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Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Art. 1.23

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

Article 1.23 of the Texas Code of Criminal Procedure is titled "Dignity of the State." And no it doesn't relate to the clothes worn by prosecutors to preserve their dignity. It doesn't really stand for much of anything other than the rule that an information and an indictment must begin with the words, "In the name and by authority of the State of Texas and end with "against the peace and dignity of the State."

An information is the official charging document that is required to charge someone with a misdemeanor offense. It is prepared and signed by prosecutor. It does not require a trip to the grand jury. That is reserved for felony cases which require an indictment to proceed to trial.

You may waive your right to indictment and proceed on a felony case by information but typically felonies are indicted. Each indictment starts with the words, "in the name and by authority of the State of Texas" followed by the language of the offense itself and then again concluding "against the peace and dignity of the State."

"The courts have held that the failure of a charging instrument to contain either of the constitutionally required phrases 'In the name and by authority of the State of Texas' or 'Against the peace and dignity of the State' constitutes a fundamental defect. SeeJones v. State, 622 S.W.2d 109 (Tex.Crim.App. 1981) and Ex parte Warnell, 606 S.W.2d 923 (Tex.Crim.App. 1980). Studer v. State, 799 S.W.2d 263, 281 (Tex. Crim. App. 1990)

But if you make an error with this you may be found to be in compliance since Jenkins v. State. "We conclude, therefore, that, although defective under article 21.02, the indictment nevertheless (1) charges a person (2) with committing an offense, and thus vested the trial court with both personal and subject-matter jurisdiction.” Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018). In Jenkins the name of the defendant was omitted.

Article 1.14 (b) holds that a defendant that does not make an objection to an indictment or information prior to the day of trial waives that objection. "If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post-conviction proceeding." Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018).

Also, if you have been following the blog posts and are asking yourself, "What happened to Article 1.22?" There is no such article in the Texas Code of Criminal Procedure. We didn't skip it. ; ) It used to be the following:

Art. 1.22. Privilege of Voters Voters shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during their attendance at elections, and in going to and returning therefrom. [Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.] (Now repealed).

Art. 1.23. DIGNITY OF STATE. All justices of the Supreme Court, judges of the Court of Criminal Appeals, justices of the Courts of Appeals and judges of the District Courts, shall, by virtue of their offices, be conservators of the peace throughout the State. The style of all writs and process shall be "The State of Texas". All prosecutions shall be carried on "in the name and by authority of The State of Texas", and conclude, "against the peace and dignity of the State". Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1981, 67th Leg., p. 801, ch. 291, Sec. 97, eff. Sept. 1, 1981.

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