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CODE OF CRIMINAL PROCEDURE CHAPTER 21.
INDICTMENT AND INFORMATION
Art. 21.01. [395] [450] [438] "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. 21.02. [396] [451] [439] 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. [397] [452] [440] 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. [398] [453] [441] 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. [399] [454] [442] 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. [400] [455] [443] 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. [401] [456] [444] 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. [402] [457] [445] 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. [403] [458] [446] 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. [404] [459] [447] "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. [405] [460] [448] 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. [406] [461] [449] 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. [407] [463] [451] 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. [408] [465] [453] 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. [408a] 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. [409] [470] [458] 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. [410] [474] [462] 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. [411] [475] [463] 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. [412] [476] [464] 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. [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.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 21.21. [414] [478] [466] 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. [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.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
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.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 21.24. [417; 408a] [481] [469] 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. [418] [481] [470] 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. [419] [483] [471] 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. [420] [484] [472] 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. [421] [485] [473] 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. [422] [486] [474] 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. [423] [487] [475] 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. AIDS testing
(a) A person who is indicted for or who waives indictment for an
offense under Section 21.11(a)(1), 22.011, or 22.021, Penal Code,
shall, at the direction of the court, undergo a medical procedure or
test designed to show or help show whether the person has a sexually
transmitted disease or has acquired immune deficiency syndrome
(AIDS) or human immunodeficiency virus (HIV) infection, antibodies
to HIV, or infection with any other probable causative agent of
AIDS. The court may direct the person to undergo the procedure or
test on its own motion or on the request of the victim of the alleged
offense. If the person refuses to submit voluntarily to the
procedure or test, the court shall require the person to submit to
the procedure or test. The court may require a defendant previously
required under this article to undergo a medical procedure or test
on indictment for an offense to undergo a subsequent medical
procedure or test following conviction of the offense. The person
performing the procedure or test 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
result to the victim of the alleged offense and to the defendant.
The state may not use the fact that a medical procedure or test was
performed on a person under this subsection or use the results of
the procedure or test in any criminal proceeding arising out of the
alleged offense.
(b) Testing under this section 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 the victims of the alleged offense.
(c) Nothing in this section would allow a court to release a test
result to anyone other than those specifically authorized by this
law and the provisions of Section 81.103(d), Health and Safety
Code, shall not be construed to allow such 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.
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