San Jacinto Constitutional Study
Group
Eastern Div. Western Div. Southern Div. Northern Div.
Civil Rights Investigators
P.O.Box 1697 6763 Hwy
6 South P.O.Box 982 1504
Memorial Ln. Court Watchers
Channelview,
Texas 1100-120 Alvin,
Texas Conroe, Texas
TPZ [77530]
Houston,
Texas TPZ
[77511] TPZ [77304]
TPZ [77083]
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
Sec. 12. JUDGES TO
BE CONSERVATORS OF THE PEACE; INDICTMENTS AND
INFORMATION.
(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.)
THE TEXAS CONSTITUTION
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
CHAPTER
TWENTY SEVEN THE PLEADING IN CRIMINAL ACTIONS
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
ktownsend@gmail.com
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.
Remember
The Unknowing Are Slaves To Liars
(Charles Barnum)
No comments:
Post a Comment