ORDER
W. C. DAVIS, Judge.This is an application for a post-conviction writ of habeas corpus, pursuant to Article 11.07, Vernon’s Ann.C.C.P. The petitioner’s conviction for murder was upheld in this Court in Smith v. State, 595 S.W.2d 120 (Tex.Cr.App.1980).
The petitioner pro se contends for the first time that he is illegally restrained of his liberty because (1) he was denied the effective assistance of counsel when his attorney failed to inform him that he had the right to be indicted by a grand jury; (2) he was denied due process when he was not charged by indictment and did not waive indictment; and (3) the trial court was without jurisdiction over the trial proceedings because he was tried by information and did not waive indictment.
The trial court, in its specific findings of fact and conclusions of law, found that petitioner’s application was totally without merit and recommended that it be denied. The judgment and sentence in Cause No. F77-7325-J appear in the record, indicating that the petitioner was tried by information. The trial court does not address the issue of whether the petitioner did in fact waive the right to be indicted, but instead holds that petitioner’s “allegation does not raise a constitutional question or a question *69which would entitle petitioner to relief now that his conviction is final.”1 This Court, of course, is not bound by the findings and conclusions of the trial court.
The judgment, sentence and docket sheets of the trial court appear in the record before us. They do not indicate that the petitioner either orally or by written instrument waived indictment. Further, we have examined the trial record which was brought before us on direct appeal, and we find no written or oral waiver of indictment contained therein.
Article 1.141, Vernon’s Ann.C.C.P. provides:
“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.”
In King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971), this Court held:
“It is well to bear in mind that a felony information acts in lieu or of as a substitute for an indictment and its validity is therefore essential to the court’s jurisdiction ... If an accused has not effectively waived his right to an indictment in full accordance with the statute the felony information is void. An indictment is still mandatory in absence of a valid waiver. For the waiver to be effective it must be intelligently, voluntarily, and knowingly given by the accused while represented by counsel...
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To prevent the procedure permitted by Article 1.141, supra, from becoming a fertile breeding ground for future post-conviction habeas corpus applications, it would be better practice to have the written waiver executed in open court by the accused and his counsel, after the accused has been advised of his rights by the court.” (Footnote omitted)
See Ex Parte Hunter, 604 S.W.2d 188 (Tex.Cr.App.1980).
In Lackey v. State, 574 S.W.2d 97 (Tex.Cr.App.1978), it was held that a defendant must personally waive the right to be accused by indictment. Without the personal, intelligent, voluntary and knowing waiver of indictment by an accused, while represented by counsel, the trial court does not have jurisdiction to try an accused upon an information in a felony case. While most rights and procedural matters may be waived, jurisdictional matters may not be. Lackey v. State, supra.
We remand this cause with instructions to the trial court to enter findings of fact as to whether or not the petitioner waived indictment in open court or by written instrument, in accordance with Article 1.141, supra. The trial court should file these findings of fact and return them to this Court, together with a copy of any affidavits, depositions, or interrogatories that may be filed. These findings should be forwarded to this Court within 30 days of receipt of this order.
Opinion After Remand
On June 17, 1981, this cause was remanded to the trial court for findings of facts concerning whether or not petitioner waived the right to be tried by indictment. Although such a waiver did not appear in either the record on direct appeal or the record on the post-conviction writ, we remanded this case, so that if a waiver of indictment did indeed exist, it might reappear.
A hearing was held in the trial court on August 28, 1981; the transcription of that hearing, as well as the trial court’s findings and conclusions, are now before this Court. The record reflects the petitioner was indicted for capital murder and aggravated robbery; both indictments arose out of the same transaction. Jan Potts, the prosecutor who tried the murder case *70against petitioner, explained that on the day of trial, she realized that it might be difficult to prove that a robbery had occurred; therefore, after discussing the matter with petitioner’s defense attorneys, an information for murder was filed.
The petitioner testified at the hearing that when he went to trial on September 13, 1977, he expected to be tried for the offense of aggravated robbery. Petitioner stated that he never waived the right to be indicted for the offense of murder. He also stated that he was not advised by his attorneys that he was being tried by information.
Jan Potts testified that she believed a written waiver of indictment was executed and hypothesized that the instrument was misplaced in a courtroom shuffle.
The Hon. James Zimmermann, who presided over petitioner’s murder trial, testified that it was his general practice to first check the court’s jacket for the charging instrument before accepting a plea from an accused. Zimmermann stated that he could not remember if there was a written waiver in petitioner’s case.
A deposition from petitioner’s trial counsel also appears in the record. The attorney stated that although he had no independent recollection of advising the petitioner concerning a waiver of the right to be indicted, he stated that it was certainly his general practice to do so.
As we stated on remand of this case, without the proper waiver of an indictment by an accused, the trial court does not have jurisdiction to try an accused upon an information in a felony case. We cannot conclude, in light of the record before us, that a proper waiver did occur. Accordingly, the relief requested is granted. The judgment is set aside.
Motion for leave to file State’s motion for rehearing denied.
. The trial court cites Craven v. State, 607 S.W.2d 527 (Tex.Cr.App.1980); Ex Parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1979); Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980) and Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976) as authority for this conclusion. These cases are not applicable to the instant case, however.