By: Whitmire S.B. No. 291
(In the Senate - Filed December 13, 2016; January 30, 2017,
read first time and referred to Committee on Criminal Justice;
March 29, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 0, 1 present not
voting; March 29, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 291 By: Burton
A BILL TO BE ENTITLED
AN ACT
relating to the issuance of a writ of attachment for certain
witnesses.
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 24.011, Code of Criminal Procedure, is
amended by adding Subsection (b-1) to read as follows:
(b-1) If the defendant or the attorney representing the
state requests the issuance of an attachment under this article,
other than an attachment for a witness described by Subsection (c),
the request must include the applicable affidavit described by
Article 24.12.
SECTION 3. 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 CERTAIN
WRITS OF ATTACHMENT. (a) This article applies only to an
attachment that is requested to be issued under:
(1) Article 24.011, if an affidavit is required under
Article 24.011(b-1); or
(2) Article 24.12, 24.14, or 24.22.
(b) Notwithstanding any other law, a writ of attachment to
which this article applies may only be issued by the judge of the
court in which the witness is to testify if the judge determines,
after a hearing, that the issuance of the attachment is in the best
interest of justice.
(c) In making a determination under Subsection (b), the
judge shall consider the affidavit of the attorney representing the
state or the defendant, as applicable, that was submitted with the
request for the issuance of the attachment.
(d) The court shall appoint an attorney to represent the
witness at the hearing under Subsection (b), including a hearing
conducted outside the presence of the witness.
SECTION 4. 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 attorney representing the state [State] or
the defendant may request that the court issue an attachment [shall
be entitled to have an attachment issued forthwith] for the [such]
witness. The request must be filed with the clerk of the court and
must include an affidavit of the attorney representing the state or
the defendant, as applicable, stating that the affiant has good
reason to believe, and does believe, that the witness is a material
witness.
SECTION 5. Article 24.14, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.14. ATTACHMENT FOR RESIDENT WITNESS.
(a) Regardless of whether the witness has disobeyed a subpoena, if
[When] a witness who resides in the county of the prosecution may be
about to move out of the county, [whether he has disobeyed a
subpoena or not, either in term-time or vacation, upon the filing of
an affidavit with the clerk by] the defendant or the attorney
representing the state may request that the court issue an
attachment for the witness. The request must be filed with the
clerk of the court and must include the applicable affidavit
described by Article 24.12, except that the affidavit must
additionally state [State's counsel,] 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 in a[, the
clerk shall forthwith issue an attachment for such witness;
provided, that in] misdemeanor case [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 6. 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) At the time a fine is imposed under Subsection (a), on
request of the defendant or the attorney representing the state,
the [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) A request for the issuance of an attachment under
Subsection (b) must include the applicable affidavit described by
Article 24.12.
(d) 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.
(e) 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 7. Chapter 24, Code of Criminal Procedure, is
amended by adding Articles 24.221 and 24.222 to read as follows:
Art. 24.221. AFFIDAVIT REGARDING CONFINEMENT. As soon as
practicable after the sheriff takes custody of a witness pursuant
to an attachment issued as provided by Article 24.111, the sheriff
shall submit an affidavit to the issuing court stating that the
sheriff has taken custody of the witness.
Art. 24.222. HEARING DURING CONFINEMENT OF WITNESS. (a) A
witness who has been confined for five or more days pursuant to an
attachment issued as provided by Article 24.111 may request a
hearing in the issuing court regarding whether the continued
confinement of the witness is necessary. The court shall grant the
request and hold the hearing as soon as practicable.
(b) Any subsequent request for a hearing may be granted only
if the court determines that holding the hearing is in the best
interest of justice.
(c) The attorney appointed for the witness under Article
24.111 shall represent the witness at a hearing under this article.
SECTION 8. 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 9. 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 10. This Act takes effect September 1, 2017.
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