Texas 2019 - 86th Regular

Texas House Bill HB2398 Compare Versions

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

Old	New	Differences
1	1	86R2437 AJZ-D
2	2	By: Thompson of Harris H.B. No. 2398
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to grand jury proceedings; providing a punishment for
8	8	contempt of court.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 20.011(a), Code of Criminal Procedure,
11	11	is amended to read as follows:
12	12	(a) Only the following persons may be present in a grand
13	13	jury room while the grand jury is conducting proceedings:
14	14	(1) grand jurors;
15	15	(2) bailiffs;
16	16	(3) the attorney representing the state;
17	17	(4) witnesses while being examined or when necessary
18	18	to assist the attorney representing the state in examining other
19	19	witnesses or presenting evidence to the grand jury;
20	20	(5) interpreters, if necessary;
21	21	(6) a stenographer or person operating an electronic
22	22	recording device, as provided by Article 20.012; [and]
23	23	(7) a person operating a video teleconferencing system
24	24	for use under Article 20.151; and
25	25	(8) an attorney representing a witness, including a
26	26	witness who is an accused or suspected person, during the time the
27	27	witness is being examined or offering testimony to the grand jury
28	28	and for the sole purpose of providing consultation in the manner
29	29	described by Article 20.03(c).
30	30	SECTION 2. The heading to Article 20.012, Code of Criminal
31	31	Procedure, is amended to read as follows:
32	32	Art. 20.012. RECORDING OF GRAND JURY PROCEEDINGS [CERTAIN
33	33	TESTIMONY].
34	34	SECTION 3. Articles 20.012(a) and (b), Code of Criminal
35	35	Procedure, are amended to read as follows:
36	36	(a) Except as otherwise provided by this subsection, all
37	37	statements made by the grand jury or the attorney representing the
38	38	state, all questions [Questions] propounded by the grand jury or
39	39	the attorney representing the state to a witness, [person accused
40	40	or suspected] and all [the] testimony of a witness [that person] to
41	41	the grand jury shall be recorded either by a stenographer or by use
42	42	of an electronic device capable of recording sound. Deliberations
43	43	of the grand jury may not be recorded.
44	44	(b) The validity of a grand jury proceeding is not affected
45	45	by an unintentional failure to record all or part of the proceedings
46	46	as required by [questions propounded or testimony made under]
47	47	Subsection (a).
48	48	SECTION 4. Chapter 20, Code of Criminal Procedure, is
49	49	amended by adding Article 20.013 to read as follows:
50	50	Art. 20.013. WHO MAY BE INVESTIGATED. (a) Except as
51	51	provided by Subsection (b), a grand jury may not investigate a
52	52	person who is accused or suspected of an offense and may not vote to
53	53	present an indictment for the offense if the person has previously
54	54	been investigated by a grand jury for the same offense and that
55	55	grand jury found no bill of indictment.
56	56	(b) A grand jury may investigate, and may present an
57	57	indictment with respect to, a person described by Subsection (a)
58	58	only if the attorney representing the state presents material
59	59	evidence that was not known to the state before or during the
60	60	previous grand jury investigation.
61	61	SECTION 5. Article 20.02, Code of Criminal Procedure, is
62	62	amended by amending Subsections (f), (g), and (h) and adding
63	63	Subsection (i) to read as follows:
64	64	(f) A person who receives information under Article 20.036
65	65	[Subsection (d) or (e)] and discloses that information in a manner
66	66	not authorized by that article is subject to punishment for
67	67	contempt in the same manner as a person who violates Subsection (b).
68	68	(g) The attorney representing the state may not disclose
69	69	anything transpiring before the grand jury except as:
70	70	(1) permitted by Subsection [Subsections] (c); or
71	71	(2) provided by Article 20.036[, (d), and (e)].
72	72	(h) A subpoena or summons relating to a grand jury
73	73	proceeding or investigation must be kept secret to the extent and
74	74	for as long as necessary to prevent the unauthorized disclosure of a
75	75	matter before the grand jury. This subsection may not be construed
76	76	to limit a disclosure permitted by Subsection (c) or provided by
77	77	Article 20.036 [, (d), or (e)].
78	78	(i) Except as provided by Article 20.036, an attorney
79	79	representing a witness may not disclose anything transpiring before
80	80	the grand jury. An attorney who discloses information in violation
81	81	of this subsection is subject to punishment for contempt in the same
82	82	manner as a person who violates Subsection (b).
83	83	SECTION 6. Article 20.03, Code of Criminal Procedure, is
84	84	amended to read as follows:
85	85	Art. 20.03. ATTORNEY [REPRESENTING STATE] ENTITLED TO
86	86	APPEAR. (a) In this chapter, "attorney ["The attorney]
87	87	representing the state [State]" means the attorney general
88	88	[Attorney General], district attorney, criminal district attorney,
89	89	or county attorney.
90	90	(b) The attorney representing the state [State,] is
91	91	entitled to go before the grand jury and inform the grand jurors
92	92	[them] of offenses liable to indictment at any time except when the
93	93	grand jury is:
94	94	(1) [they are] discussing the propriety of finding an
95	95	indictment; or
96	96	(2) voting on an indictment [upon the same].
97	97	(c) A witness who testifies before a grand jury, including a
98	98	witness who is an accused or suspected person, is entitled to have
99	99	an attorney present while the grand jury is questioning the
100	100	witness. The grand jury shall permit the attorney or the witness to
101	101	interrupt the questioning at any time so that the witness may
102	102	consult with the attorney outside the hearing of the grand jury.
103	103	SECTION 7. Chapter 20, Code of Criminal Procedure, is
104	104	amended by adding Articles 20.035 and 20.036 to read as follows:
105	105	Art. 20.035. PRESENTATION OF EXCULPATORY EVIDENCE BY STATE.
106	106	(a) The attorney representing the state shall present to a grand
107	107	jury investigating an offense any evidence that is:
108	108	(1) favorable to the accused or suspected person;
109	109	(2) material to the offense being investigated; and
110	110	(3) in the possession, custody, or control of the
111	111	state or any person under contract with the state.
112	112	(b) Evidence described by Subsection (a) may be presented to
113	113	the grand jury at any time during the investigation.
114	114	Art. 20.036. DISCOVERY. (a) Except as otherwise provided
115	115	by this article, if the state provides notice to the accused or
116	116	suspected person of the grand jury investigation, as soon as
117	117	practicable after receiving a request from an accused or suspected
118	118	person, the attorney representing the state shall produce and
119	119	permit the inspection and the electronic duplication, copying, and
120	120	photographing, by or on behalf of the accused or suspected person,
121	121	of any:
122	122	(1) offense reports, designated documents, or
123	123	designated papers arising from the alleged offense;
124	124	(2) designated written or recorded statements of the
125	125	accused or suspected person or a witness that arise from the alleged
126	126	offense, including witness statements of law enforcement officers;
127	127	and
128	128	(3) designated books, accounts, letters, photographs,
129	129	or objects or other tangible things that:
130	130	(A) are not otherwise privileged;
131	131	(B) constitute or contain evidence material to
132	132	any matter involved in the grand jury investigation; and
133	133	(C) are in the possession, custody, or control of
134	134	the state or any person under contract with the state.
135	135	(b) Subsection (a) does not authorize the removal of
136	136	documents, items, or information from the possession of the state,
137	137	and any inspection shall be in the presence of a representative of
138	138	the state.
139	139	(c) In the case of a pro se accused or suspected person, the
140	140	state shall permit the inspection or review of the document, item,
141	141	or information as provided by Subsection (a), but is not required to
142	142	allow electronic duplication as described by that subsection.
143	143	(d) The attorney representing the state may provide to any
144	144	accused or suspected person electronic duplicates of any document,
145	145	item, or information described by Subsection (a).
146	146	(e) Subsection (a) does not authorize the disclosure of:
147	147	(1) the work product of the attorney representing the
148	148	state in the investigation; or
149	149	(2) the work product of the state's investigators,
150	150	including the investigator's notes or reports.
151	151	(f) The rights granted to the accused or suspected person
152	152	under Subsection (a) do not extend to written communications
153	153	between the state and an agent, representative, or employee of the
154	154	state.
155	155	(g) If only a portion of the applicable document, item, or
156	156	information is subject to discovery under this article, the state
157	157	is not required to produce or permit the inspection of the remaining
158	158	portion that is not subject to discovery and may withhold or redact
159	159	that portion. The state shall inform the accused or suspected
160	160	person that a portion of the document, item, or information has been
161	161	withheld or redacted.
162	162	(h) The accused or suspected person, the attorney
163	163	representing the accused or suspected person, or an investigator,
164	164	expert, consulting legal counsel, or other agent of the attorney
165	165	representing the accused or suspected person may not disclose to a
166	166	third party any documents, evidence, materials, or witness
167	167	statements received under this article unless:
168	168	(1) a court orders the disclosure after notice and
169	169	hearing, on a showing of good cause and after considering the
170	170	security and privacy interests of any victim or witness; or
171	171	(2) the documents, evidence, materials, or witness
172	172	statements have already been publicly disclosed.
173	173	(i) Notwithstanding any other provision of this article,
174	174	information identifying any victim or witness, including the name
175	175	of a victim or witness and including the address, telephone number,
176	176	driver's license number, social security number, date of birth, or
177	177	bank account information or any other information that by reference
178	178	would make it possible to identify a victim or witness, is
179	179	confidential and may not be disclosed unless the disclosure is
180	180	ordered by the court under Subsection (h) or otherwise required by
181	181	Subsection (j).
182	182	(j) Notwithstanding any other provision of this article,
183	183	the state shall disclose to the accused or suspected person any
184	184	exculpatory, impeachment, or mitigating document, item, or
185	185	information that is in the possession, custody, or control of the
186	186	state or any person under contract with the state that tends to
187	187	negate the guilt of the accused or suspected person or would tend to
188	188	reduce the punishment for the offense being investigated.
189	189	(k) The state shall electronically record or otherwise
190	190	document any document, item, or other information provided to the
191	191	accused or suspected person under this article.
192	192	(l) A court may order the accused or suspected person to pay
193	193	costs related to discovery under this article, not to exceed the
194	194	amounts authorized to be charged by Subchapter F, Chapter 552,
195	195	Government Code, for providing public information.
196	196	(m) Except as provided by Subsection (i), this article does
197	197	not prohibit the attorney representing the state from providing
198	198	discovery and documentation beyond that required by this article.
199	199	(n) This article applies only to discovery for a grand jury
200	200	investigation. This article does not limit an accused or suspected
201	201	person's right to discovery authorized by other law.
202	202	SECTION 8. Article 20.17(c), Code of Criminal Procedure, is
203	203	amended to read as follows:
204	204	(c) If an accused or suspected person is subpoenaed to
205	205	appear before a grand jury prior to any questions before the grand
206	206	jury, the person accused or suspected shall be orally warned as
207	207	follows:
208	208	(1) "Your testimony before this grand jury is under
209	209	oath";
210	210	(2) "Any material question that is answered falsely
211	211	before this grand jury subjects you to being prosecuted for
212	212	aggravated perjury";
213	213	(3) "You have the right to refuse to make answers to
214	214	any question, the answer to which would incriminate you in any
215	215	manner";
216	216	(4) "During questioning, you ["You] have the right to
217	217	have an attorney [a lawyer] present [outside this chamber] to
218	218	advise you before making answers to questions you feel might
219	219	incriminate you";
220	220	(5) "Any testimony you give may be used against you at
221	221	any subsequent proceeding";
222	222	(6) "If you are unable to employ an attorney [a
223	223	lawyer], you have the right to have an attorney [a lawyer] appointed
224	224	to advise you before making an answer to a question, the answer to
225	225	which you feel might incriminate you."
226	226	SECTION 9. Article 20.18, Code of Criminal Procedure, is
227	227	amended to read as follows:
228	228	Art. 20.18. HOW WITNESS QUESTIONED. (a) A person who is
229	229	subpoenaed to appear as a witness before a grand jury shall be given
230	230	a reasonable opportunity to retain counsel and to consult with
231	231	counsel before the person's appearance.
232	232	(b) Before the grand jury may question the witness, a
233	233	witness appearing before a grand jury shall be orally given the
234	234	warnings described by Article 20.17(c), other than the warning
235	235	described by Article 20.17(c)(6).
236	236	(c) When a felony has been committed in any county within
237	237	the jurisdiction of the grand jury, and the name of the offender is
238	238	known or unknown or where it is uncertain when or how the felony was
239	239	committed, the grand jury shall first state to the witness called
240	240	the subject matter under investigation, then may ask pertinent
241	241	questions relative to the transaction in general terms and in such a
242	242	manner as to determine whether the witness [he] has knowledge of the
243	243	violation of any particular law by any person, and if so, by what
244	244	person.
245	245	SECTION 10. Subtitle A, Title 2, Civil Practice and
246	246	Remedies Code, is amended by adding Chapter 14A to read as follows:
247	247	CHAPTER 14A. GRAND JURY LITIGATION
248	248	Sec. 14A.001. RECOVERY OF ATTORNEY'S FEES AND RELATED
249	249	EXPENSES; WAIVER OF IMMUNITY. (a) Not later than the 30th day
250	250	after the date of the grand jury vote under Article 20.19, Code of
251	251	Criminal Procedure, the accused or suspected person may submit to
252	252	the court an application to recover attorney's fees and other
253	253	related expenses. The application must:
254	254	(1) allege that the position of the attorney
255	255	representing the state was:
256	256	(A) not substantially justified; and
257	257	(B) vexatious, frivolous, or in bad faith; and
258	258	(2) show the amount of attorney's fees and other
259	259	related expenses incurred by the accused or suspected person during
260	260	the grand jury investigation, including an itemized statement
261	261	submitted by any attorney representing the accused or suspected
262	262	person or any expert witness testifying on behalf of the accused or
263	263	suspected person and showing:
264	264	(A) the time actually expended; and
265	265	(B) the rate at which the fees and other expenses
266	266	were calculated.
267	267	(b) The court may award reasonable attorney's fees and other
268	268	related expenses to the accused or suspected person if the court:
269	269	(1) finds that the position of the attorney
270	270	representing the state was not substantially justified, based on
271	271	the record made in the grand jury investigation for which
272	272	attorney's fees and other related expenses are requested;
273	273	(2) finds that the position of the attorney
274	274	representing the state was vexatious, frivolous, or in bad faith;
275	275	and
276	276	(3) does not find that special circumstances make the
277	277	award unjust.
278	278	(c) To determine whether the position of the attorney
279	279	representing the state was vexatious, frivolous, or in bad faith,
280	280	the court, for good cause shown, may receive evidence ex parte and
281	281	in camera, including evidence that reveals or might reveal the
282	282	identity of an informant or undercover agent or matters occurring
283	283	before a grand jury. The court shall keep evidence received under
284	284	this subsection under seal.
285	285	(d) The attorney representing the state shall pay
286	286	attorney's fees and other related expenses awarded under this
287	287	section.
288	288	(e) Governmental immunity is waived and abolished to the
289	289	extent of liability for attorney's fees and other related expenses
290	290	under this section.
291	291	SECTION 11. Articles 20.02(d) and (e), Code of Criminal
292	292	Procedure, are repealed.
293	293	SECTION 12. The changes in law made by this Act apply only
294	294	to a grand jury proceeding that begins on or after the effective
295	295	date of this Act. A grand jury proceeding that begins before the
296	296	effective date of this Act is governed by the law in effect on the
297	297	date the proceeding began, and the former law is continued in effect
298	298	for that purpose.
299	299	SECTION 13. This Act takes effect September 1, 2019.