HonorableGeorge W. Miller Opinion No. M-900

DistrictAttorney 110th Judicial District 101North Main Street Floydada, Texas 79235 Re:

Dear Mr. Miller: Constitutionalityof 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 forwaiver 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 amendsVernon's Code of Criminal Procedureby adding a new Article 1.141 to read as follows:

"Article 1.141 WAIVER OF INDICTMENTFOR NONCAPITAL FELONY "Aperson representedby legal counselmay in open court or by written instrumentvoluntarilywaive the right to be accused by indictmentof 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 Constitutionprovides in part: II

. . .No person shallbe 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 defendantmay waive indictmentand be prosecuted by information in a non-capital offense. In Barkmanv. Sanford, 162 F.2d 592 (5thCir. 19471, -4387-. .

HonorableGeorge W. Miller, page 2 (M-900)

the question presentedwas whether Rule 7, subsections (a)and (b),violated the provision of the FifthAmendment of the United States Constitution stating that:

"NOperson 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 constitutionalbecause the constitutionalprovisionwas 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 intelligentaccusedmay waive any constitutional right that is in the nature of a privilege to him, or that is for his personal protection or benefit." (atp. 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 'theBarkman case as authority,held ;hat the United States constitutmuaranty of grand jury indictment can be waived by an accused. In-accord; Antieau, Modern ConstitutionalLaw, Vol. 1, p. 298, Sec. 5:12, and cases cited. qi It is also observed that other rights of an accused provided inArticle 1, Section 10 of the Texas Constitutionhave 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.

_ ,. _,. _ ~.. 1of 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-incriminationmay 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 ConstitutionalLaw, 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 thewaiver of indictment in noncapital felony cases is constitutional.

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

Vepl truly yoyrs,

Prepared~byDunklin Sullivan AssistantAttorney,General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Max Flusche Jack Sparks Sally Phillips John Banks MEADE F. GRIFFIN Staff LegalAssistant ALFRED WALKER ExecutiveAssistant NOLA WHITE FirstAssistant

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