85S10745 AJZ-F
By: Thompson of Harris H.B. No. 332
A BILL TO BE ENTITLED
AN ACT
relating to grand jury proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 20.011(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Only the following persons may be present in a grand
jury room while the grand jury is conducting proceedings:
(1) grand jurors;
(2) bailiffs;
(3) the attorney representing the state;
(4) witnesses while being examined or when necessary
to assist the attorney representing the state in examining other
witnesses or presenting evidence to the grand jury;
(5) interpreters, if necessary;
(6) a stenographer or person operating an electronic
recording device, as provided by Article 20.012; [and]
(7) a person operating a video teleconferencing system
for use under Article 20.151; and
(8) an attorney representing a witness, including a
witness who is an accused or suspected person, during the time the
witness is being examined or offering testimony to the grand jury
and for the sole purpose of providing consultation in the manner
described by Article 20.03(c).
SECTION 2. Article 20.012, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.012. RECORDING OF GRAND JURY PROCEEDINGS [CERTAIN
TESTIMONY]. (a) Except as otherwise provided by this subsection
and Subsection (b), all statements made by the grand jury or the
attorney representing the state, all questions [Questions]
propounded by the grand jury or the attorney representing the state
to a witness, including a witness who is an [person] accused or
suspected person, and all [the] testimony of a witness, including a
witness who is an accused or suspected [that] person, to the grand
jury shall be recorded either by a stenographer or by use of an
electronic device capable of recording sound. Deliberations of the
grand jury may not be recorded.
(b) If the highest category of offense subject to indictment
in the grand jury proceedings is punishable as a state jail felony,
only questions propounded by the grand jury or the attorney
representing the state to an accused or suspected person and the
testimony of that person to the grand jury are required to be
recorded.
(c) The validity of [a] grand jury proceedings [proceeding]
is not affected by an unintentional failure to record all or part of
the proceedings as required by this article [questions propounded
or testimony made under Subsection (a)].
(d) [(c)] The clerk of the court [attorney representing the
state] shall maintain possession of all records [other than
stenographer's notes] made under this article and any typewritten
transcription of those records, and may not release any record of
the proceedings unless authorized by Article 20.036 [, except as
provided by Article 20.02].
SECTION 3. Chapter 20, Code of Criminal Procedure, is
amended by adding Article 20.013 to read as follows:
Art. 20.013. WHO MAY BE INVESTIGATED. (a) Except as
provided by Subsection (b), a grand jury may not investigate a
person who is accused or suspected of an offense and may not vote to
present an indictment for the offense if the person has previously
been investigated by a grand jury for the same offense and that
grand jury found no bill of indictment.
(b) A grand jury may investigate, and may present an
indictment with respect to, a person described by Subsection (a)
only if the attorney representing the state establishes in an ex
parte hearing that it is in the interest of justice for the person
to be investigated by a subsequent grand jury for the same offense.
(c) A motion to set aside an indictment due to a violation of
this article must be filed in writing not later than the 45th day
after the date the presentment of the indictment is entered in the
record under Article 20.22, unless the defendant demonstrates that
the defendant did not have a previous opportunity to challenge the
grand jury investigation based on the violation of this article.
SECTION 4. Article 20.02, Code of Criminal Procedure, is
amended by amending Subsections (f), (g), and (h) and adding
Subsection (i) to read as follows:
(f) A person who receives information under Article 20.036
[Subsection (d) or (e)] and discloses that information in a manner
not authorized by that article is subject to punishment for
contempt in the same manner as a person who violates Subsection (b).
(g) The attorney representing the state may not disclose
anything transpiring before the grand jury except as:
(1) permitted by Subsection [Subsections] (c); or
(2) provided by Article 20.036[, (d), and (e)].
(h) A subpoena or summons relating to a grand jury
proceeding or investigation must be kept secret to the extent and
for as long as necessary to prevent the unauthorized disclosure of a
matter before the grand jury. This subsection may not be construed
to limit a disclosure under [permitted by] Subsection (c) or
Article 20.036 [, (d), or (e)].
(i) Except as provided by Article 20.036, an attorney
representing a witness may not disclose anything transpiring before
the grand jury. An attorney who discloses information in violation
of this subsection is subject to punishment for contempt in the same
manner as a person who violates Subsection (b).
SECTION 5. Article 20.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.03. ATTORNEY [REPRESENTING STATE] ENTITLED TO
APPEAR. (a) In this chapter, "attorney ["The attorney]
representing the state [State]" means the attorney general
[Attorney General], district attorney, criminal district attorney,
or county attorney.
(b) The attorney representing the state [State,] is
entitled to go before the grand jury and inform the grand jurors
[them] of offenses liable to indictment at any time except when the
grand jury is:
(1) [they are] discussing the propriety of finding an
indictment; or
(2) voting on an indictment [upon the same].
(c) A witness who testifies before a grand jury, including a
witness who is an accused or suspected person, is entitled to have
an attorney present while the grand jury is questioning the witness
or while the witness is otherwise providing testimony to the grand
jury. The grand jury shall permit the witness to interrupt the
questioning at any time so that the witness may consult with the
attorney outside the hearing of the grand jury.
(d) An attorney representing a witness, including a witness
who is an accused or suspected person, may only speak to the person
the attorney represents and may not speak to the grand jury
regarding the grand jury investigation.
SECTION 6. Chapter 20, Code of Criminal Procedure, is
amended by adding Articles 20.035, 20.036, and 20.037 to read as
follows:
Art. 20.035. PRESENTATION OF EXCULPATORY EVIDENCE BY STATE.
(a) The attorney representing the state shall present to a grand
jury investigating an offense any evidence that tends to negate the
guilt of the accused or suspected person and is in the possession,
custody, or control of the attorney.
(b) Evidence described by Subsection (a) may be presented to
the grand jury at any time during the investigation.
(c) A motion to set aside an indictment based on a failure to
present exculpatory evidence to the grand jury in violation of this
article must be filed in writing not later than the 60th day after
the date the presentment of the indictment is entered in the record
under Article 20.22, unless the defendant demonstrates that the
defendant did not have a previous opportunity to challenge the
failure to present the exculpatory evidence to the grand jury.
Art. 20.036. DISCLOSURE OF TRANSCRIPT OF GRAND JURY
PROCEEDINGS. (a) The accused or suspected person or the attorney
representing the state may request from the clerk of the court a
copy of the transcript retained under Article 20.012(d), not later
than the 20th day after the date the presentment of the indictment
is entered in the record under Article 20.22, unless good cause is
shown for a late request.
(b) On receiving a request under Subsection (a), the clerk
of the court shall transcribe the recording, if necessary, and
deliver the transcript to the attorney representing the state.
(c) On receiving the transcript from the clerk of the court
under Subsection (b), the attorney representing the state shall:
(1) after considering the security and privacy
interests of each witness or victim, redact any portion of the
transcript that includes identifying information of a witness or
victim with a privacy or security concern, including:
(A) the name of the witness or victim;
(B) the address, telephone number, driver's
license number, social security number, date of birth, or bank
account information of the witness or victim; and
(C) any other information that by reference would
make it possible to identify the witness or victim; and
(2) deliver the transcript to the accused or suspected
person.
(d) On request of the accused or suspected person, the court
shall conduct a hearing to determine whether redaction was
authorized under Subsection (c)(1) or other law.
(e) The accused or suspected person shall pay any necessary
costs incurred by the clerk of the court in transcribing a recording
in response to a request submitted by the person. The court may
waive the costs if the court determines that the person is indigent
or demonstrates an inability to pay.
(f) The attorney representing the state, the accused or
suspected person, or the attorney representing the accused or
suspected person may disclose the contents of a transcript of a
grand jury proceeding obtained under this article during a criminal
proceeding that arises from the grand jury proceeding.
(g) Except as otherwise authorized by Subsection (f), the
accused or suspected person, the attorney representing the accused
or suspected person, or an investigator, expert, consulting legal
counsel, or other agent of the attorney representing the accused or
suspected person may not disclose to a third party a transcript
received under this article unless:
(1) for good cause, a court orders the disclosure
after notice and a hearing and after considering the security and
privacy interests of any witness or victim; or
(2) the transcript has already been publicly
disclosed.
Art. 20.037. SCOPE OF GRAND JURY INVESTIGATION. (a) A
grand jury may only investigate whether there is probable cause to
believe that an offense has been committed by an accused or
suspected person. The grand jury may not subpoena a document or
witness unless the grand jury has reason to believe that the
document or witness is relevant to the investigation.
(b) Grand jury testimony of a witness who is questioned in
violation of Subsection (a) may not be used by the state in any
subsequent legal proceeding, unless the testimony is introduced by
the defendant in the proceeding.
SECTION 7. Article 20.17(c), Code of Criminal Procedure, is
amended to read as follows:
(c) If an accused or suspected person is subpoenaed to
appear before a grand jury prior to any questions before the grand
jury, the person accused or suspected shall be orally warned as
follows:
(1) "Your testimony before this grand jury is under
oath";
(2) "Any material question that is answered falsely
before this grand jury subjects you to being prosecuted for
aggravated perjury";
(3) "You have the right to refuse to make answers to
any question, the answer to which would incriminate you in any
manner";
(4) "During questioning by the grand jury and during
your testimony, you ["You] have the right to have an attorney [a
lawyer] present [outside this chamber] to advise you before making
answers to questions you feel might incriminate you";
(5) "Any testimony you give may be used against you at
any subsequent proceeding"; and
(6) "If you are unable to employ an attorney [a
lawyer], you have the right to have an attorney [a lawyer] appointed
to advise you before making an answer to a question, the answer to
which you feel might incriminate you."
SECTION 8. Article 20.18, Code of Criminal Procedure, is
amended to read as follows:
Art. 20.18. HOW WITNESS QUESTIONED. (a) Absent exigent
circumstances, a person who is subpoenaed to appear as a witness
before a grand jury shall be given a reasonable opportunity to
retain counsel and to consult with counsel before the person's
appearance.
(b) Before the grand jury may question the witness who is
not an accused or suspected person, a witness appearing before a
grand jury shall be orally given the warnings described by Article
20.17(c), other than the warning described by Article 20.17(c)(6).
(c) When a felony has been committed in any county within
the jurisdiction of the grand jury, and the name of the offender is
known or unknown or where it is uncertain when or how the felony was
committed, the grand jury shall first state to the witness called
the subject matter under investigation, then may ask pertinent
questions relative to the transaction in general terms and in such a
manner as to determine whether the witness [he] has knowledge of the
violation of any particular law by any person, and if so, by what
person.
SECTION 9. Article 27.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 27.03. MOTION TO SET ASIDE INDICTMENT. In addition to
any other grounds authorized by law, a motion to set aside an
indictment or information may be based on the following:
1. That it appears by the records of the court that the
indictment was not found by at least nine grand jurors, or that the
information was not based upon a valid complaint;
2. That some person not authorized by law was present when
the grand jury was deliberating upon the accusation against the
defendant, or was voting upon the same; [and]
3. That the grand jury was illegally impaneled; provided,
however, in order to raise such question on motion to set aside the
indictment, the defendant must show that he did not have an
opportunity to challenge the array at the time the grand jury was
impaneled;
4. That the grand jury improperly investigated a person in
violation of Article 20.013; or
5. That the attorney representing the state failed to
disclose exculpatory evidence in violation of Article 20.035.
SECTION 10. Articles 20.02(d) and (e), Code of Criminal
Procedure, are repealed.
SECTION 11. The change in law made by this Act applies to a
grand jury impaneled on or after the effective date of this Act. A
grand jury impaneled before the effective date of this Act is
governed by the law in effect on the date the grand jury was
impaneled, and the former law is continued in effect for that
purpose.
SECTION 12. This Act takes effect December 1, 2017.