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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.141 – Capital Waiver

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.141 – Brian Foley Board Certified in Criminal Law in Houston, Texas.

Today we are discussing Article 1.141 of the Texas Code of Criminal Procedure which covers waiver of indictments for noncapital felonies. The first thing we should discuss therefore is what is an indictment.

An indictment is the formal allegation or charging instrument in a felony case. Indictments are returned by grand juries. A grand jury is a group of 12 individuals from a particular community called together by a judge and appointed to the grand jury to review felony offense in that jurisdiction. For example, Harris County and the city of Houston have multiple grand juries that meet in downtown Houston multiple times per week. The Harris County District Attorney’s office has an entire division which presents cases to the grand jury for third-degree, state jail, and some second-degree felony offenses. Most offenses of sexual assault, aggravated robbery, murder and other serious crimes are taken to be reviewed by the grand jury by individual prosecutors assigned to district courts or specialty division in Harris County.

The grand jury process is secret and their deliberations are held without a record or the presence of the attorney for the State. When a case is presented to the Grand Jury a prosecutor may only go into the room and tell them about the facts of the case. Although they can bring witnesses, photos, and other evidence most prosecutors in Harris County do not do this. Additionally, it takes only 9 of the 12 votes in order to approve an indictment. When a grand jury approves an indictment, we call this a “true bill.” If the grand jury believes that there is not probable cause to believe a felony offense has taken place then a “no bill” is generated and the case is dismissed.

Before you may be convicted and go to trial on a felony offense in Texas you have an absolute right to have a grand jury review the charge and either true bill or no bill the case. Article 1.141 allows a criminal defendant to waive this process under three conditions.

1. The person waiving the right to indictment must be represented by legal counsel

2. The waiver of the right to indictment must be made in open court,

3. The waiver must be voluntary.

This happens frequently when someone wants to plead guilty prior to an indictment being returned. This may be because a deal was reached with the prosecutor and a one-time offer is made for leniency prior to indictment. Sometimes prosecutors do this to avoid having to needlessly work on a case that appears will plead eventually so that they can focus on more serious offenses.

When you waive the right to indictment the charge is filed with the court as an “information.” An information is identical to an indictment but is signed by a prosecutor and not a member of the grand jury. A prosecutor may not proceed to trial on an information alone if the defendant has not waived his right to indictment. At least that is true for felony offenses. In Texas a Misdemeanor can be indicted by a grand jury, but it is very very rare. The law allows a misdemeanor offense to be charged and a contested trial to take place without grand jury review for misdemeanor cases. Misdemeanors are traffic tickets, DWIs, Theft offenses, resisting arrest, and many others. The maximum punishment for misdemeanors are Class A misdemeanors which have a possible penalty of 1 year in jail and up to a $4000 fine.

Art. 1.141. WAIVER OF INDICTMENT FOR NONCAPITAL FELONY. A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information. Added by Acts 1971, 62nd Leg., p. 1148, ch. 260, Sec. 1, eff. May 19, 1971.

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