attorney that wants an examining trial. The magistrate set the examining trial for 2 days after the next grand jury. The defense attorney wants the matter set before the next grand jury meets. Is there any law that requires an examing trial to be set within a certain amount of time from filing his motion? Please help!!

This is from Dix:

As a matter of practice, defense counsel generally has the obligation to seek an examining trial and to make the scheduling arrangements for one to be held.

A defendant's formal vehicle for pressing for an examining trial is an application for habeas corpus, claiming detention invalid because of the unavailability of an examining trial, or mandamus, claiming a violation by the magistrate of a nondiscretionary duty to hold a demanded examining trial.

41 TEX. Practice sec. 17.23.

The indictment will end the matter. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 424 (Tex. Crim. App. 1990) (State cannot be ordered to not get indictment so that defendant can have examing trial).

There is no law that requires an examining trial be set within any particular period of time. Assuming the grand jury meets every couple of weeks, it has long been reasonable to set the hearing a day or so after the grand jury meets.

Given that the purpose of an examining trial is to establish probable cause to hold the defendant, an indictment meets that requirement. If the defense attorney is upset, it is typically because he wanted to use the hearing as a forum for a deposition. That is not the purpose established by law.

I have had a couple of defense attorneys who attempt to file a "motion to quash" which really states they don't think we have enough evidence. I've had one in JP court and a couple in county court at law. Examining trial wouldn't really apply, because even if the judge found no probable cause to keep someone locked up (which they weren't anyway), it looks like examining trials don't bar the prosecution. Dix and Dawson said that the Garciacase discussed misdemeanors, but more about detention before and after trial. Is there any process for misdemeanors that is a test of probable cause before trial?

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Is there any process for misdemeanors that is a test of probable cause before trial?

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Unless you present the misdmeanor to a grand jury, I think the answer is generally no, with some exceptions. The issue comes up in some motions to suppress evidence, ALR hearings, and property disposition hearings under CCP Art. 47.01a (b).