concurring.
By reversing the judgment on the issue of probable cause, the majority opinion reaches the right result for the wrong reason. The majority opinion addresses the question of probable cause as though the capias had been issued after an erroneous determination of probable cause by a magistrate. This treatment ignores the crucial feature of the case: The parties seem to agree that the issuance of the capias was an automatic, ministerial act of the deputy district clerk, which involved no exercise of discretion. The question is not whether there was an erroneous determination of probable cause, for there was no determination at all.
The question is whether the constitutional prohibitions against the issuance of warrants without probable cause (United States Constitution, Amendment IV; Texas Constitution, Article I, Section 9) forbid an arrest under authority of a capias issued without a magistrate’s determination of probable cause. We should hold that such arrests (and the searches conducted incident to them) violate the state and federal constitutions.
*507Because the "arrest was invalid for this reason, we need not consider the appellant’s argument that the complaint failed to state probable cause. Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Coolidge held that before a reviewing court proceeds to the issue of probable cause, it must first be satisfied that the warrant was issued by a neutral and detached magistrate. The reason is that the requirement that a neutral and detached magistrate evaluate the officer’s evidence of probable cause is the “point” of the Fourth Amendment. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948). It is “the very heart of the Fourth Amendment directive” not only that an officer have probable cause, but that he present it to a magistrate and get a warrant. United States v. United States District Court, 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972). The existence of probable cause will not excuse the failure to get a warrant from a magistrate who has made such a determination. United States v. United States District Court, supra; Coolidge v. New Hampshire, supra; Johnson v. United States, supra; Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Stoddard v. State, 475 S.W.2d 744, 749-750 (Tex.Cr.App.1972). These authorities demonstrate that, if no constitutionally valid warrant was obtained (and there was no justification for a search without a warrant), the existence or nonexistence of probable cause is irrelevant.
Several opinions of the Supreme Court of the United States indicate that it would be unconstitutional to make an arrest on the authority of a warrant issued without a magistrate’s determination of probable cause. The Court recently has delivered a dictum expressly to that effect. See Gerstein v. Pugh, 420 U.S. 103, 118, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), discussed below.
In Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927), a bench warrant issued when the United States attorney filed an information. The affidavits supporting the information were defective. The Court held that the arrest on the warrant violated the Fourth Amendment. In part I of Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court held that a search warrant may be issued only by a neutral and detached magistrate, and that a prosecutor is not such a magistrate. Compare Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). (I note that, if the county clerk automatically issues a capias when the prosecutor files an information and complaint, then the Texas prosecutor effectively determines when this writ shall issue.) In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), the Court held that a municipal court clerk who was an employee of the judicial branch subject to the judge’s supervision, and who was not connected with police or prosecution, and who was competent to make the determination, could function as a magistrate and determine whether complaints showed probable cause for the issuance of an arrest warrant. From these holdings, and from the constitutional provisions cited above, we can state the constitutional requirements for the issuance of an arrest warrant when a misdemeanor1 prosecution is instituted: A neutral and detached magistrate who is competent to make the determination must determine from the complaint that there is probable cause to issue the warrant.
A system which allowed a court to issue an arrest warrant solely on the filing of the prosecutor’s information once existed in the Philippine Islands, and it was upheld in Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914). But “the result reached in Ocampo is incompatible with the later holdings of Albrecht, Cool*508idge, and Shadwick.” Gerstein v. Pugh, 420 U.S. 103, 118, 95 S.Ct. 854, 865 fn. 20, 43 L.Ed.2d 54 (1975) (dictum).
The issuance of the capias in this case was essentially identical to the issuance of the arrest warrant in Ocampo, supra. As the holdings discussed above imply, and as the dictum in Gerstein, supra, expressly states, the Fourth Amendment will not countenance an arrest based upon a warrant which issues automatically without a determination of probable cause by a neutral and detached magistrate. A result which upholds the procedure by which the capias issued in this ease is equally incompatible with the constitutional doctrines that I have discussed above.
I pause at this point to address a problem of terminology. A capias is not a “warrant of arrest,” as defined in V.A.C.C.P., Article 15.01, and the person who is seized when a capias is executed is not “arrested” within the meaning of V.A.C.C.P., Article 15.22. But the statutes stated explicitly that a capias is a writ that orders, and is executed by making, an arrest. See V.A.C.C.P., Articles 23.01, 23.02(2), 23.05, 23.06, and 23.10 through 23.17. For the purposes of our constitutional considerations, there is no substantive difference between an arrest warrant and a capias. My references to “warrants” include both the “warrant of arrest” and the “capias.”
“A ‘capias’ is a writ issued by the court or clerk, and directed ‘To any peace officer of the State of Texas’, commanding him to arrest a person accused of an offense and bring him before that court immediately, or on a day or at a term stated in the writ.” V.A.C.C.P., Article 23.01. In felony cases, the statutes clearly state who issues the capias and when it issues: “A capias shall be immediately issued by the district clerk upon each indictment for felony presented . . . .” V.A.C.C.P., Article 23.03(a). In misdemeanor cases, the statutes say only that, “In misdemeanor cases the capias or summons shall issue from a court having jurisdiction of the case.” V.A.C.C.P., Article 23.04 (in pertinent part). The statute leaves open the question of what showing must be made for the issuance of a capias in a misdemeanor ease, and the possibilities that the capias in a misdemeanor case may be issued only by the court, or by either the court or the clerk.
We must keep in mind the rule of statutory construction that when two interpretations are possible, one constitutional and the other not, the constitutionál interpretation must prevail. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968). There is no indication that the Legislature intended to authorize any of the unconstitutional procedures which we have discussed. We should avoid such unconstitutional procedures by our construction of the capias statutes.
If there is any indication of legislative intent, it is this: A capias may be issued by the court or clerk. V.A.C.C.P., Article 23.-01. In felony cases, the clerk shall issue the capias. V.A.C.C.P., Article 23.03(a). If the Legislature intended that the clerk also should issue automatically a capias in misdemeanor cases, there would have been no purpose in authorizing the court to issue a capias.
Therefore, we should hold that the capias statutes (V.A.C.C.P. chapter 23) do not authorize a clerk to issue a capias merely on the filing of a complaint and information which charge a misdemeanor offense; a neutral and detached magistrate who is competent to make the determination must determine from the complaint that there is probable cause to issue a capias for an arrest. The standard of probable cause must be the same as is required for a warrant of arrest. See Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).
We also should hold that it is a violation of the United States Constitution, Amendments IV and XIV, and the Texas Constitution, Article I, section 9, for a person to be arrested on the authority of a misdemeanor capias that issued without a determination of probable cause by a neutral and detached magistrate. Consequently, searches and seizures that are conducted incident to such arrests would be unconstitutional, and evidence obtained thereby might not be admit*509ted at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); V.A.C. C.P., Article 38.23.
The question of whether a county clerk (or his deputy) can act as a neutral and detached magistrate in determining probable cause2 is not before us, for no such action was attempted in this case. Also not before us is the question of whether a capi-as may issue in a misdemeanor case, without a determination of probable cause, to continue the confinement of a defendant who already has been arrested properly under V.A.C.C.P., chapter 14 or 15. The validity of the felony capias also is not questioned.3
Neither the majority opinion nor my opinion would affect the requisites of affidavits, complaints, and informations to support a prosecution. A misdemeanor conviction will not be reversed because no magistrate determined probable cause before the complaint and information were filed. Tarlton v. State, 578 S.W.2d 417 (Tex.Cr.App.1979). The standards of probable cause to issue a warrant are different from the standards of notice in a charging instrument. Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967).
I concur in the result.
. A felony indictment is assumed to be a conclusive showing of probable cause. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932). See Barnes v. State, 134 Tex.Crim. 461, 116 S.W.2d 408 (1938). Therefore, there is no need for a magistrate to determine probable cause. Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Gerstein v. Pugh, 420 U.S. 103, 117, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (dictum).
. See Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972).
. See footnote 1, supra.