Texas 2017 - 85th Regular

Texas House Bill HB3881 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R3597 MAW-D
2	2	By: Alvarado H.B. No. 3881
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the issuance of a writ of attachment.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 2, Code of Criminal Procedure, is
10	10	amended by adding Article 2.212 to read as follows:
11	11	Art. 2.212. WRIT OF ATTACHMENT REPORTING. Not later than
12	12	the 30th day after the date a writ of attachment is issued in a
13	13	district court, statutory county court, or county court, the clerk
14	14	of the court shall report to the Texas Judicial Council:
15	15	(1) the date the attachment was issued;
16	16	(2) whether the attachment was issued in connection
17	17	with a grand jury investigation, criminal trial, or other criminal
18	18	proceeding;
19	19	(3) the names of the person requesting and the judge
20	20	issuing the attachment; and
21	21	(4) the statutory authority under which the attachment
22	22	was issued.
23	23	SECTION 2. Article 20.10, Code of Criminal Procedure, is
24	24	amended to read as follows:
25	25	Art. 20.10. ATTORNEY OR FOREMAN MAY ISSUE SUMMONS OR
26	26	REQUEST ATTACHMENT [PROCESS]. (a) The attorney representing the
27	27	state[,] or the foreman, in term time or vacation, may:
28	28	(1) issue a summons [or attachment] for any witness in
29	29	the county in which the grand jury is [where they are] sitting; or
30	30	(2) request that the district judge issue an
31	31	attachment for any witness in the county in which the grand jury is
32	32	sitting.
33	33	(b) The [; which] summons or attachment may require the
34	34	witness to appear before the grand jury [them] at a time fixed, or
35	35	immediately [forthwith], without stating the matter under
36	36	investigation.
37	37	SECTION 3. Article 20.11, Code of Criminal Procedure, is
38	38	amended by amending Section 1 and adding Section 1-a to read as
39	39	follows:
40	40	Sec. 1. The foreman or the attorney representing the State
41	41	may, on [upon] written application to the district court stating
42	42	the name and residence of the witness and that the witness's [his]
43	43	testimony is believed to be material, cause a subpoena [or an
44	44	attachment] to be issued to any county in the State for the [such]
45	45	witness, returnable to the grand jury then in session, or to the
46	46	next grand jury for the county from which the subpoena was [whence
47	47	the same] issued, as the [such] foreman or attorney may desire. The
48	48	subpoena may require the witness to appear and produce records and
49	49	documents.
50	50	Sec. 1-a. The foreman or the attorney representing the
51	51	state may, on written application to the district court stating the
52	52	name and residence of the witness and that the witness's testimony
53	53	is believed to be material, request that the district judge issue an
54	54	attachment for the witness to any county in the state. The [An]
55	55	attachment shall command the sheriff or any constable of the county
56	56	where the witness resides to serve the witness, and have the witness
57	57	[him] before the applicable grand jury as described by Section 1 at
58	58	the time and place specified in the attachment [writ].
59	59	SECTION 4. Article 20.12, Code of Criminal Procedure, is
60	60	amended to read as follows:
61	61	Art. 20.12. ATTACHMENT IN TERM TIME OR VACATION. The
62	62	attorney representing the state or the foreman may request that
63	63	[cause] an attachment for a witness [to] be issued, as provided
64	64	under [in the preceding] Article 20.11, either in term time or in
65	65	vacation.
66	66	SECTION 5. Article 24.11, Code of Criminal Procedure, is
67	67	amended to read as follows:
68	68	Art. 24.11. REQUISITES OF AN "ATTACHMENT". An "attachment"
69	69	is a writ issued by a [clerk of a court under seal, or by any]
70	70	magistrate [, or by the foreman of a grand jury,] in any criminal
71	71	action or proceeding authorized by law, commanding a [some] peace
72	72	officer to take the body of a witness and bring the witness [him]
73	73	before the [such] court in which the action or proceeding is
74	74	pending, immediately or [, magistrate or grand jury] on a day
75	75	specified in the attachment [named, or forthwith], to testify in
76	76	behalf of the State or of the defendant, as applicable [the case may
77	77	be]. The attachment [It] shall be dated and signed officially by
78	78	the magistrate [officer issuing it].
79	79	SECTION 6. Chapter 24, Code of Criminal Procedure, is
80	80	amended by adding Article 24.111 to read as follows:
81	81	Art. 24.111. HEARING REQUIRED BEFORE ISSUANCE OF
82	82	ATTACHMENT. (a) Notwithstanding any other law, a writ of
83	83	attachment may only be issued to compel the testimony of a witness
84	84	in a criminal action or proceeding if the issuing magistrate
85	85	determines, after notice to the witness and a hearing in open court,
86	86	that the witness is a material witness and issuance of the
87	87	attachment is necessary to ensure the testimony of the witness. If
88	88	the witness does not reside in the county in which the action or
89	89	proceeding is pending, the hearing required by this article must be
90	90	held in open court before a magistrate in the witness's county of
91	91	residence.
92	92	(b) The issuing magistrate shall appoint an attorney to
93	93	represent the witness at the hearing described by Subsection (a).
94	94	(c) This article does not apply to an attachment issued
95	95	under Article 24.13 or 49.14.
96	96	SECTION 7. Article 24.12, Code of Criminal Procedure, is
97	97	amended to read as follows:
98	98	Art. 24.12. WHEN ATTACHMENT MAY ISSUE. When a witness who
99	99	resides in the county of the prosecution has been duly served with a
100	100	subpoena to appear and testify in any criminal action or proceeding
101	101	fails to so appear, the State or the defendant may request that the
102	102	applicable magistrate issue an attachment [shall be entitled to
103	103	have an attachment issued forthwith] for the [such] witness.
104	104	SECTION 8. Article 24.14, Code of Criminal Procedure, is
105	105	amended to read as follows:
106	106	Art. 24.14. ATTACHMENT FOR RESIDENT WITNESS. (a) When a
107	107	witness resides in the county of the prosecution, regardless of
108	108	whether the witness [he] has disobeyed a subpoena [or not], either
109	109	in term time [term-time] or vacation, [upon the filing of an
110	110	affidavit with the clerk by] the defendant or State's counsel may
111	111	request that the court issue an attachment for the witness by filing
112	112	an affidavit with the clerk of the court stating[,] that the affiant
113	113	[he] has good reason to believe, and does believe, that the [such]
114	114	witness is a material witness[,] and is about to move out of the
115	115	county.
116	116	(b) If an attachment is issued under this article,
117	117	regardless of whether the case involves a felony or [the clerk shall
118	118	forthwith issue an attachment for such witness; provided, that in]
119	119	misdemeanor [cases], when the witness makes oath that the witness
120	120	[he] cannot give surety, the officer executing the attachment shall
121	121	take the witness's [his] personal bond.
122	122	SECTION 9. Article 24.15, Code of Criminal Procedure, is
123	123	amended to read as follows:
124	124	Art. 24.15. TO SECURE ATTENDANCE BEFORE GRAND JURY. At any
125	125	time before the first day of any term of the district court, the
126	126	clerk, on [upon] application of the State's attorney, shall issue a
127	127	subpoena for any witness who resides in the county. If at the time
128	128	the [such] application is made, the [such] attorney files a sworn
129	129	application that the attorney [he] has good reason to believe and
130	130	does believe that the [such] witness is about to move out of the
131	131	county, then the district judge may [said clerk shall] issue an
132	132	attachment for the [such] witness to be and appear before the [said]
133	133	district court on the first day of the term [thereof] to testify as
134	134	a witness before the grand jury. Any witness so summoned, or
135	135	attached, who fails [shall fail] or refuses [refuse] to obey a
136	136	subpoena or attachment, shall be punished by the court by a fine not
137	137	exceeding five hundred dollars, to be collected as fines and costs
138	138	in other criminal cases.
139	139	SECTION 10. Article 24.22, Code of Criminal Procedure, is
140	140	amended to read as follows:
141	141	Art. 24.22. WITNESS FINED AND ATTACHED. (a) If a witness
142	142	summoned from outside [without] the county refuses to obey a
143	143	subpoena, the witness [he] shall be fined by the court or magistrate
144	144	not exceeding five hundred dollars, which fine and judgment shall
145	145	be final, unless set aside after due notice to show cause why it
146	146	should not be final, which notice may immediately issue, requiring
147	147	the defaulting witness to appear at once or at the next term of the
148	148	[said] court, in the discretion of the magistrate issuing the
149	149	subpoena [judge], to answer for the [such] default.
150	150	(b) The court may cause to be issued at the same time an
151	151	attachment for the [said] witness, directed to the proper county,
152	152	commanding the officer to whom the attachment [said writ] is
153	153	directed to take the [said] witness into custody and have the
154	154	witness [him] before the [said] court at the time specified [named]
155	155	in the attachment [said writ]; in which case the [such] witness
156	156	shall receive no fees, unless it appears to the court that the
157	157	[such] disobedience is excusable, when the witness may receive the
158	158	same pay as if the witness [he] had not been attached.
159	159	(c) The [Said] fine when made final and all related costs
160	160	[thereon] shall be collected in the same manner as in other criminal
161	161	cases. The [Said] fine and judgment may be set aside in vacation or
162	162	at the time or any subsequent term of the court for good cause
163	163	shown, after the witness testifies or has been discharged.
164	164	(d) The following words shall be written or printed on the
165	165	face of a [such] subpoena for an out-of-county witness [out-county
166	166	witnesses]: "A disobedience of this subpoena is punishable by fine
167	167	not exceeding five hundred dollars, to be collected as fines and
168	168	costs in other criminal cases."
169	169	SECTION 11. Section 71.034(e), Government Code, is amended
170	170	to read as follows:
171	171	(e) In addition to the information described by Subsection
172	172	(a), the council shall include in the report a summary of
173	173	information provided to the council during the preceding year under
174	174	Articles [Article] 2.211 and 2.212, Code of Criminal Procedure.
175	175	SECTION 12. The change in law made by this Act applies only
176	176	to a writ of attachment issued on or after the effective date of
177	177	this Act. A writ of attachment issued before the effective date of
178	178	this Act is governed by the law in effect on the date the writ was
179	179	issued, and the former law is continued in effect for that purpose.
180	180	SECTION 13. This Act takes effect September 1, 2017.