Feel free to punch holes in this balloon. I am thinking about preparing legislation to authorize a superceding indictment. I am aware of CCP Art. 28.10 for amending indictments and use it from time to time. However, new offenses cannot be added by amendment.

A re-indictment gets a new cause number and causes all kinds of paperwork problems with motions, discovery orders, counsel appointment order, etc. remaining in the clerk's first indictment file. With a superceding indictment, the cause number would remain the same.

Some sexual assault with child cases come to mind. I have a case right now where sexual abuse occurred over a three year period, but obtaining actual offense dates has been problematic. The child has undergone a lot of counseling and more information has come to light recently. I will add some new charges, especially for stacking purposes, but will have to get a new indictment to do so.

Another situation is where one agency sends me a burglary case; I get an indictment; then another agency sends me another burglary case on the same defendant. My preference would be to add the new burglary in a superceding indictment. I could combine them in a new indictment but there are advantages to using the existing cause number.

Do you think this concept is worth pursuing? Would you use it if it were available?

I do think that is a good idea. We thought about this 10 years ago, but our judges did not like the idea.

When we re-indict here, we have a motion & order for all paperwork, motions & orders from the previous cause number to be transferred to the new court shuck under the new cause number. This seems to have helped make sure everything in the old court shuck makes it into the new shuck.

Wouldn't you run into a problem with the grand jury requirement of Art. I Section 10 when trying to charge a new crime? Or are you proposing amending the Texas constitution to delete or modify that provision?

I did not make myself clear. The superceding indictment would be voted on by a grand jury and would keep the same cause number as the earlier indictment. Thus, no constitutional problem.

In my district, if we reindict, the clerk adds an "A" to the indictment, so the cause # would be 10,000-A. Everything stays in the same shuck and we get on the record that all motions filed in the original # are now filed in the "A" number. It works well and the clerk likes it, which is all important!

Any thoughts on following the system of grand jury proceedings at the option of the prosecuting attorney??? According to the ABA about half of the states do not use a grand jury.

don't we have some posting about how we all hate the ABA?

quote:

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Originally posted by J.R. Allen:
Any thoughts on following the system of grand jury proceedings at the option of the prosecuting attorney???

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I'd shelve the optional grand jury idea for now -- I'm guessing that is something that would take more legislative effort than most offices would be willing to exert.

Can anyone else think of any issues that might present problems for Ken's idea?

I haven't tried to look it up yet, but is there anything that prevents the clerk from simply filing the new indictment in the same case as the previous indictment? Sort of like and amended pleading, but with a grand jury foreperson's signature on it. Sort of along the same lines as the "-A" suffix, but without actually creating a new file.

I can't think of any problems at all with Ken's idea. It's a great idea. And since there is no fiscal impact that I can see, it should make it through. I just don't see a downside... Even the defense bar should appreciate this procedure more than the current amending process.

Why do we need a new law to accomplish it? Personally, it doesn't bother me to open a new file. It's just paper. But, if the clerk wants to put the new indictment into the old file, why would he/she need a statute to get it done?

When we reindict a case, my district clerks choose to assign it a new number and open a new case file. This creates the need to dismiss the "old" indictment and to insure that all of the motions filed by both sides are transferred to the new cause number. It's not a huge deal in the big scheme of things but it is not only a waste of paper but time as well in my counties by not having a legal mechanism such as the one suggested by Ken. My district clerks probably could just file the reindictment in the original indictment file or just assign an "A" to the new indictment but they have chosen not to do so. It may not be needed everywhere but I would see the benefits in my counties.

The Clerk has the duty of maintaining and arranging the records of the court. I do not think the statutes get very specific about how to accomplish that task. Of course, there is TRADITION that always limits new ideas.

If the indictment itself clearly stated that it was the intent of the grand jury to amend or supercede a certain prior indictment, then there should be no question that there would be no need for the clerk to assign a new cause number to it (even without a new statute).

With a re-indictment you need to transfer all motions, orders, bail bond, counsel appointment order, etc. to the new cause number. None of that is necessary if the law allowed a superceding indictment. Also, determining jail credit would be easier with just one cause number.

Martin raises a good question. If the indictment were labelled "Superceding Indictment" and language was added to reflect the fact that it was replacing an earlier indictment, would this eliminate the need for new legislation? What if you were going before a different grand jury?

While not called a superceding indictment, the practice of filing a second indictment in the same case seems to be implicitly approved in Morris
("Because there was no amendment to an indictment in this case, the articles governing the procedure for amending an indictment are inapplicable.").