Honorable George W. Miller      Opinion No. M-900
District Attorney
110th Judicial District          Re:   Constitutionality of
101 North Main Street                  waiver of indictment for
Floydada, Texas 79235                  non-capital felony cases
                                       as contained in Senate
                                       Bill No. 116, 62nd Legis-
Dear Mr. Miller:                       lature, 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 crimi-
     nal 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 qi
       cited.
     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
less than capital has been held not Gioiative of the co&.titu-
tional ri!ght to trial by jury. McMillan v. State, 57 S.W.2d 125
(Tex.Crim. 19333,~. In Garcia v. State,
                                    _ ,. 210
                                       _,.   S.W.2d~574 (Tex.Crim.
                                         _ ~..
             '.                     1 of  a crime to be confronted
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 non-
     capital 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   -
