Probable Cause Affidavit: What It Is and How a Texas Criminal Defense Attorney Uses It

When you are arrested in Texas, the State does not get to keep its case secret. A document called a Probable Cause Affidavit lays out the facts law enforcement submitted to a magistrate to justify your arrest. It is part of the public record in your case, and it is the first document the firm reads when a new client retains us.

This page explains what a Probable Cause Affidavit is, what it contains, why it matters to your defense, and how the firm uses it before your first consultation.

What is a Probable Cause Affidavit?

A Probable Cause Affidavit is a sworn written statement, signed by a peace officer, that states the facts the officer believes establish probable cause to arrest you. In Texas, an officer who arrests someone without a warrant must submit this affidavit to a magistrate, who reviews it to decide whether the arrest was supported by probable cause. The affidavit is also the foundation for the formal charging document the prosecutor later files.

Probable cause is not the same as proof beyond a reasonable doubt. It is a much lower standard. The officer only has to show enough facts that a reasonable person would believe a crime was committed and that you committed it. That low bar is one reason Probable Cause Affidavits often contain weaknesses that matter at later stages of the case.

The Probable Cause Affidavit is sometimes called a “PC affidavit” or referred to in the case file as the “Affidavit for Warrant of Arrest and Detention.” Different counties use slightly different forms, but the document serves the same purpose across Texas.

What’s in a Probable Cause Affidavit?

A typical Probable Cause Affidavit contains:

Identifying information. Your full name, date of birth, address, and the offense the officer believes you committed, including the statute number and offense level (Class C misdemeanor through first-degree felony).

The narrative. A paragraph or several paragraphs in the officer’s words describing what happened. This is the most important part of the document. It includes the date, time, and location of the incident; what brought the officer to the scene; what the officer observed; what was said by you, witnesses, or other officers; and what evidence was collected.

The basis for probable cause. The officer’s explanation of why the facts in the narrative add up to a violation of a specific Texas statute. This is often a single sentence or two, and it is frequently where the officer’s case is at its weakest.

Witness or informant information. If the case relied on a confidential informant, a 911 caller, a victim’s statement, or another officer’s observations, those sources are typically named or described in the affidavit.

The officer’s signature and oath. The affidavit is sworn before a magistrate or notary and signed by the officer. False statements in a Probable Cause Affidavit can expose the officer to perjury liability — a fact that matters when an affidavit’s narrative does not match the body camera footage or other evidence.

Why the Probable Cause Affidavit matters to your defense

Most criminal defendants never read their own Probable Cause Affidavit. They learn what they are accused of from the bond paperwork, from the prosecutor at arraignment, or from a lawyer who summarizes the charges in general terms. That is a missed opportunity.

The Probable Cause Affidavit is the State’s earliest, most committed account of what happened. It is sworn under oath. It is locked in. And it was written by the officer before discovery, before body camera footage was reviewed alongside the narrative, and before any defense investigation began. Whatever inconsistencies, omissions, or overreaches exist in the State’s case, this is where they often appear first.

Reading the affidavit early — before charges are formally filed, before the first court setting, before any plea conversation — changes what is possible in a case. It allows a defense attorney to build a strategy specific to the State’s actual evidence rather than to a generic version of the offense.

How the firm uses the Probable Cause Affidavit

The firm has practiced criminal defense exclusively since 2004 across 10 Central Texas counties: Travis, Williamson, Hays, Bell, Caldwell, Lee, Coryell, Burnet, Milam, and Bastrop. Across that footprint, the firm has obtained over 1,000 case dismissals since 2020.

By the first consultation, the firm has obtained your Probable Cause Affidavit, read it carefully, and identified the State’s evidentiary weak points. That work happens before you sit down to talk with an attorney for the first time.

The three-attorney team — David White, Kenneth Hines, and Taylor Kacir — reviews every case together, with weekly case reviews and shared notes. That means the analysis of your Probable Cause Affidavit is not the work of a single lawyer reading quickly. Multiple sets of eyes look at the document, comparing what the officer wrote against what Texas law actually requires the State to prove.

What that initial reading produces is a list. Specifically, the firm catalogs:

• Inconsistencies between the officer’s narrative and what other evidence (body camera, dash camera, 911 audio, witness statements) is likely to show.
• Missing elements of the charged offense — facts the State must prove but that the affidavit does not allege.
• Procedural errors during the stop, detention, search, or arrest that may support a motion to suppress.
• Credibility issues with named witnesses, confidential informants, or the officer’s own observations.
• Statutory mismatches — situations where the facts described in the affidavit, even if true, do not actually constitute the offense charged.

That list shapes the conversation at your first consultation. Instead of generic strategy, the discussion focuses on specific analysis of the State’s case from day one.

Common weaknesses in Probable Cause Affidavits

Probable Cause Affidavits are written quickly, often at the end of a long shift, and often before the officer has reviewed all the evidence that will eventually be available to the defense. Common categories of weakness include:

DWI cases. Affidavits frequently rely on conclusions (“subject was unsteady on his feet,” “subject had a strong odor of alcoholic beverage”) rather than detailed observations. They sometimes describe Standardized Field Sobriety Test results in ways that do not match what the body camera shows. They occasionally describe a stop based on a traffic violation that the dash camera does not actually capture.

Drug possession cases. Affidavits often describe a search based on consent, plain view, or the smell of marijuana. Each of those bases has specific legal requirements. Affidavits sometimes describe a search that does not actually fit any recognized exception to the warrant requirement, which can support a motion to suppress.

Assault and family violence cases. Affidavits commonly rely heavily on a single complainant’s statement, sometimes given under emotional distress. They may not describe injuries that match the alleged conduct, or they may omit context that supports a self-defense or mutual combat theory.

Theft cases. Affidavits sometimes do not establish all elements of theft — particularly intent and the value of the property — with the specificity Texas law requires.

Possession of a controlled substance with intent to deliver. Affidavits often rely on circumstantial evidence (quantity, packaging, presence of cash) to upgrade simple possession to delivery. Whether those facts actually support the upgrade is frequently contested.

These categories are illustrative, not exhaustive. Every Probable Cause Affidavit is read on its own facts, and weaknesses are case-specific.

What happens after the Probable Cause Affidavit is read

Identifying weak points in the State’s affidavit is the beginning of the defense work, not the end. Depending on what the affidavit shows, the next steps may include:

• Filing a motion to suppress evidence obtained in violation of the Fourth Amendment or Texas Code of Criminal Procedure Article 38.23.
• Requesting body camera, dash camera, and 911 audio that may contradict the affidavit’s narrative.
• Subpoenaing records (pharmacy logs, cell site data, medical records, employment records) that may impeach a witness or establish an affirmative defense.
• Negotiating with the prosecutor based on documented weaknesses in the State’s own affidavit, often before the case is formally indicted.
• Preparing for a probable cause hearing, examining trial, or grand jury presentation, depending on the offense level and procedural posture.

The path the case takes depends on the facts. The Probable Cause Affidavit is the starting point because it is the State’s earliest, most binding statement of what those facts are.

Frequently asked questions

Can I get a copy of my own Probable Cause Affidavit?
Yes. The Probable Cause Affidavit is a public record once it is filed with the court. The firm obtains it from the relevant clerk’s office or court file before your first consultation. You can also request a copy yourself in most counties, though the process and timing varies by county.

How long after my arrest is the Probable Cause Affidavit available?
In most Central Texas counties, the affidavit is filed within a day or two of arrest. Some counties make it available online through the clerk’s portal; others require an in-person or written request.

Is a Probable Cause Affidavit the same as an indictment?
No. A Probable Cause Affidavit is the document that justifies your initial arrest and detention. An indictment is a formal charging document returned by a grand jury (in felony cases) after the case has been investigated and presented. The affidavit comes first; the indictment comes later, if the case proceeds to that stage.

What if there are errors in the Probable Cause Affidavit?
Errors in the affidavit are not automatically fatal to the State’s case, but they matter. Inconsistencies between the affidavit and other evidence can be used at suppression hearings, in cross-examination at trial, and in negotiations with the prosecutor. Material false statements can support a Franks motion challenging the affidavit’s validity.

Does every criminal case start with a Probable Cause Affidavit?
Most warrantless arrests in Texas require a Probable Cause Affidavit submitted to a magistrate within 48 hours. Cases that begin with an arrest warrant, or that are presented directly to a grand jury, may not have a separate affidavit, though they will have similar foundational documents the defense can examine.

Does reading the Probable Cause Affidavit guarantee a dismissal?
No. Reading the affidavit identifies issues; it does not resolve them. Whether those issues lead to suppression, dismissal, or a more favorable resolution depends on the facts, the evidence, the prosecutor’s view of the case, and the court. Every case is fact-specific.

Why do other criminal defense lawyers not always read the Probable Cause Affidavit before the first consultation?
Some do. Others rely on a verbal summary from the client, a quick read of the bond paperwork, or the prosecutor’s initial offer. The firm has chosen to make reading the affidavit before the first meeting a standard part of intake because it produces a more useful first conversation.

What if my case has not been formally filed yet?
The Probable Cause Affidavit usually exists before formal charges are filed. The pre-charge stage is often the most productive time for defense work, because the prosecutor has the most discretion to decline charges or reduce the offense level. The firm’s analysis of the affidavit during this stage can directly inform that prosecutorial decision.

About the firm

The Law Office of David D. White, PLLC is a three-attorney criminal defense firm practicing across 10 Central Texas counties. The firm has obtained over 1,000 case dismissals since 2020. Initial consultations are free.

To schedule a consultation, call (512) 369-3737.

Every case is fact-specific. Past results do not predict outcomes in any future matter.