85R3597 MAW-D
By: Alvarado H.B. No. 3881
A BILL TO BE ENTITLED
AN ACT
relating to the issuance of a writ of attachment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2, Code of Criminal Procedure, is
amended by adding Article 2.212 to read as follows:
Art. 2.212. WRIT OF ATTACHMENT REPORTING. Not later than
the 30th day after the date a writ of attachment is issued in a
district court, statutory county court, or county court, the clerk
of the court shall report to the Texas Judicial Council:
(1) the date the attachment was issued;
(2) whether the attachment was issued in connection
with a grand jury investigation, criminal trial, or other criminal
proceeding;
(3) the names of the person requesting and the judge
issuing the attachment; and
(4) the statutory authority under which the attachment
was issued.
SECTION 2. Article 20.10, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.10. ATTORNEY OR FOREMAN MAY ISSUE SUMMONS OR
REQUEST ATTACHMENT [PROCESS]. (a) The attorney representing the
state[,] or the foreman, in term time or vacation, may:
(1) issue a summons [or attachment] for any witness in
the county in which the grand jury is [where they are] sitting; or
(2) request that the district judge issue an
attachment for any witness in the county in which the grand jury is
sitting.
(b) The [; which] summons or attachment may require the
witness to appear before the grand jury [them] at a time fixed, or
immediately [forthwith], without stating the matter under
investigation.
SECTION 3. Article 20.11, Code of Criminal Procedure, is
amended by amending Section 1 and adding Section 1-a to read as
follows:
Sec. 1. The foreman or the attorney representing the State
may, on [upon] written application to the district court stating
the name and residence of the witness and that the witness's [his]
testimony is believed to be material, cause a subpoena [or an
attachment] to be issued to any county in the State for the [such]
witness, returnable to the grand jury then in session, or to the
next grand jury for the county from which the subpoena was [whence
the same] issued, as the [such] foreman or attorney may desire. The
subpoena may require the witness to appear and produce records and
documents.
Sec. 1-a. The foreman or the attorney representing the
state may, on written application to the district court stating the
name and residence of the witness and that the witness's testimony
is believed to be material, request that the district judge issue an
attachment for the witness to any county in the state. The [An]
attachment shall command the sheriff or any constable of the county
where the witness resides to serve the witness, and have the witness
[him] before the applicable grand jury as described by Section 1 at
the time and place specified in the attachment [writ].
SECTION 4. Article 20.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.12. ATTACHMENT IN TERM TIME OR VACATION. The
attorney representing the state or the foreman may request that
[cause] an attachment for a witness [to] be issued, as provided
under [in the preceding] Article 20.11, either in term time or in
vacation.
SECTION 5. Article 24.11, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.11. REQUISITES OF AN "ATTACHMENT". An "attachment"
is a writ issued by a [clerk of a court under seal, or by any]
magistrate [, or by the foreman of a grand jury,] in any criminal
action or proceeding authorized by law, commanding a [some] peace
officer to take the body of a witness and bring the witness [him]
before the [such] court in which the action or proceeding is
pending, immediately or [, magistrate or grand jury] on a day
specified in the attachment [named, or forthwith], to testify in
behalf of the State or of the defendant, as applicable [the case may
be]. The attachment [It] shall be dated and signed officially by
the magistrate [officer issuing it].
SECTION 6. Chapter 24, Code of Criminal Procedure, is
amended by adding Article 24.111 to read as follows:
Art. 24.111. HEARING REQUIRED BEFORE ISSUANCE OF
ATTACHMENT. (a) Notwithstanding any other law, a writ of
attachment may only be issued to compel the testimony of a witness
in a criminal action or proceeding if the issuing magistrate
determines, after notice to the witness and a hearing in open court,
that the witness is a material witness and issuance of the
attachment is necessary to ensure the testimony of the witness. If
the witness does not reside in the county in which the action or
proceeding is pending, the hearing required by this article must be
held in open court before a magistrate in the witness's county of
residence.
(b) The issuing magistrate shall appoint an attorney to
represent the witness at the hearing described by Subsection (a).
(c) This article does not apply to an attachment issued
under Article 24.13 or 49.14.
SECTION 7. Article 24.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.12. WHEN ATTACHMENT MAY ISSUE. When a witness who
resides in the county of the prosecution has been duly served with a
subpoena to appear and testify in any criminal action or proceeding
fails to so appear, the State or the defendant may request that the
applicable magistrate issue an attachment [shall be entitled to
have an attachment issued forthwith] for the [such] witness.
SECTION 8. Article 24.14, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.14. ATTACHMENT FOR RESIDENT WITNESS. (a) When a
witness resides in the county of the prosecution, regardless of
whether the witness [he] has disobeyed a subpoena [or not], either
in term time [term-time] or vacation, [upon the filing of an
affidavit with the clerk by] the defendant or State's counsel may
request that the court issue an attachment for the witness by filing
an affidavit with the clerk of the court stating[,] that the affiant
[he] has good reason to believe, and does believe, that the [such]
witness is a material witness[,] and is about to move out of the
county.
(b) If an attachment is issued under this article,
regardless of whether the case involves a felony or [the clerk shall
forthwith issue an attachment for such witness; provided, that in]
misdemeanor [cases], when the witness makes oath that the witness
[he] cannot give surety, the officer executing the attachment shall
take the witness's [his] personal bond.
SECTION 9. Article 24.15, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.15. TO SECURE ATTENDANCE BEFORE GRAND JURY. At any
time before the first day of any term of the district court, the
clerk, on [upon] application of the State's attorney, shall issue a
subpoena for any witness who resides in the county. If at the time
the [such] application is made, the [such] attorney files a sworn
application that the attorney [he] has good reason to believe and
does believe that the [such] witness is about to move out of the
county, then the district judge may [said clerk shall] issue an
attachment for the [such] witness to be and appear before the [said]
district court on the first day of the term [thereof] to testify as
a witness before the grand jury. Any witness so summoned, or
attached, who fails [shall fail] or refuses [refuse] to obey a
subpoena or attachment, shall be punished by the court by a fine not
exceeding five hundred dollars, to be collected as fines and costs
in other criminal cases.
SECTION 10. Article 24.22, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.22. WITNESS FINED AND ATTACHED. (a) If a witness
summoned from outside [without] the county refuses to obey a
subpoena, the witness [he] shall be fined by the court or magistrate
not exceeding five hundred dollars, which fine and judgment shall
be final, unless set aside after due notice to show cause why it
should not be final, which notice may immediately issue, requiring
the defaulting witness to appear at once or at the next term of the
[said] court, in the discretion of the magistrate issuing the
subpoena [judge], to answer for the [such] default.
(b) The court may cause to be issued at the same time an
attachment for the [said] witness, directed to the proper county,
commanding the officer to whom the attachment [said writ] is
directed to take the [said] witness into custody and have the
witness [him] before the [said] court at the time specified [named]
in the attachment [said writ]; in which case the [such] witness
shall receive no fees, unless it appears to the court that the
[such] disobedience is excusable, when the witness may receive the
same pay as if the witness [he] had not been attached.
(c) The [Said] fine when made final and all related costs
[thereon] shall be collected in the same manner as in other criminal
cases. The [Said] fine and judgment may be set aside in vacation or
at the time or any subsequent term of the court for good cause
shown, after the witness testifies or has been discharged.
(d) The following words shall be written or printed on the
face of a [such] subpoena for an out-of-county witness [out-county
witnesses]: "A disobedience of this subpoena is punishable by fine
not exceeding five hundred dollars, to be collected as fines and
costs in other criminal cases."
SECTION 11. Section 71.034(e), Government Code, is amended
to read as follows:
(e) In addition to the information described by Subsection
(a), the council shall include in the report a summary of
information provided to the council during the preceding year under
Articles [Article] 2.211 and 2.212, Code of Criminal Procedure.
SECTION 12. The change in law made by this Act applies only
to a writ of attachment issued on or after the effective date of
this Act. A writ of attachment issued before the effective date of
this Act is governed by the law in effect on the date the writ was
issued, and the former law is continued in effect for that purpose.
SECTION 13. This Act takes effect September 1, 2017.