(dissenting).
The majority hold that Art. 1,141, V.A. C.C.P., created a new accusatory pleading, the “felony information” which need not comport with the traditional requisites of Art. 21.22, V.A.C.C.P., that “no information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.” I disagree.
The language of Art. 1.141, supra, merely states that the prosecution shall be by “information,” without further definition or explanation. In Chapter 21 of the 1965 Code of Criminal Procedure, there is a detailed scheme of rules relating to and regulating indictments and informations, and specifying the respective requisites of each. These rules have been a basic element of our criminal procedure for years and it is safe to assume that the Legislature was aware of them when it enacted Art. 1.141, supra. Yet, the Legislature did not further clarify the meaning of the term “information.” To assume, as the majority have *283done, from this lack of specificity, that the Legislature intended to negate, in those cases in which indictment is waived, the requirement that no information shall be presented until it is supported by a complaint, would be to usurp the powers of the Legislature. See Thomas v. State, 129 Tex.Cr.R. 628, 91 S.W.2d 716, 718 (1935) wherein it was held:
“A matter not included within a penal statute should not by judicial construction be read into it because in so doing the judiciary would usurp the functions of the Legislature. The legislative intent should be ascertained from the words of the act itself.” (Emphasis added)
From the few words of the Act in question here, it is more logical to conclude that it was the legislative intent that the term “information” in Art. 1.141, supra, be read in its ordinary sense, that is, as it is used and defined in the Code of Criminal Procedure.1 In this respect, Art. 1.141, supra, fits more reasonably within our existing statutory scheme. This construction requires the least assumption on this Court’s part of what the Legislature intended, comports with the existing procedural rules regarding our accusatory pleadings, and advances the purposes which Art. 1.141,supra, was intended to promote.2 It is indeed a strained construction from the bare language of the statute that the Legislature intended to alter the traditional concept of the information. Had this in fact been the case, additional language specifying the manner in which the felony information differed from the traditional information would, no doubt, have been included.
In King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971), this Court clearly assumed that the term “information” as used in Art. 1.141,supra, was used in its ordinary sense, for we said at p. 50:
“Even if an individual represented by counsel waives an indictment in a non-capital case in accordance with Article 1.141,supra, the prosecuting attorney need not, if he feels that the public interest or public policy is involved, file a complaint and information.” (Emphasis added)
This also appears to have been the case in Harris v. State, 499 S.W.2d 139 (Tex.Cr.App.1973). There the accused waived indictment and was prosecuted by information, supported by a complaint. On appeal, he raised objections to the validity of the complaint, which this Court considered and discussed. Such a discussion must, of necessity, have been predicated on the assumption that the complaint was a requisite to the validity of the information, otherwise there was no reason to dispose of the contention. Had the complaint been deemed unnecessary, the appellant’s contention would have been moot at best.
The majority rely on Article V, Section 17, of the Constitution of Texas for the proposition that a complaint in a misdemeanor prosecution in County Court is not constitutionally required and it is only by our procedural rules that a complaint is necessary for a valid information. While this may be correct, it does not necessarily follow that Art. 1.141, supra, in and of itself, creates a new form of accusatory pleading without specifically so providing. I am unable to subscribe to the holding of the majority and would construe Art. 1.-141, supra, in accordance with the existing statutory scheme which requires a complaint be made before an information issue.
I dissent to the affirmance of the instant case.
ONION, P. J., joins this dissent.. Art. 3.01, Y.A.O.C.P., provides:
“All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”
. See “Note — A New Waiver in Texas Criminal Procedure,” 24 Baylor L.Rev. 636 (1972).