Texas 2017 - 85th 1st C.S.

Texas House Bill HB332 Compare Versions

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

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1	1	85S10745 AJZ-F
2	2	By: Thompson of Harris H.B. No. 332
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to grand jury proceedings.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Article 20.011(a), Code of Criminal Procedure,
10	10	is amended to read as follows:
11	11	(a) Only the following persons may be present in a grand
12	12	jury room while the grand jury is conducting proceedings:
13	13	(1) grand jurors;
14	14	(2) bailiffs;
15	15	(3) the attorney representing the state;
16	16	(4) witnesses while being examined or when necessary
17	17	to assist the attorney representing the state in examining other
18	18	witnesses or presenting evidence to the grand jury;
19	19	(5) interpreters, if necessary;
20	20	(6) a stenographer or person operating an electronic
21	21	recording device, as provided by Article 20.012; [and]
22	22	(7) a person operating a video teleconferencing system
23	23	for use under Article 20.151; and
24	24	(8) an attorney representing a witness, including a
25	25	witness who is an accused or suspected person, during the time the
26	26	witness is being examined or offering testimony to the grand jury
27	27	and for the sole purpose of providing consultation in the manner
28	28	described by Article 20.03(c).
29	29	SECTION 2. Article 20.012, Code of Criminal Procedure, is
30	30	amended to read as follows:
31	31	Art. 20.012. RECORDING OF GRAND JURY PROCEEDINGS [CERTAIN
32	32	TESTIMONY]. (a) Except as otherwise provided by this subsection
33	33	and Subsection (b), all statements made by the grand jury or the
34	34	attorney representing the state, all questions [Questions]
35	35	propounded by the grand jury or the attorney representing the state
36	36	to a witness, including a witness who is an [person] accused or
37	37	suspected person, and all [the] testimony of a witness, including a
38	38	witness who is an accused or suspected [that] person, to the grand
39	39	jury shall be recorded either by a stenographer or by use of an
40	40	electronic device capable of recording sound. Deliberations of the
41	41	grand jury may not be recorded.
42	42	(b) If the highest category of offense subject to indictment
43	43	in the grand jury proceedings is punishable as a state jail felony,
44	44	only questions propounded by the grand jury or the attorney
45	45	representing the state to an accused or suspected person and the
46	46	testimony of that person to the grand jury are required to be
47	47	recorded.
48	48	(c) The validity of [a] grand jury proceedings [proceeding]
49	49	is not affected by an unintentional failure to record all or part of
50	50	the proceedings as required by this article [questions propounded
51	51	or testimony made under Subsection (a)].
52	52	(d) [(c)] The clerk of the court [attorney representing the
53	53	state] shall maintain possession of all records [other than
54	54	stenographer's notes] made under this article and any typewritten
55	55	transcription of those records, and may not release any record of
56	56	the proceedings unless authorized by Article 20.036 [, except as
57	57	provided by Article 20.02].
58	58	SECTION 3. Chapter 20, Code of Criminal Procedure, is
59	59	amended by adding Article 20.013 to read as follows:
60	60	Art. 20.013. WHO MAY BE INVESTIGATED. (a) Except as
61	61	provided by Subsection (b), a grand jury may not investigate a
62	62	person who is accused or suspected of an offense and may not vote to
63	63	present an indictment for the offense if the person has previously
64	64	been investigated by a grand jury for the same offense and that
65	65	grand jury found no bill of indictment.
66	66	(b) A grand jury may investigate, and may present an
67	67	indictment with respect to, a person described by Subsection (a)
68	68	only if the attorney representing the state establishes in an ex
69	69	parte hearing that it is in the interest of justice for the person
70	70	to be investigated by a subsequent grand jury for the same offense.
71	71	(c) A motion to set aside an indictment due to a violation of
72	72	this article must be filed in writing not later than the 45th day
73	73	after the date the presentment of the indictment is entered in the
74	74	record under Article 20.22, unless the defendant demonstrates that
75	75	the defendant did not have a previous opportunity to challenge the
76	76	grand jury investigation based on the violation of this article.
77	77	SECTION 4. Article 20.02, Code of Criminal Procedure, is
78	78	amended by amending Subsections (f), (g), and (h) and adding
79	79	Subsection (i) to read as follows:
80	80	(f) A person who receives information under Article 20.036
81	81	[Subsection (d) or (e)] and discloses that information in a manner
82	82	not authorized by that article is subject to punishment for
83	83	contempt in the same manner as a person who violates Subsection (b).
84	84	(g) The attorney representing the state may not disclose
85	85	anything transpiring before the grand jury except as:
86	86	(1) permitted by Subsection [Subsections] (c); or
87	87	(2) provided by Article 20.036[, (d), and (e)].
88	88	(h) A subpoena or summons relating to a grand jury
89	89	proceeding or investigation must be kept secret to the extent and
90	90	for as long as necessary to prevent the unauthorized disclosure of a
91	91	matter before the grand jury. This subsection may not be construed
92	92	to limit a disclosure under [permitted by] Subsection (c) or
93	93	Article 20.036 [, (d), or (e)].
94	94	(i) Except as provided by Article 20.036, an attorney
95	95	representing a witness may not disclose anything transpiring before
96	96	the grand jury. An attorney who discloses information in violation
97	97	of this subsection is subject to punishment for contempt in the same
98	98	manner as a person who violates Subsection (b).
99	99	SECTION 5. Article 20.03, Code of Criminal Procedure, is
100	100	amended to read as follows:
101	101	Art. 20.03. ATTORNEY [REPRESENTING STATE] ENTITLED TO
102	102	APPEAR. (a) In this chapter, "attorney ["The attorney]
103	103	representing the state [State]" means the attorney general
104	104	[Attorney General], district attorney, criminal district attorney,
105	105	or county attorney.
106	106	(b) The attorney representing the state [State,] is
107	107	entitled to go before the grand jury and inform the grand jurors
108	108	[them] of offenses liable to indictment at any time except when the
109	109	grand jury is:
110	110	(1) [they are] discussing the propriety of finding an
111	111	indictment; or
112	112	(2) voting on an indictment [upon the same].
113	113	(c) A witness who testifies before a grand jury, including a
114	114	witness who is an accused or suspected person, is entitled to have
115	115	an attorney present while the grand jury is questioning the witness
116	116	or while the witness is otherwise providing testimony to the grand
117	117	jury. The grand jury shall permit the witness to interrupt the
118	118	questioning at any time so that the witness may consult with the
119	119	attorney outside the hearing of the grand jury.
120	120	(d) An attorney representing a witness, including a witness
121	121	who is an accused or suspected person, may only speak to the person
122	122	the attorney represents and may not speak to the grand jury
123	123	regarding the grand jury investigation.
124	124	SECTION 6. Chapter 20, Code of Criminal Procedure, is
125	125	amended by adding Articles 20.035, 20.036, and 20.037 to read as
126	126	follows:
127	127	Art. 20.035. PRESENTATION OF EXCULPATORY EVIDENCE BY STATE.
128	128	(a) The attorney representing the state shall present to a grand
129	129	jury investigating an offense any evidence that tends to negate the
130	130	guilt of the accused or suspected person and is in the possession,
131	131	custody, or control of the attorney.
132	132	(b) Evidence described by Subsection (a) may be presented to
133	133	the grand jury at any time during the investigation.
134	134	(c) A motion to set aside an indictment based on a failure to
135	135	present exculpatory evidence to the grand jury in violation of this
136	136	article must be filed in writing not later than the 60th day after
137	137	the date the presentment of the indictment is entered in the record
138	138	under Article 20.22, unless the defendant demonstrates that the
139	139	defendant did not have a previous opportunity to challenge the
140	140	failure to present the exculpatory evidence to the grand jury.
141	141	Art. 20.036. DISCLOSURE OF TRANSCRIPT OF GRAND JURY
142	142	PROCEEDINGS. (a) The accused or suspected person or the attorney
143	143	representing the state may request from the clerk of the court a
144	144	copy of the transcript retained under Article 20.012(d), not later
145	145	than the 20th day after the date the presentment of the indictment
146	146	is entered in the record under Article 20.22, unless good cause is
147	147	shown for a late request.
148	148	(b) On receiving a request under Subsection (a), the clerk
149	149	of the court shall transcribe the recording, if necessary, and
150	150	deliver the transcript to the attorney representing the state.
151	151	(c) On receiving the transcript from the clerk of the court
152	152	under Subsection (b), the attorney representing the state shall:
153	153	(1) after considering the security and privacy
154	154	interests of each witness or victim, redact any portion of the
155	155	transcript that includes identifying information of a witness or
156	156	victim with a privacy or security concern, including:
157	157	(A) the name of the witness or victim;
158	158	(B) the address, telephone number, driver's
159	159	license number, social security number, date of birth, or bank
160	160	account information of the witness or victim; and
161	161	(C) any other information that by reference would
162	162	make it possible to identify the witness or victim; and
163	163	(2) deliver the transcript to the accused or suspected
164	164	person.
165	165	(d) On request of the accused or suspected person, the court
166	166	shall conduct a hearing to determine whether redaction was
167	167	authorized under Subsection (c)(1) or other law.
168	168	(e) The accused or suspected person shall pay any necessary
169	169	costs incurred by the clerk of the court in transcribing a recording
170	170	in response to a request submitted by the person. The court may
171	171	waive the costs if the court determines that the person is indigent
172	172	or demonstrates an inability to pay.
173	173	(f) The attorney representing the state, the accused or
174	174	suspected person, or the attorney representing the accused or
175	175	suspected person may disclose the contents of a transcript of a
176	176	grand jury proceeding obtained under this article during a criminal
177	177	proceeding that arises from the grand jury proceeding.
178	178	(g) Except as otherwise authorized by Subsection (f), the
179	179	accused or suspected person, the attorney representing the accused
180	180	or suspected person, or an investigator, expert, consulting legal
181	181	counsel, or other agent of the attorney representing the accused or
182	182	suspected person may not disclose to a third party a transcript
183	183	received under this article unless:
184	184	(1) for good cause, a court orders the disclosure
185	185	after notice and a hearing and after considering the security and
186	186	privacy interests of any witness or victim; or
187	187	(2) the transcript has already been publicly
188	188	disclosed.
189	189	Art. 20.037. SCOPE OF GRAND JURY INVESTIGATION. (a) A
190	190	grand jury may only investigate whether there is probable cause to
191	191	believe that an offense has been committed by an accused or
192	192	suspected person. The grand jury may not subpoena a document or
193	193	witness unless the grand jury has reason to believe that the
194	194	document or witness is relevant to the investigation.
195	195	(b) Grand jury testimony of a witness who is questioned in
196	196	violation of Subsection (a) may not be used by the state in any
197	197	subsequent legal proceeding, unless the testimony is introduced by
198	198	the defendant in the proceeding.
199	199	SECTION 7. Article 20.17(c), Code of Criminal Procedure, is
200	200	amended to read as follows:
201	201	(c) If an accused or suspected person is subpoenaed to
202	202	appear before a grand jury prior to any questions before the grand
203	203	jury, the person accused or suspected shall be orally warned as
204	204	follows:
205	205	(1) "Your testimony before this grand jury is under
206	206	oath";
207	207	(2) "Any material question that is answered falsely
208	208	before this grand jury subjects you to being prosecuted for
209	209	aggravated perjury";
210	210	(3) "You have the right to refuse to make answers to
211	211	any question, the answer to which would incriminate you in any
212	212	manner";
213	213	(4) "During questioning by the grand jury and during
214	214	your testimony, you ["You] have the right to have an attorney [a
215	215	lawyer] present [outside this chamber] to advise you before making
216	216	answers to questions you feel might incriminate you";
217	217	(5) "Any testimony you give may be used against you at
218	218	any subsequent proceeding"; and
219	219	(6) "If you are unable to employ an attorney [a
220	220	lawyer], you have the right to have an attorney [a lawyer] appointed
221	221	to advise you before making an answer to a question, the answer to
222	222	which you feel might incriminate you."
223	223	SECTION 8. Article 20.18, Code of Criminal Procedure, is
224	224	amended to read as follows:
225	225	Art. 20.18. HOW WITNESS QUESTIONED. (a) Absent exigent
226	226	circumstances, a person who is subpoenaed to appear as a witness
227	227	before a grand jury shall be given a reasonable opportunity to
228	228	retain counsel and to consult with counsel before the person's
229	229	appearance.
230	230	(b) Before the grand jury may question the witness who is
231	231	not an accused or suspected person, a witness appearing before a
232	232	grand jury shall be orally given the warnings described by Article
233	233	20.17(c), other than the warning described by Article 20.17(c)(6).
234	234	(c) When a felony has been committed in any county within
235	235	the jurisdiction of the grand jury, and the name of the offender is
236	236	known or unknown or where it is uncertain when or how the felony was
237	237	committed, the grand jury shall first state to the witness called
238	238	the subject matter under investigation, then may ask pertinent
239	239	questions relative to the transaction in general terms and in such a
240	240	manner as to determine whether the witness [he] has knowledge of the
241	241	violation of any particular law by any person, and if so, by what
242	242	person.
243	243	SECTION 9. Article 27.03, Code of Criminal Procedure, is
244	244	amended to read as follows:
245	245	Art. 27.03. MOTION TO SET ASIDE INDICTMENT. In addition to
246	246	any other grounds authorized by law, a motion to set aside an
247	247	indictment or information may be based on the following:
248	248	1. That it appears by the records of the court that the
249	249	indictment was not found by at least nine grand jurors, or that the
250	250	information was not based upon a valid complaint;
251	251	2. That some person not authorized by law was present when
252	252	the grand jury was deliberating upon the accusation against the
253	253	defendant, or was voting upon the same; [and]
254	254	3. That the grand jury was illegally impaneled; provided,
255	255	however, in order to raise such question on motion to set aside the
256	256	indictment, the defendant must show that he did not have an
257	257	opportunity to challenge the array at the time the grand jury was
258	258	impaneled;
259	259	4. That the grand jury improperly investigated a person in
260	260	violation of Article 20.013; or
261	261	5. That the attorney representing the state failed to
262	262	disclose exculpatory evidence in violation of Article 20.035.
263	263	SECTION 10. Articles 20.02(d) and (e), Code of Criminal
264	264	Procedure, are repealed.
265	265	SECTION 11. The change in law made by this Act applies to a
266	266	grand jury impaneled on or after the effective date of this Act. A
267	267	grand jury impaneled before the effective date of this Act is
268	268	governed by the law in effect on the date the grand jury was
269	269	impaneled, and the former law is continued in effect for that
270	270	purpose.
271	271	SECTION 12. This Act takes effect December 1, 2017.