Honorable George W. Miller Opinion No. M-900 

District Attorney 

110th Judicial District 

101 North Main Street 

Floydada, Texas 79235 

Re: 

Dear Mr. Miller: 

Constitutionality of 

waiver of indictment for 

non-capital felony cases 

as contained in Senate 

Bill No. 116, 62nd Legislature, R. S., 1971. 

You have requested the opinion of this office as to 

whether Senate Bill No. 116, 62nd Legislature, R. S., 1971, 

providing for waiver of indictment in non-capital felony 

cases is constitutional in view of Article 1, Section 10 of 

the Constitution of the State of Texas. Senate Bill No. 116 

amends Vernon's Code of Criminal Procedure by adding a new 

Article 1.141 to read as follows: 

"Article 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." 

Article 1, Section 10 of the Constitution provides in 

part: 

II . . . No person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, 

except in cases in which the punishment is by fine 

or imprisonment, otherwise than in the penitentiary, . . ." 

It will be observed that Senate Bill 116 is similar in 

effect to Rule 7, subsections (a) and (b), of the Federal Rules 

of Criminal Procedure, which provide that a defendant may waive 

indictment and be prosecuted by information in a non-capital 

offense. In Barkman v. Sanford, 162 F.2d 592 (5th Cir. 19471, 

-4387- 
. . 

Honorable George W. Miller, page 2 (M-900) 

the question presented was whether Rule 7, subsections (a) and 

(b), violated the provision of the Fifth Amendment of the United 

States Constitution stating that: 

"NO person shall be held to answer for a capital, 

or otherwise infamous crime, unless on a presentment 

or indictment of a Grand Jury, . . ." 

The Fifth, Circuit held,that Rule 7, subsections (a) and (b) was 

constitutional because the constitutional provision was designed 

to confer a right or privilege upon the person, and the right or 

privilege could be waived. The court stated, 

II . . . It seems thoroughly established that an 

intelligent accused may waive any constitutional 

right that is in the nature of a privilege to him, 

or that is for his personal protection or benefit." 

(at p. 594). 

In Smith v. United States,, 360 U.S. 1, 6, 79 S.Ct. 991, 3 

L.Ed.2d 1041 (1958) the Supreme Court, citing 'the Barkman case 

as authority, held ;hat the United States constitutmuaranty 

of grand jury indictment can be waived by an accused. In-accord; 

Antieau, Modern Constitutional Law, Vol. 1, p. 298, Sec. 5:12, and 

cases cited. qi 

It is also observed that other rights of an accused provided 

in Article 1, Section 10 of the Texas Constitution have been held 

subject to waiver. Thus. waiver of iurv trial in felonv cases 

tional ri! 

less than capital has been held not Gioiative of the co&.titught to trial by jury. McMillan v. State, 57 S.W.2d 125 

_ ,. _,. _ ~.. W.2d~574 (Tex.Crim. 

1 of a crime to be confronted 

(Tex.Crim. 19333,~. In Garcia v. State, 210 S. '. 1948). the right of a person accuse< 

by witnesses against him was held to be subject to waiver. The 

privilege against self-incrimination may also be waived. 

v. State, 4.8~ S.W.Zd 632 (Tex.Crim. 1932). The defense of E&e 

jeopardy and the right to counsel can be waived. See Antieau, 

Modern Constitutional Law, Vol.~ 1, pp..317, 330, Sects. 5:35 and 

5:44, and authorities there set out. 

- SUMMARY - - - - -.-. 

Senate Bill 116, 62nd Legislature, R.S., 1971, 

providing for the waiver of indictment in noncapital felony cases is constitutional. 

-4388- 
. 

Honorable George W. Miller, page 3 (M-900- 

Vepl truly yoyrs, 

Prepared ~by Dunklin Sullivan 

Assistant Attorney,General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Max Flusche 

Jack Sparks 

Sally Phillips 

John Banks 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-4389 -