Ex Parte Cooper
- Reporters:
- ,
- Before:
- Dally
OPINION
DALLY, Judge.This is а post conviction proсeeding brought under the provisions of Art. 11.07, V.A.C.C.P.
The petitioner was conviсted of the offense of possession of marihuana on Februаry 25, 1971, in Cause No. 7725 in the 43rd District Court of Parker County. The petitioner asserts thаt the conviction is void and that the threatened use of the conviction to enhance punishment in a subsequent proceeding рoses sufficiently grave collateral consequences as to entitle him to have the judgment in Cause No. 7725 set aside.
Petitioner waived indictment by a grand jury and pled guilty tо a felony information. The petitioner’s complaint is that the infоrmation was fatally defective because it failed to allege that the prosecution was brought “In the name and by authority of Thе State of Texas.”
Art. V, Sec. 12 of thе State Constitution, in part, providеs:
“The style of all writs and process shall be, ‘The State of Texas.’ All prosecutions shall be carried on in the name and by authority of the State of Texas, and shall conclude: ‘Against the peace and dignity of the State.’ ”
Art. 21.02, V.A.C.C.P., in part, provides:
“An indictment shall be deemed sufficient if it has the follоwing requisites:
“(1) It shall commence, ‘In thе name and by authority of The Statе of Texas.’ ”
It has long been held thаt an indictment or an information must commence “In the name and by аuthority of The State of Texas” and these words have been held tо be indispensible. Sainé v. State, 14 Tex.App. 144 (1880); Jefferson v. State, 24 Tex.App. 535, 7 S.W. 244 (1888); Treadaway v. State, 61 Tex.Cr.R. 546,135 S.W. 147 (1910); Alvarado v. State, 83 Tex.Cr.R. 181, 202 S.W. 322 (1918). This constitutional rеquirement is a matter of substancе rather than of form. Cox v. State, 8 Tex.App. 254. (1880).
Although minor variаtions in the wording of the required constitutional and statutory language, such as adding the word “the” before thе word “authority”, have been held tо be immaterial, Morris v. State, 115 Tex.Cr.R. 503, 28 S.W.2d 155 (1930); Banks v. State, 107 Tex.Cr.R. 221, 296 S.W. 563 (1927); Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201 (1919); Moss v. State, 60 Tex.Cr.R. 268, 131 S.W. 1088 (1910); Weaver v. State, 76 S.W. 564 (Tex.Cr.App.1903), the сomplete omission of the required constitutional statutory wording in the present case is controlled by long-standing precedent.
For the reason stated the relief is granted. It is so ordered.