The Supporting-Affidavit Requirements for a Texas Change of Venue

Who Must Swear the Affidavits, and How Many?

The statute is exact about the affidavits. The change-of-venue motion must be in writing and supported by the defendant’s own affidavit plus the affidavits of at least two credible persons who are residents of the county where the prosecution is commenced. Two moving parts appear immediately: the defendant must swear, and at least two qualifying residents must swear alongside.

In Roy v. State, the Court of Criminal Appeals recited the requirement precisely: the defendant’s own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, alleging either great prejudice or a dangerous combination, the truth and sufficiency of which the court determines. The number is a floor, not a ceiling — a defendant may file more than two supporting affiants, and often should, but may not file fewer.

The residents are traditionally called compurgators, and their county residency is not a formality. The Legislature chose county residents because they are the people positioned to know the local climate. An affidavit from a family member who lives two counties away, however sincere, does not satisfy the statute, and neither does an affidavit from someone legally disqualified from serving as a witness. The threshold looks simple, but it is where a surprising number of motions come apart before the court ever reaches the merits.

The defendant’s own affidavit carries independent weight and should not be treated as an afterthought. It is the sworn assertion that ties the motion to the accused personally, and it must be consistent with the residents’ affidavits on the ground alleged and the county involved. A mismatch — for example, a defendant swearing to community-wide prejudice while the resident affiants describe only a dangerous combination — invites the State to argue that the showing is internally contradictory. Practitioners also confirm that the defendant is competent to swear the affidavit and that it is properly executed, because a defect in the defendant’s verification undermines the entire application no matter how strong the resident affidavits are. Getting the roster right — the defendant plus at least two qualifying residents, all aligned on the same ground — is the first thing a court and an opposing prosecutor will check.

What Makes an Affiant 'Credible,' and Why 'Means of Knowledge' Matters

Two qualities give a supporting affidavit weight: the affiant’s credibility and the affiant’s means of knowledge. Credibility concerns whether the person is worthy of belief; means of knowledge concerns whether the person actually has a factual basis for swearing that the defendant cannot get a fair trial. Both are open to attack, so both should be shored up when the affidavits are drafted.

An affidavit that merely parrots the statutory conclusion — that great prejudice exists — is weaker than one that shows how the affiant knows it. Longtime residents who describe what they have heard across the county, their contacts in different communities, and the sources of their impression give the court a means of knowledge to credit. Because the State can challenge either the credibility or the means of knowledge of the affiants, an affidavit grounded in a concrete factual basis is far more durable than one resting on conclusion or belief.

The credibility and means-of-knowledge inquiry is the hinge on which the State’s challenge turns, a subject developed on the companion page about contesting counter-affidavits. At the drafting stage, the practical goal is to make each affiant’s basis of knowledge explicit so the affidavit can withstand that challenge.

Credibility and means of knowledge are related but not identical, and conflating them weakens an affidavit. A person can be entirely honest — unquestionably credible — yet lack any real basis for swearing about the mood of an entire county, and an affidavit from such a person is vulnerable even though no one doubts the affiant’s integrity. Conversely, an affiant with deep, county-wide contacts supplies a strong means of knowledge that is hard to dislodge. The most durable affidavits therefore pair a reputable affiant with an explicit account of how that affiant knows what the community thinks: years of residence, work or civic roles that create broad contact, and specific observations of how the case is discussed. Drafting that basis into the affidavit, rather than leaving it to be developed for the first time at the hearing, blunts the State’s ability to characterize the affiant as a well-meaning stranger to the county’s actual climate.

What the Affidavits Must Say: Tracking the Statutory Grounds

The content of the affidavits should track the statute’s grounds. The defendant and the resident affiants swear that, in the county where the case is filed, there is either so great a prejudice that a fair and impartial trial cannot be had, or a dangerous combination against the defendant instigated by influential persons. Pleading the ground clearly frames the fact issue the court will decide.

An effective supporting affidavit does more than recite the statutory language. It states the affiant’s county residency, identifies the ground, and gives the factual basis in plain terms — what the affiant has observed about community sentiment, the reach of that sentiment across the county, and, for a dangerous-combination claim, the influential persons and how their combination operates. The two grounds are analyzed separately on the companion pages about pretrial publicity and community prejudice, and an affidavit may support one ground, the other, or both.

Precision helps at every later stage. A well-pleaded affidavit tells the trial court exactly what to weigh at the hearing, gives the reviewing court a concrete record if the motion is denied, and makes it harder for the State to characterize the affiants as swearing to conclusions they cannot support. Vague, boilerplate affidavits invite the opposite result, because they neither show a means of knowledge nor commit the affiant to facts that can be tested and believed.

Defective Affidavits: The Consequences of Getting It Wrong

A change-of-venue application that fails to comply with the affidavit requirements is not merely weak — it can be fatally defective, meaning the court need not consider it and no fact issue is presented for trial. The most common defects are too few affiants, non-resident affiants, and affidavits that swear to belief rather than knowledge.

The point is old and settled. In Howard v. State, the Court of Criminal Appeals held that where a change-of-venue application was supported by the affidavit of only one person besides the defendant — while the statute required at least two credible residents — the application was fatally defective and the court was under no obligation to consider it. An application supported by a single compurgator, the court explained, is insufficient to present an issue for trial. The current statute retains the same two-resident minimum, so Howard’s rule still marks the floor.

Other defects are just as unforgiving. An affiant who does not reside in the county does not count toward the required two. An affidavit sworn on “information and belief” rather than personal knowledge supplies no means of knowledge for the court to credit. And an affidavit from a person legally disqualified from testifying cannot do the work of a compurgator. Because these are threshold problems, they are better caught before filing: confirm residency, secure at least two credible affiants, and make sure each affidavit rests on a genuine factual basis rather than a signature under a lawyer’s conclusions.

Amendment is not always available, so the safer course is to file it right the first time. Some defects, like a missing second resident, can sometimes be cured if caught early, but a defendant cannot assume the trial court will hold the motion open to allow supplementation, and a defect discovered mid-hearing can be fatal to the request. The problem compounds when the calendar is tight: preservation of the venue issue depends on presenting a compliant motion before the jury is chosen, so a defect found on the eve of trial may leave no time to fix it. For that reason, experienced counsel audits each affidavit against the statute’s checklist — writing, defendant’s affidavit, two credible residents, county residency, stated ground, and a genuine basis of knowledge — well before the deadline, treating the affidavits as the load-bearing element of the motion that they are.

The Prima Facie Effect: When an Uncontested Motion Wins as a Matter of Law

Properly drawn affidavits do more than open the door — they can decide the motion. When a defendant files a motion that complies with the statute and the State does not controvert it, Texas law entitles the accused to a change of venue as a matter of law, because there is no fact issue for the court to resolve.

That rule comes from cases like Durrough v. State, which holds that a properly verified motion complying with the venue statute and left uncontroverted by the State entitles the accused to a change of venue as a matter of law. Lundstrom v. State states the same principle from the other direction: if the State files no controverting affidavit, the defendant is entitled to the change as a matter of law, because in the absence of controverting evidence there is no issue of fact to be resolved. This is the payoff for getting the affidavits right — a compliant, uncontested motion is not a discretionary call.

There is an important catch. Lundstrom also holds that a defendant waives this matter-of-law entitlement by participating in a hearing on the merits and letting the trial court exercise its discretion on the fact issue. In other words, if the State fails to controvert but the defense proceeds to litigate the motion anyway, the defendant cannot later claim entitlement as a matter of law. How the State joins issue and how that entitlement is preserved or lost are the focus of the companion page on contesting counter-affidavits.

The matter-of-law rule rewards diligence, but it is narrow and easily lost, so it should be understood as a preserved argument rather than a guaranteed result. It applies only when the motion actually complies with the statute and the State genuinely fails to controvert — not when the State files a general denial, which Lundstrom holds is enough to join the issue. A defendant who wants the benefit of the rule must present a clean, compliant motion, confirm on the record that no sufficient controverting affidavit was filed, and decline to try the merits. Treating the entitlement as automatic, or drifting into an evidentiary hearing without asserting it, is the most common way defendants forfeit an advantage the affidavits had already earned.

Timing, Verification, and Practice Pointers

Because the affidavits are the foundation, the mechanics of preparing and filing them deserve care. The motion is a pretrial matter, and the affidavits must be assembled, verified, and filed in time for the court to hold a hearing before the jury is selected.

Several practical points recur. First, verify residency for each compurgator; a well-meaning affiant who recently moved out of the county cannot supply one of the required two. Second, build in a margin — filing three or four solid affidavits rather than the bare minimum guards against the loss of an affiant to a credibility challenge. Third, make each affidavit’s means of knowledge explicit, so the affiant is not left vulnerable to the charge of swearing to a conclusion. Fourth, keep the defendant’s own affidavit consistent with the residents’ affidavits on the ground alleged.

Finally, preserve the record. File the motion in writing, present it before trial, and obtain a ruling. If the trial court denies a properly supported motion without a hearing, or the State fails to controvert it, the affidavits may entitle the accused to relief as a matter of law — but only if the record shows a compliant motion and preserves the point. None of this is a promise of any particular result; it is the disciplined groundwork that gives the motion a fair chance to be decided on the merits rather than dismissed on a technicality.

Where This Fits

This guide is one of four situations that arise under the Motion for Change of Venue. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Roy v. State, 608 S.W.2d 645 (Tex. Crim. App. 1980) — The motion needs the defendant's plus at least two credible resident affidavits; the court determines their truth and sufficiency.
• Howard v. State, 184 S.W. 505 (Tex. Crim. App. 1916) — An application supported by only one affiant besides the defendant is fatally defective and presents no issue for trial.
• Durrough v. State, 562 S.W.2d 488 (Tex. Crim. App. 1978) — A properly verified venue motion the State leaves uncontroverted entitles the accused to a change of venue as a matter of law.
• Lundstrom v. State, 742 S.W.2d 279 (Tex. Crim. App. 1987) — If the State files no controverting affidavit there is no fact issue, but a defendant waives that entitlement by litigating the merits.

General summaries of published opinions for information only — not predictions about any specific case.