Texas 2023 - 88th Regular

Texas House Bill HB1258 Compare Versions

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1	1	88R4510 AJZ-D
2	2	By: Thompson of Harris H.B. No. 1258
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. Subchapter A, Chapter 20A, Code of Criminal
11	11	Procedure, is amended by adding Article 20A.002 to read as follows:
12	12	Art. 20A.002. WHO MAY BE INVESTIGATED. (a) Except as
13	13	provided by Subsection (b), a grand jury may not investigate a
14	14	person who is accused or suspected of an offense and may not vote to
15	15	present an indictment for the offense if the person has previously
16	16	been investigated by a grand jury for the same offense and that
17	17	grand jury found no bill of indictment.
18	18	(b) A grand jury may investigate, and may present an
19	19	indictment with respect to, a person described by Subsection (a)
20	20	only if the attorney representing the state presents material
21	21	evidence that was not known to the state before or during the
22	22	previous grand jury investigation.
23	23	SECTION 2. Article 20A.102(a), Code of Criminal Procedure,
24	24	is amended to read as follows:
25	25	(a) While the grand jury is conducting proceedings, only the
26	26	following persons may be present in the grand jury room:
27	27	(1) a grand juror;
28	28	(2) a bailiff;
29	29	(3) the attorney representing the state;
30	30	(4) a witness:
31	31	(A) while the witness is being examined; or
32	32	(B) when the witness's presence is necessary to
33	33	assist the attorney representing the state in examining another
34	34	witness or presenting evidence to the grand jury;
35	35	(5) an interpreter, if necessary;
36	36	(6) a stenographer or a person operating an electronic
37	37	recording device, as provided by Article 20A.201; [and]
38	38	(7) a person operating a video teleconferencing system
39	39	for use under Article 20A.259; and
40	40	(8) an attorney representing a witness, including a
41	41	witness who is an accused or suspected person, during the time the
42	42	witness is being examined or offering testimony to the grand jury
43	43	and for the sole purpose of providing consultation in the manner
44	44	described by Article 20A.1031.
45	45	SECTION 3. Subchapter C, Chapter 20A, Code of Criminal
46	46	Procedure, is amended by adding Articles 20A.1031 and 20A.105 to
47	47	read as follows:
48	48	Art. 20A.1031. ATTORNEY REPRESENTING WITNESS ENTITLED TO
49	49	APPEAR. A witness who testifies before a grand jury, including a
50	50	witness who is an accused or suspected person, is entitled to have
51	51	an attorney present while the grand jury is questioning the
52	52	witness. The grand jury shall permit the attorney or the witness to
53	53	interrupt the questioning at any time so that the witness may
54	54	consult with the attorney outside the hearing of the grand jury.
55	55	Art. 20A.105. PRESENTATION OF EXCULPATORY EVIDENCE BY
56	56	STATE. (a) The attorney representing the state shall present to a
57	57	grand jury investigating an offense any evidence that is:
58	58	(1) favorable to the accused or suspected person;
59	59	(2) material to the offense being investigated; and
60	60	(3) in the possession, custody, or control of the
61	61	state or any person under contract with the state.
62	62	(b) Evidence described by Subsection (a) may be presented to
63	63	the grand jury at any time during the investigation.
64	64	SECTION 4. The heading to Article 20A.201, Code of Criminal
65	65	Procedure, is amended to read as follows:
66	66	Art. 20A.201. RECORDING OF GRAND JURY PROCEEDINGS [ACCUSED
67	67	OR SUSPECTED PERSON'S TESTIMONY]; RETENTION OF RECORDS.
68	68	SECTION 5. Articles 20A.201(a) and (b), Code of Criminal
69	69	Procedure, are amended to read as follows:
70	70	(a) Except as otherwise provided by this subsection, all
71	71	statements made by the grand jury or the attorney representing the
72	72	state and the [The] examination and testimony of a witness [an
73	73	accused or suspected person before the grand jury and that person's
74	74	testimony] shall be recorded by a stenographer or by use of an
75	75	electronic device capable of recording sound. Deliberations of the
76	76	grand jury may not be recorded.
77	77	(b) The validity of a grand jury proceeding is not affected
78	78	by an unintentional failure to record all or part of the proceedings
79	79	as required by [examination or testimony under] Subsection (a).
80	80	SECTION 6. Article 20A.202(b), Code of Criminal Procedure,
81	81	is amended to read as follows:
82	82	(b) A subpoena or summons relating to a grand jury
83	83	proceeding or investigation must be kept secret to the extent and
84	84	for as long as necessary to prevent the unauthorized disclosure of a
85	85	matter before the grand jury. This subsection may not be construed
86	86	to limit a disclosure permitted by Article 20A.204(b), (c), or (d)
87	87	or 20A.205 [20A.205(a) or (b)].
88	88	SECTION 7. Article 20A.204(a), Code of Criminal Procedure,
89	89	is amended to read as follows:
90	90	(a) The attorney representing the state may not disclose
91	91	anything transpiring before the grand jury except as permitted by
92	92	this article or Article 20A.205 [Article 20A.205(a) or (b)].
93	93	SECTION 8. Subchapter E, Chapter 20A, Code of Criminal
94	94	Procedure, is amended by adding Article 20A.2041 to read as
95	95	follows:
96	96	Art. 20A.2041. DISCLOSURE BY ATTORNEY REPRESENTING
97	97	WITNESS. Except as provided by Article 20A.205, an attorney
98	98	representing a witness may not disclose anything transpiring before
99	99	the grand jury. An attorney who discloses information in violation
100	100	of this article is subject to punishment for contempt in the same
101	101	manner as a person who violates Article 20A.203(a).
102	102	SECTION 9. Article 20A.205, Code of Criminal Procedure, is
103	103	amended to read as follows:
104	104	Art. 20A.205. DISCOVERY [PETITION FOR DISCLOSURE] BY OR ON
105	105	BEHALF OF ACCUSED OR SUSPECTED PERSON [DEFENDANT]. (a) Except as
106	106	otherwise provided by this article, if the state provides notice to
107	107	an accused or suspected person of the grand jury investigation, as
108	108	soon as practicable after receiving a request from an accused or
109	109	suspected person, the attorney representing the state shall produce
110	110	and permit the inspection and the electronic duplication, copying,
111	111	and photographing, by or on behalf of the accused or suspected
112	112	person, of any:
113	113	(1) offense reports, designated documents, or
114	114	designated papers arising from the alleged offense;
115	115	(2) designated written or recorded statements of the
116	116	accused or suspected person or a witness that arise from the alleged
117	117	offense, including witness statements of law enforcement officers;
118	118	and
119	119	(3) designated books, accounts, letters, photographs,
120	120	or objects or other tangible things that:
121	121	(A) are not otherwise privileged;
122	122	(B) constitute or contain evidence material to
123	123	any matter involved in the grand jury investigation; and
124	124	(C) are in the possession, custody, or control of
125	125	the state or any person under contract with the state.
126	126	(b) Subsection (a) does not authorize the removal of
127	127	documents, items, or information from the possession of the state,
128	128	and any inspection shall be in the presence of a representative of
129	129	the state.
130	130	(c) In the case of a pro se accused or suspected person, the
131	131	state shall permit the inspection or review of the document, item,
132	132	or information as provided by Subsection (a), but is not required to
133	133	allow electronic duplication as described by that subsection.
134	134	(d) The attorney representing the state may provide to an
135	135	accused or suspected person electronic duplicates of any document,
136	136	item, or information described by Subsection (a).
137	137	(e) Subsection (a) does not authorize the disclosure of:
138	138	(1) the work product of the attorney representing the
139	139	state in the investigation; or
140	140	(2) the work product of the state's investigators,
141	141	including an investigator's notes or reports.
142	142	(f) The rights granted to the accused or suspected person
143	143	under Subsection (a) do not extend to written communications
144	144	between the state and an agent, representative, or employee of the
145	145	state.
146	146	(g) If only a portion of the applicable document, item, or
147	147	information is subject to discovery under this article, the state
148	148	is not required to produce or permit the inspection of the remaining
149	149	portion that is not subject to discovery and may withhold or redact
150	150	that portion. The state shall inform the accused or suspected
151	151	person that a portion of the document, item, or information has been
152	152	withheld or redacted.
153	153	(h) The accused or suspected person, the attorney
154	154	representing the accused or suspected person, or an investigator,
155	155	expert, consulting legal counsel, or other agent of the attorney
156	156	representing the accused or suspected person may not disclose to a
157	157	third party any documents, evidence, materials, or witness
158	158	statements received under this article unless:
159	159	(1) a court orders the disclosure after notice and
160	160	hearing, on a showing of good cause and after considering the
161	161	security and privacy interests of any victim or witness; or
162	162	(2) the documents, evidence, materials, or witness
163	163	statements have already been publicly disclosed.
164	164	(i) Notwithstanding any other provision of this article,
165	165	information identifying any victim or witness, including the name
166	166	of a victim or witness and including the address, telephone number,
167	167	driver's license number, social security number, date of birth, or
168	168	bank account information or any other information that by reference
169	169	would make it possible to identify a victim or witness, is
170	170	confidential and may not be disclosed unless the disclosure is
171	171	ordered by the court under Subsection (h) or otherwise required by
172	172	Subsection (j).
173	173	(j) Notwithstanding any other provision of this article,
174	174	the state shall disclose to the accused or suspected person any
175	175	exculpatory, impeachment, or mitigating document, item, or
176	176	information that is in the possession, custody, or control of the
177	177	state or any person under contract with the state that tends to
178	178	negate the guilt of the accused or suspected person or would tend to
179	179	reduce the punishment for the offense being investigated.
180	180	(k) The state shall electronically record or otherwise
181	181	document any document, item, or other information provided to the
182	182	accused or suspected person under this article.
183	183	(l) A court may order the accused or suspected person to pay
184	184	costs related to discovery under this article, not to exceed the
185	185	amounts authorized to be charged by Subchapter F, Chapter 552,
186	186	Government Code, for providing public information.
187	187	(m) Except as provided by Subsection (i), this article does
188	188	not prohibit the attorney representing the state from providing
189	189	discovery and documentation beyond that required by this article.
190	190	(n) This article applies only to discovery for a grand jury
191	191	investigation. This article does not limit an accused or suspected
192	192	person's right to discovery authorized by other law.
193	193	(o) [The defendant may petition a court to order the
194	194	disclosure of information made secret by Article 20A.202,
195	195	20A.203(a), or 20A.204, including a recording or typewritten
196	196	transcription under Article 20A.201, as a matter preliminary to or
197	197	in connection with a judicial proceeding. The court may order
198	198	disclosure of the information if the defendant shows a
199	199	particularized need.
200	200	[(b) A petition for disclosure under Subsection (a) must be
201	201	filed in the district court in which the case is pending. The
202	202	defendant must also file a copy of the petition with the attorney
203	203	representing the state, the parties to the judicial proceeding, and
204	204	any other person the court requires. Each person who receives a copy
205	205	of the petition under this subsection is entitled to appear before
206	206	the court. The court shall provide interested parties with an
207	207	opportunity to appear and present arguments for or against the
208	208	requested disclosure.
209	209	[(c)] A person who receives information under this article
210	210	and discloses that information in a manner not authorized by this
211	211	article may be punished for contempt in the same manner as a person
212	212	who violates Article 20A.203(a).
213	213	SECTION 10. Article 20A.257, Code of Criminal Procedure, is
214	214	amended to read as follows:
215	215	Art. 20A.257. EXAMINATION OF WITNESSES. (a) A person who
216	216	is subpoenaed to appear as a witness before a grand jury shall be
217	217	given a reasonable opportunity to retain counsel and to consult
218	218	with counsel before the person's appearance.
219	219	(b) Only a grand juror or the attorney representing the
220	220	state may examine a witness before the grand jury.
221	221	(c) [(b)] The attorney representing the state shall advise
222	222	the grand jury regarding the proper mode of examining a witness.
223	223	(d) Before the grand jury may question the witness, a
224	224	witness appearing before a grand jury shall be orally given the
225	225	following warning:
226	226	"Your testimony before this grand jury is under oath. Any
227	227	material question that is answered falsely before this grand jury
228	228	subjects you to being prosecuted for aggravated perjury. You have
229	229	the right to refuse to make answers to any question, the answer to
230	230	which would incriminate you in any manner. During questioning, you
231	231	have the right to have an attorney present to advise you before
232	232	making answers to questions you feel might incriminate you. Any
233	233	testimony you give may be used against you at any subsequent
234	234	proceeding."
235	235	(e) [(c)] If a felony has been committed in any county in
236	236	the grand jury's jurisdiction, and the name of the offender is known
237	237	or unknown or if it is uncertain when or how the felony was
238	238	committed, the grand jury shall first state the subject matter
239	239	under investigation to a witness called before the grand jury and
240	240	may then ask questions relevant to the transaction in general terms
241	241	and in a manner that enables a determination as to whether the
242	242	witness has knowledge of the violation of any particular law by any
243	243	person, and if so, by what person.
244	244	SECTION 11. Article 20A.258(b), Code of Criminal Procedure,
245	245	is amended to read as follows:
246	246	(b) The warnings required under Subsection (a)(1) must
247	247	consist of the following:
248	248	"Your testimony before this grand jury is under oath. Any
249	249	material question that is answered falsely before this grand jury
250	250	subjects you to being prosecuted for aggravated perjury. You have
251	251	the right to refuse to make answers to any question, the answer to
252	252	which would incriminate you in any manner. During questioning, you
253	253	[You] have the right to have an attorney [a lawyer] present [outside
254	254	this chamber] to advise you before making answers to questions you
255	255	feel might incriminate you. Any testimony you give may be used
256	256	against you at any subsequent proceeding. If you are unable to
257	257	employ an attorney [a lawyer], you have the right to have an
258	258	attorney [a lawyer] appointed to advise you before making an answer
259	259	to a question, the answer to which you feel might incriminate you."
260	260	SECTION 12. Subtitle A, Title 2, Civil Practice and
261	261	Remedies Code, is amended by adding Chapter 14A to read as follows:
262	262	CHAPTER 14A. GRAND JURY LITIGATION
263	263	Sec. 14A.001. RECOVERY OF ATTORNEY'S FEES AND RELATED
264	264	EXPENSES; WAIVER OF IMMUNITY. (a) Not later than the 30th day
265	265	after the date of the grand jury vote under Article 20A.301, Code of
266	266	Criminal Procedure, the accused or suspected person may submit to
267	267	the court an application to recover attorney's fees and other
268	268	related expenses. The application must:
269	269	(1) allege that the position of the attorney
270	270	representing the state was:
271	271	(A) not substantially justified; and
272	272	(B) vexatious, frivolous, or in bad faith; and
273	273	(2) show the amount of attorney's fees and other
274	274	related expenses incurred by the accused or suspected person during
275	275	the grand jury investigation, including an itemized statement
276	276	submitted by any attorney representing the accused or suspected
277	277	person or any expert witness testifying on behalf of the accused or
278	278	suspected person and showing:
279	279	(A) the time actually expended; and
280	280	(B) the rate at which the fees and other expenses
281	281	were calculated.
282	282	(b) The court may award reasonable attorney's fees and other
283	283	related expenses to the accused or suspected person if the court:
284	284	(1) finds that the position of the attorney
285	285	representing the state was not substantially justified, based on
286	286	the record made in the grand jury investigation for which
287	287	attorney's fees and other related expenses are requested;
288	288	(2) finds that the position of the attorney
289	289	representing the state was vexatious, frivolous, or in bad faith;
290	290	and
291	291	(3) does not find that special circumstances make the
292	292	award unjust.
293	293	(c) To determine whether the position of the attorney
294	294	representing the state was vexatious, frivolous, or in bad faith,
295	295	the court, for good cause shown, may receive evidence ex parte and
296	296	in camera, including evidence that reveals or might reveal the
297	297	identity of an informant or undercover agent or matters occurring
298	298	before a grand jury. The court shall keep evidence received under
299	299	this subsection under seal.
300	300	(d) The attorney representing the state shall pay
301	301	attorney's fees and other related expenses awarded under this
302	302	section.
303	303	(e) Governmental immunity is waived and abolished to the
304	304	extent of liability for attorney's fees and other related expenses
305	305	under this section.
306	306	SECTION 13. The changes in law made by this Act apply only
307	307	to a grand jury proceeding that begins on or after the effective
308	308	date of this Act. A grand jury proceeding that begins before the
309	309	effective date of this Act is governed by the law in effect on the
310	310	date the proceeding began, and the former law is continued in effect
311	311	for that purpose.
312	312	SECTION 14. This Act takes effect September 1, 2023.