Tuesday, May 7, 2013

Pleading When Information Not Filed

San Jacinto Constitutional Study Group
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Pleading When Information Not Filed

Below, you will find codes that the court judges don’t want you to know. They just say they are proceeding under statute law but fail to let you know which one. The Texas Constitution states in Article 1, Sec. 10, the accused is entitled to know the Nature and Cause of the accusation against him/her and have a copy thereof. This ‘copy thereof’ should be the Information that should be filed in court to give the court jurisdiction to hear your misdemeanor criminal case. This document is based on the lack of subject matter jurisdiction of the court because of a document called ‘Information’, that is never or very rarely ever filed in a Texas Court. There are plenty of procedures indicating that the filing of an information is required under Texas Law, but it is very rare that a defendant will ever see one.

In the Texas Constitution it states that a criminal charge must have an ‘Indictment’ or ‘Information’ filed in court to give the court jurisdiction to hear the case as per Article 5, Section 12(b). This is on the condition what the Grand Jury finds under Article 5, Section 17.

Article 5

(a) All judges of courts of this State, by virtue of their office, are conservators of the peace throughout the State.
(b)  An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense.  An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense.  The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law.  The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.  (Amended Aug. 11, 1891, and Nov. 5, 1985.)

Article 5
Sec. 17.  TERMS OF COUNTY COURT; PROSECUTIONS; JURIES.  The County Court shall hold terms as provided by law.  Prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law.  Grand juries empaneled in the District Courts shall inquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Courts or other inferior courts, having jurisdiction to try them for trial; and if such indictment be quashed in the County, or other inferior court, the person charged, shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.  A jury in the County Court shall consist of six persons; but no jury shall be empaneled to try a civil case unless demanded by one of the parties, who shall pay such jury fee therefor, in advance, as may be prescribed by law, unless the party makes affidavit that the party is unable to pay the jury fee. 
(Amended Nov. 5, 1985, and Nov. 6, 2001.)  (TEMPORARY TRANSITION PROVISION for Sec. 17: See Appendix, Note 3.)

APPENDIX.  Notes on Temporary Provisions for Adopted Amendments
3.  H.J.R. No. 75, Section 9.01, 77th Legislature, Regular Session, 2001.
Temporary Transition Provision.  (a) This section applies to the amendments to this constitution proposed by H.J.R. No. 75, 77th Legislature, Regular Session, 2001.
(b)  The reenactment of any provision of this constitution for purposes of amendment does not revive a provision that may have been impliedly repealed by the adoption of a later amendment.
(c)  The amendment of any provision of this constitution does not affect vested rights.

The Texas Code of Criminal Procedures states how ‘an information’ is created and filed in court.

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.

Art. 2.05. [29] [35] [36] When complaint is made
If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction;  provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case.  If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county.

Art. 12.02. [181] [229] [219] Misdemeanors
An indictment or information for any misdemeanor may be presented within two years from the date of the  commission of the offense, and not afterward. (before 2009)
(After 2009)(a)  An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
(b)  A complaint or information for any Class C misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
{For some reason the Texas Legislature tries to change the Texas Constitution by legislation to allow a complaint to give jurisdiction, which it can’t. That is why they left in the ‘information’ provision.}

Art. 12.07. [185] [233] [223] An information is "presented," when
An information is considered as "presented," when it has been filed by the proper officer in the proper court.

Art. 13.16. Criminal nonsupport
Criminal nonsupport may be prosecuted in the county where the offended spouse or child is residing at the time the information or indictment is presented.

Art. 21.20. [413] [477] [465] "Information"
An "information" is a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted.

Art. 21.21. [414] [478] [466] Requisites of an information
An information is sufficient if it has the following requisites:
9. It must be signed by the district or county attorney, officially.

Art. 21.22. [415] [479] [467] Information based upon complaint
No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.  The affidavit shall be filed with the information.  It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.

Art. 21.23. [416] [480] [468] Rules as to indictment apply to information
The rules with respect to allegations in an indictment and the certainty required apply also to an information.

Art. 22.13. [436] [500] [488] Causes which will exonerate
The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.

Art. 25.04. [490] [554] [543] In misdemeanor
In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy of the indictment or information;  but he or his counsel may demand a copy, which shall be given as early as possible.

Art. 27.01. [504] [568] [557] Indictment or information
The primary pleading in a criminal action on the part of the State is the indictment or information.

We finally get to the primary part of this document, the pleading. As you see below the Texas Government Code indicates that the courts will go by the Texas Code of Criminal Procedure. As you see above the pleading is based on an information filed by the prosecutor. Below, Article 27.02 indicates that a Motion to Set Aside or a Bill of Exceptions should be filed in court when there is a problem with the form or substance of the indictment or information. But what if the prosecutor fails to file an information in the court? Does it seem that a Motion to Dismiss is in order for lack of subject matter jurisdiction?

Government Code

Sec. 30.000126. Complaint;  Pleading
Complaints and pleadings must substantially conform to the relevant provisions of Chapters 27 and 45, Code of Criminal Procedure.

Texas Code of Criminal Procedure
Art. 27.02. [505] [569] [558] Defendant's pleadings
The pleadings and motions of the defendant shall be:
(1) A motion to set aside or an exception to an indictment or information for some matter of form or substance;
(8) Any other motions or pleadings that are by law permitted to be filed.

Art. 27.03. [506] [570] [559] Motion to set aside indictment
In addition to any other grounds authorized by law, a motion to set aside an indictment or information may be based on the following:
     1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint;

Art. 27.16. [520] [584] [573] Plea of not guilty, how made
     (a) The plea of not guilty may be made orally by the defendant or by his counsel in open court.  If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court.
     (b) A defendant charged with a misdemeanor for which the maximum possible punishment is by fine only may, in lieu of the method provided in Subsection (a) of this article, mail to the court a plea of not guilty.

Art. 27.17. [521] [585] [574] Plea of not guilty construed
The plea of not guilty shall be construed to be a denial of every material allegation in the indictment or information.  Under this plea, evidence to establish the insanity of defendant, and every fact whatever tending to acquit him of the accusation may be introduced, except such facts as are proper for a special plea under Article 27.05.

As you see above in Art. 27.17, you are required to file a Motion to Dismiss because your plea of not guilty will be construed to deny every allegation in the information that was filed. How could you plead to something that don’t exist? If the judge denies your motion, you have no other choice but to file a Motion for an Interlocutory Appeal because your procedural rights are being violated and you need a legal determination whether the inferior court must abide by the Texas Code of Criminal Procedure. What do you think?

Many people associated with the San Jacinto Constitutional Study Group are credited with discovering the information that is found here.

Article by: Bobie Kenneth Townsend

Member of the San Jacinto Constitutional Study Group (2013)
Conroe, Texas -  Chapter

All information found in this article will not be considered as legal advice. All Information should be verified by the reader. Permission to copy is granted. The truth should always spread.


The Unknowing Are Slaves To Liars

(Charles Barnum)

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