By Talton                                       H.B. No. 1863

      75R7788 GWK-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the waiver of a defect in a criminal charging

 1-3     instrument.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Article 1.14(b), Code of Criminal Procedure, is

 1-6     amended to read as follows:

 1-7           (b)  If the defendant does not object to a defect, error, or

 1-8     irregularity of form or substance in a charging instrument [an

 1-9     indictment or information] before the date on which the trial on

1-10     the merits commences, he waives and forfeits the right to object to

1-11     the defect, error, or irregularity and he may not raise the

1-12     objection on appeal or in any other postconviction proceeding.

1-13     Nothing in this article prohibits a trial court from requiring that

1-14     an objection to a charging instrument [an indictment or

1-15     information] be made at an earlier time in compliance with Article

1-16     28.01  of this code.

1-17           SECTION 2.  Section 1, Article 28.01, Code of Criminal

1-18     Procedure, is amended to read as follows:

1-19           Sec. 1.   The court may set any criminal case for a pre-trial

1-20     hearing before it is set for trial upon its merits, and direct the

1-21     defendant and his attorney, if any of record, and the State's

1-22     attorney, to appear before the court at the time and place stated

1-23     in the court's order for a conference and hearing.  The defendant

1-24     must be present at the arraignment, and his presence is required

 2-1     during any pre-trial proceeding.  The pre-trial hearing shall be to

 2-2     determine any of the following matters:

 2-3                 (1)  Arraignment of the defendant, if such be

 2-4     necessary;  and appointment of counsel to represent the defendant,

 2-5     if such be necessary;

 2-6                 (2)  Pleadings of the defendant;

 2-7                 (3)  Special pleas, if any;

 2-8                 (4)  Exceptions to the form or substance of the

 2-9     charging instrument [indictment or information];

2-10                 (5)  Motions for continuance either by the State or

2-11     defendant;  provided that grounds for continuance not existing or

2-12     not known at the time may be presented and considered at any time

2-13     before the defendant announces ready for trial;

2-14                 (6)  Motions to suppress evidence--When a hearing on

2-15     the motion to suppress evidence is granted, the court may determine

2-16     the merits of said motion on the motions themselves, or upon

2-17     opposing affidavits, or upon oral testimony, subject to the

2-18     discretion of the court;

2-19                 (7)  Motions for change of venue by the State or the

2-20     defendant;  provided, however, that such motions for change of

2-21     venue, if overruled at the pre-trial hearing, may be renewed by the

2-22     State or the defendant during the voir dire examination of the

2-23     jury;

2-24                 (8)  Discovery;

2-25                 (9)  Entrapment; and

2-26                 (10)  Motion for appointment of interpreter.

2-27           SECTION 3.  The change in law made by this Act applies only

 3-1     to the waiver of a defect in a charging instrument that is returned

 3-2     or filed on or after the effective date of this Act. The waiver of

 3-3     a defect in a charging instrument returned or filed before the

 3-4     effective date of this Act is covered by the law in effect when the

 3-5     charging instrument was returned or filed, and the former law is

 3-6     continued in effect for that purpose.

 3-7           SECTION 4.  This Act takes effect September 1, 1997.

 3-8           SECTION 5.  The importance of this legislation and the

 3-9     crowded condition of the calendars in both houses create an

3-10     emergency and an imperative public necessity that the

3-11     constitutional rule requiring bills to be read on three several

3-12     days in each house be suspended, and this rule is hereby suspended.