CHAPTER 21. INDICTMENT AND INFORMATION - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 21. INDICTMENT AND INFORMATION

Art. 21.01. "INDICTMENT". An "indictment" is the written

statement of a grand jury accusing a person therein named of some

act or omission which, by law, is declared to be an offense.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.011. FILING OF CHARGING INSTRUMENT OR RELATED DOCUMENT

IN ELECTRONIC FORM. (a) An indictment, information, complaint,

or other charging instrument or a related document in a criminal

case may be filed in electronic form with a judge or clerk of the

court authorized to receive the document.

(b) A judge or clerk of the court is authorized to receive for

filing purposes an information, indictment, complaint, or other

charging instrument or a related document in electronic form in

accordance with Subchapter I, Chapter 51, Government Code, if:

(1) the document complies with the requirements that would apply

if the document were filed in hard-copy form;

(2) the clerk of the court has the means to electronically store

the document for the statutory period of record retention;

(3) the judge or clerk of the court is able to reproduce the

document in hard-copy form on demand; and

(4) the clerk of the court is able to display or otherwise make

the document available in electronic form to the public at no

charge.

(c) The person filing the document and the person receiving the

document must complete the electronic filing as provided by

Section 51.804, Government Code.

(d) Notwithstanding Section 51.806, Government Code, an

indictment, information, complaint, or other charging instrument

or a related document transmitted in electronic form is exempt

from a requirement under this code that the pleading be endorsed

by a natural person. The requirement of an oath under this code

is satisfied if:

(1) all or part of the document was sworn to; and

(2) the electronic form states which parts of the document were

sworn to and the name of the officer administering the oath.

(e) An electronically filed document described by this section

may be amended or modified in compliance with Chapter 28 or other

applicable law. The amended or modified document must reflect

that the original document has been superseded.

(f) This section does not affect the application of Section

51.318, Government Code, Section 118.052(3), Local Government

Code, or any other law permitting the collection of fees for the

provision of services related to court documents.

Added by Acts 2005, 79th Leg., Ch.

312, Sec. 3, eff. June 17, 2005.

Art. 21.02. REQUISITES OF AN INDICTMENT. An indictment shall be

deemed sufficient if it has the following requisites:

1. It shall commence, "In the name and by authority of The State

of Texas".

2. It must appear that the same was presented in the district

court of the county where the grand jury is in session.

3. It must appear to be the act of a grand jury of the proper

county.

4. It must contain the name of the accused, or state that his

name is unknown and give a reasonably accurate description of

him.

5. It must show that the place where the offense was committed is

within the jurisdiction of the court in which the indictment is

presented.

6. The time mentioned must be some date anterior to the

presentment of the indictment, and not so remote that the

prosecution of the offense is barred by limitation.

7. The offense must be set forth in plain and intelligible words.

8. The indictment must conclude, "Against the peace and dignity

of the State".

9. It shall be signed officially by the foreman of the grand

jury.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.03. WHAT SHOULD BE STATED. Everything should be stated

in an indictment which is necessary to be proved.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.04. THE CERTAINTY REQUIRED. The certainty required in an

indictment is such as will enable the accused to plead the

judgment that may be given upon it in bar of any prosecution for

the same offense.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.05. PARTICULAR INTENT; INTENT TO DEFRAUD. Where a

particular intent is a material fact in the description of the

offense, it must be stated in the indictment; but in any case

where an intent to defraud is required to constitute an offense,

it shall be sufficient to allege an intent to defraud, without

naming therein the particular person intended to be defrauded.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.06. ALLEGATION OF VENUE. When the offense may be

prosecuted in either of two or more counties, the indictment may

allege the offense to have been committed in the county where the

same is prosecuted, or in any county or place where the offense

was actually committed.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.07. ALLEGATION OF NAME. In alleging the name of the

defendant, or of any other person necessary to be stated in the

indictment, it shall be sufficient to state one or more of the

initials of the given name and the surname. When a person is

known by two or more names, it shall be sufficient to state

either name. When the name of the person is unknown to the grand

jury, that fact shall be stated, and if it be the accused, a

reasonably accurate description of him shall be given in the

indictment.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1995, 74th Leg., ch. 830, Sec. 1, eff. Sept. 1,

1995.

Art. 21.08. ALLEGATION OF OWNERSHIP. Where one person owns the

property, and another person has the possession of the same, the

ownership thereof may be alleged to be in either. Where property

is owned in common, or jointly, by two or more persons, the

ownership may be alleged to be in all or either of them. When the

property belongs to the estate of a deceased person, the

ownership may be alleged to be in the executor, administrator or

heirs of such deceased person, or in any one of such heirs. Where

the ownership of the property is unknown to the grand jury, it

shall be sufficient to allege that fact.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1967, 60th Leg., p. 1738, ch. 659, Sec. 16, eff.

Aug. 28, 1967.

Art. 21.09. DESCRIPTION OF PROPERTY. If known, personal property

alleged in an indictment shall be identified by name, kind,

number, and ownership. When such is unknown, that fact shall be

stated, and a general classification, describing and identifying

the property as near as may be, shall suffice. If the property be

real estate, its general locality in the county, and the name of

the owner, occupant or claimant thereof, shall be a sufficient

description of the same.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 2, eff.

June 19, 1975.

Art. 21.10. "FELONIOUS" AND "FELONIOUSLY". It is not necessary

to use the words "Felonious" or "feloniously" in any indictment.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.11. CERTAINTY; WHAT SUFFICIENT. An indictment shall be

deemed sufficient which charges the commission of the offense in

ordinary and concise language in such a manner as to enable a

person of common understanding to know what is meant, and with

that degree of certainty that will give the defendant notice of

the particular offense with which he is charged, and enable the

court, on conviction, to pronounce the proper judgment; and in no

case are the words "force and arms" or "contrary to the form of

the statute" necessary.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.12. SPECIAL AND GENERAL TERMS. When a statute defining

any offense uses special or particular terms, indictment on it

may use the general term which, in common language, embraces the

special term. To charge an unlawful sale, it is necessary to name

the purchaser.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.13. ACT WITH INTENT TO COMMIT AN OFFENSE. An indictment

for an act done with intent to commit some other offense may

charge in general terms the commission of such act with intent to

commit such other offense.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.14. PERJURY AND AGGRAVATED PERJURY. (a) An indictment

for perjury or aggravated perjury need not charge the precise

language of the false statement, but may state the substance of

the same, and no such indictment shall be held insufficient on

account of any variance which does not affect the subject matter

or general import of such false statement; and it is not

necessary in such indictment to set forth the pleadings, records

or proceeding with which the false statement is connected, nor

the commission or authority of the court or person before whom

the false statement was made; but it is sufficient to state the

name of the court or public servant by whom the oath was

administered with the allegation of the falsity of the matter on

which the perjury or aggravated perjury is assigned.

(b) If an individual is charged with aggravated perjury before a

grand jury, the indictment may not be entered by the grand jury

before which the false statement was alleged to have been made.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A), eff.

Jan. 1, 1974.

Amended by Acts 1989, 71st Leg., ch. 1065, Sec. 5, eff. Sept. 1,

1989.

Art. 21.15. MUST ALLEGE ACTS OF RECKLESSNESS OR CRIMINAL

NEGLIGENCE. Whenever recklessness or criminal negligence enters

into or is a part or element of any offense, or it is charged

that the accused acted recklessly or with criminal negligence in

the commission of an offense, the complaint, information, or

indictment in order to be sufficient in any such case must

allege, with reasonable certainty, the act or acts relied upon to

constitute recklessness or criminal negligence, and in no event

shall it be sufficient to allege merely that the accused, in

committing the offense, acted recklessly or with criminal

negligence.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A), eff.

Jan. 1, 1974.

Art. 21.16. CERTAIN FORMS OF INDICTMENTS. The following form of

indictments is sufficient:

""In the name and by authority of the State of Texas: The grand

jury of ............ County, State of Texas, duly organized at

the ............ term, A.D. ............, of the district court

of said county, in said court at said term, do present that

............ (defendant) on the .......... day of ............

A.D. ............, in said county and State, did ............

(description of offense) against the peace and dignity of the

State.

............, Foreman of the grand jury."

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.17. FOLLOWING STATUTORY WORDS. Words used in a statute

to define an offense need not be strictly pursued in the

indictment; it is sufficient to use other words conveying the

same meaning, or which include the sense of the statutory words.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.18. MATTERS OF JUDICIAL NOTICE. Presumptions of law and

matters of which judicial notice is taken (among which are

included the authority and duties of all officers elected or

appointed under the General Laws of this State) need not be

stated in an indictment.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.19. DEFECTS OF FORM. An indictment shall not be held

insufficient, nor shall the trial, judgment or other proceedings

thereon be affected, by reason of any defect of form which does

not prejudice the substantial rights of the defendant.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.20. "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.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.21. REQUISITES OF AN INFORMATION. An information is

sufficient if it has the following requisites:

1. It shall commence, "In the name and by authority of the State

of Texas";

2. That it appear to have been presented in a court having

jurisdiction of the offense set forth;

3. That it appear to have been presented by the proper officer;

4. That it contain the name of the accused, or state that his

name is unknown and give a reasonably accurate description of

him;

5. It must appear that the place where the offense is charged to

have been committed is within the jurisdiction of the court where

the information is filed;

6. That the time mentioned be some date anterior to the filing of

the information, and that the offense does not appear to be

barred by limitation;

7. That the offense be set forth in plain and intelligible words;

8. That it conclude, "Against the peace and dignity of the

State"; and

9. It must be signed by the district or county attorney,

officially.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.22. 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.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.23. 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.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.24. JOINDER OF CERTAIN OFFENSES. (a) Two or more

offenses may be joined in a single indictment, information, or

complaint, with each offense stated in a separate count, if the

offenses arise out of the same criminal episode, as defined in

Chapter 3 of the Penal Code.

(b) A count may contain as many separate paragraphs charging the

same offense as necessary, but no paragraph may charge more than

one offense.

(c) A count is sufficient if any one of its paragraphs is

sufficient. An indictment, information, or complaint is

sufficient if any one of its counts is sufficient.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Amended by Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A), eff.

Jan. 1, 1974.

Art. 21.25. WHEN INDICTMENT HAS BEEN LOST, ETC. When an

indictment or information has been lost, mislaid, mutilated or

obliterated, the district or county attorney may suggest the fact

to the court; and the same shall be entered upon the minutes of

the court. In such case, another indictment or information may be

substituted, upon the written statement of such attorney that it

is substantially the same as that which has been lost, mislaid,

mutilated, or obliterated. Or another indictment may be

presented, as in the first instance; and in such case, the period

for the commencement of the prosecution shall be dated from the

time of making such entry.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.26. ORDER TRANSFERRING CASES. Upon the filing of an

indictment in the district court which charges an offense over

which such court has no jurisdiction, the judge of such court

shall make an order transferring the same to such inferior court

as may have jurisdiction, stating in such order the cause

transferred and to what court transferred.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.27. CAUSES TRANSFERRED TO JUSTICE COURT. Causes over

which justices of the peace have jurisdiction may be transferred

to a justice of the peace at the county seat, or in the

discretion of the judge, to a justice of the precinct in which

the same can be most conveniently tried, as may appear by

memorandum endorsed by the grand jury on the indictment or

otherwise. If it appears to the judge that the offense has been

committed in any incorporated town or city, the cause shall be

transferred to a justice in said town or city, if there be one

therein; and any justice to whom such cause may be transferred

shall have jurisdiction to try the same.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.28. DUTY ON TRANSFER. The clerk of the court, without

delay, shall deliver the indictments in all cases transferred,

together with all the papers relating to each case, to the proper

court or justice, as directed in the order of transfer; and shall

accompany each case with a certified copy of all the proceedings

taken therein in the district court, and with a bill of the costs

that have accrued therein in the district court. The said costs

shall be taxed in the court in which said cause is tried, in the

event of a conviction.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.29. PROCEEDINGS OF INFERIOR COURT. Any case so

transferred shall be entered on the docket of the court to which

it is transferred. All process thereon shall be issued and the

defendant tried as if the case had originated in the court to

which it was transferred.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.30. CAUSE IMPROVIDENTLY TRANSFERRED. When a cause has

been improvidently transferred to a court which has no

jurisdiction of the same, the court to which it has been

transferred shall order it to be re-transferred to the proper

court; and the same proceedings shall be had as in the case of

the original transfer. In such case, the defendant and the

witnesses shall be held bound to appear before the court to which

the case has been re-transferred, the same as they were bound to

appear before the court so transferring the same.

Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.

Art. 21.31. TESTING FOR AIDS AND CERTAIN OTHER DISEASES. (a) A

person who is indicted for or who waives indictment for an

offense under Section 21.02, 21.11(a)(1), 22.011, or 22.021,

Penal Code, shall, at the direction of the court on the court's

own motion or on the request of the victim of the alleged

offense, undergo a standard diagnostic test approved by the

United States Food and Drug Administration for human

immunodeficiency virus (HIV) infection and other sexually

transmitted diseases. If the person refuses to submit

voluntarily to the test, the court shall require the person to

submit to the test. On request of the victim of the alleged

offense, the court shall order the defendant to undergo the test

not later than 48 hours after an indictment for the offense is

presented against the defendant or the defendant waives

indictment. Except as provided by Subsection (b-1), the court

may require a defendant previously required under this article to

undergo a diagnostic test on indictment for an offense to undergo

a subsequent test only after conviction of the offense. A person

performing a test under this subsection shall make the test

results available to the local health authority, and the local

health authority shall be required to make the notification of

the test results to the victim of the alleged offense and to the

defendant.

(a-1) If the victim requests the testing of the defendant and a

law enforcement agency is unable to locate the defendant during

the 48-hour period allowed for that testing under Subsection (a),

the running of the 48-hour period is tolled until the law

enforcement agency locates the defendant and the defendant is

present in the jurisdiction.

(b) The court shall order a person who is charged with an

offense under Section 22.11, Penal Code, to undergo in the manner

provided by Subsection (a) a diagnostic test designed to show or

help show whether the person has HIV, hepatitis A, hepatitis B,

tuberculosis, or any other disease designated as a reportable

disease under Section 81.048, Health and Safety Code. The person

charged with the offense shall pay the costs of testing under

this subsection.

(b-1) If the results of a diagnostic test conducted under

Subsection (a) or (b) are positive for HIV, the court shall order

the defendant to undergo any necessary additional testing within

a reasonable time after the test results are released.

(c) The state may not use the fact that a test was performed on

a person under Subsection (a) or use the results of a test

conducted under Subsection (a) in any criminal proceeding arising

out of the alleged offense.

(d) Testing under this article shall be conducted in accordance

with written infectious disease control protocols adopted by the

Texas Board of Health that clearly establish procedural

guidelines that provide criteria for testing and that respect the

rights of the person accused and any victim of the alleged

offense.

(e) This article does not permit a court to release a test

result to anyone other than those authorized by law, and the

provisions of Section 81.103(d), Health and Safety Code, may not

be construed to allow that disclosure.

Acts 1987, 70th Leg., 2nd C.S., ch. 55, Sec. 3, eff. Oct. 20,

1987.

Subsec. (c) amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(7),

eff. Sept. 1, 1991; Subsec. (a) amended by Acts 1993, 73rd Leg.,

ch. 811, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2005, 79th Leg., Ch.

543, Sec. 3, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.12, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

418, Sec. 1, eff. September 1, 2009.