88R4510 AJZ-D
By: Thompson of Harris H.B. No. 1258
A BILL TO BE ENTITLED
AN ACT
relating to grand jury proceedings; providing a punishment for
contempt of court.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 20A, Code of Criminal
Procedure, is amended by adding Article 20A.002 to read as follows:
Art. 20A.002. 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 presents material
evidence that was not known to the state before or during the
previous grand jury investigation.
SECTION 2. Article 20A.102(a), Code of Criminal Procedure,
is amended to read as follows:
(a) While the grand jury is conducting proceedings, only the
following persons may be present in the grand jury room:
(1) a grand juror;
(2) a bailiff;
(3) the attorney representing the state;
(4) a witness:
(A) while the witness is being examined; or
(B) when the witness's presence is necessary to
assist the attorney representing the state in examining another
witness or presenting evidence to the grand jury;
(5) an interpreter, if necessary;
(6) a stenographer or a person operating an electronic
recording device, as provided by Article 20A.201; [and]
(7) a person operating a video teleconferencing system
for use under Article 20A.259; 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 20A.1031.
SECTION 3. Subchapter C, Chapter 20A, Code of Criminal
Procedure, is amended by adding Articles 20A.1031 and 20A.105 to
read as follows:
Art. 20A.1031. ATTORNEY REPRESENTING WITNESS ENTITLED TO
APPEAR. 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. The grand jury shall permit the attorney or 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.
Art. 20A.105. PRESENTATION OF EXCULPATORY EVIDENCE BY
STATE. (a) The attorney representing the state shall present to a
grand jury investigating an offense any evidence that is:
(1) favorable to the accused or suspected person;
(2) material to the offense being investigated; and
(3) in the possession, custody, or control of the
state or any person under contract with the state.
(b) Evidence described by Subsection (a) may be presented to
the grand jury at any time during the investigation.
SECTION 4. The heading to Article 20A.201, Code of Criminal
Procedure, is amended to read as follows:
Art. 20A.201. RECORDING OF GRAND JURY PROCEEDINGS [ACCUSED
OR SUSPECTED PERSON'S TESTIMONY]; RETENTION OF RECORDS.
SECTION 5. Articles 20A.201(a) and (b), Code of Criminal
Procedure, are amended to read as follows:
(a) Except as otherwise provided by this subsection, all
statements made by the grand jury or the attorney representing the
state and the [The] examination and testimony of a witness [an
accused or suspected person before the grand jury and that person's
testimony] shall be recorded by a stenographer or by use of an
electronic device capable of recording sound. Deliberations of the
grand jury may not be recorded.
(b) The validity of a grand jury proceeding is not affected
by an unintentional failure to record all or part of the proceedings
as required by [examination or testimony under] Subsection (a).
SECTION 6. Article 20A.202(b), Code of Criminal Procedure,
is amended to read as follows:
(b) 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 permitted by Article 20A.204(b), (c), or (d)
or 20A.205 [20A.205(a) or (b)].
SECTION 7. Article 20A.204(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The attorney representing the state may not disclose
anything transpiring before the grand jury except as permitted by
this article or Article 20A.205 [Article 20A.205(a) or (b)].
SECTION 8. Subchapter E, Chapter 20A, Code of Criminal
Procedure, is amended by adding Article 20A.2041 to read as
follows:
Art. 20A.2041. DISCLOSURE BY ATTORNEY REPRESENTING
WITNESS. Except as provided by Article 20A.205, an attorney
representing a witness may not disclose anything transpiring before
the grand jury. An attorney who discloses information in violation
of this article is subject to punishment for contempt in the same
manner as a person who violates Article 20A.203(a).
SECTION 9. Article 20A.205, Code of Criminal Procedure, is
amended to read as follows:
Art. 20A.205. DISCOVERY [PETITION FOR DISCLOSURE] BY OR ON
BEHALF OF ACCUSED OR SUSPECTED PERSON [DEFENDANT]. (a) Except as
otherwise provided by this article, if the state provides notice to
an accused or suspected person of the grand jury investigation, as
soon as practicable after receiving a request from an accused or
suspected person, the attorney representing the state shall produce
and permit the inspection and the electronic duplication, copying,
and photographing, by or on behalf of the accused or suspected
person, of any:
(1) offense reports, designated documents, or
designated papers arising from the alleged offense;
(2) designated written or recorded statements of the
accused or suspected person or a witness that arise from the alleged
offense, including witness statements of law enforcement officers;
and
(3) designated books, accounts, letters, photographs,
or objects or other tangible things that:
(A) are not otherwise privileged;
(B) constitute or contain evidence material to
any matter involved in the grand jury investigation; and
(C) are in the possession, custody, or control of
the state or any person under contract with the state.
(b) Subsection (a) does not authorize the removal of
documents, items, or information from the possession of the state,
and any inspection shall be in the presence of a representative of
the state.
(c) In the case of a pro se accused or suspected person, the
state shall permit the inspection or review of the document, item,
or information as provided by Subsection (a), but is not required to
allow electronic duplication as described by that subsection.
(d) The attorney representing the state may provide to an
accused or suspected person electronic duplicates of any document,
item, or information described by Subsection (a).
(e) Subsection (a) does not authorize the disclosure of:
(1) the work product of the attorney representing the
state in the investigation; or
(2) the work product of the state's investigators,
including an investigator's notes or reports.
(f) The rights granted to the accused or suspected person
under Subsection (a) do not extend to written communications
between the state and an agent, representative, or employee of the
state.
(g) If only a portion of the applicable document, item, or
information is subject to discovery under this article, the state
is not required to produce or permit the inspection of the remaining
portion that is not subject to discovery and may withhold or redact
that portion. The state shall inform the accused or suspected
person that a portion of the document, item, or information has been
withheld or redacted.
(h) 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 any documents, evidence, materials, or witness
statements received under this article unless:
(1) a court orders the disclosure after notice and
hearing, on a showing of good cause and after considering the
security and privacy interests of any victim or witness; or
(2) the documents, evidence, materials, or witness
statements have already been publicly disclosed.
(i) Notwithstanding any other provision of this article,
information identifying any victim or witness, including the name
of a victim or witness and including the address, telephone number,
driver's license number, social security number, date of birth, or
bank account information or any other information that by reference
would make it possible to identify a victim or witness, is
confidential and may not be disclosed unless the disclosure is
ordered by the court under Subsection (h) or otherwise required by
Subsection (j).
(j) Notwithstanding any other provision of this article,
the state shall disclose to the accused or suspected person any
exculpatory, impeachment, or mitigating document, item, or
information that is in the possession, custody, or control of the
state or any person under contract with the state that tends to
negate the guilt of the accused or suspected person or would tend to
reduce the punishment for the offense being investigated.
(k) The state shall electronically record or otherwise
document any document, item, or other information provided to the
accused or suspected person under this article.
(l) A court may order the accused or suspected person to pay
costs related to discovery under this article, not to exceed the
amounts authorized to be charged by Subchapter F, Chapter 552,
Government Code, for providing public information.
(m) Except as provided by Subsection (i), this article does
not prohibit the attorney representing the state from providing
discovery and documentation beyond that required by this article.
(n) This article applies only to discovery for a grand jury
investigation. This article does not limit an accused or suspected
person's right to discovery authorized by other law.
(o) [The defendant may petition a court to order the
disclosure of information made secret by Article 20A.202,
20A.203(a), or 20A.204, including a recording or typewritten
transcription under Article 20A.201, as a matter preliminary to or
in connection with a judicial proceeding. The court may order
disclosure of the information if the defendant shows a
particularized need.
[(b) A petition for disclosure under Subsection (a) must be
filed in the district court in which the case is pending. The
defendant must also file a copy of the petition with the attorney
representing the state, the parties to the judicial proceeding, and
any other person the court requires. Each person who receives a copy
of the petition under this subsection is entitled to appear before
the court. The court shall provide interested parties with an
opportunity to appear and present arguments for or against the
requested disclosure.
[(c)] A person who receives information under this article
and discloses that information in a manner not authorized by this
article may be punished for contempt in the same manner as a person
who violates Article 20A.203(a).
SECTION 10. Article 20A.257, Code of Criminal Procedure, is
amended to read as follows:
Art. 20A.257. EXAMINATION OF WITNESSES. (a) 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) Only a grand juror or the attorney representing the
state may examine a witness before the grand jury.
(c) [(b)] The attorney representing the state shall advise
the grand jury regarding the proper mode of examining a witness.
(d) Before the grand jury may question the witness, a
witness appearing before a grand jury shall be orally given the
following warning:
"Your testimony before this grand jury is under oath. Any
material question that is answered falsely before this grand jury
subjects you to being prosecuted for aggravated perjury. You have
the right to refuse to make answers to any question, the answer to
which would incriminate you in any manner. During questioning, you
have the right to have an attorney present to advise you before
making answers to questions you feel might incriminate you. Any
testimony you give may be used against you at any subsequent
proceeding."
(e) [(c)] If a felony has been committed in any county in
the grand jury's jurisdiction, and the name of the offender is known
or unknown or if it is uncertain when or how the felony was
committed, the grand jury shall first state the subject matter
under investigation to a witness called before the grand jury and
may then ask questions relevant to the transaction in general terms
and in a manner that enables a determination as to whether the
witness has knowledge of the violation of any particular law by any
person, and if so, by what person.
SECTION 11. Article 20A.258(b), Code of Criminal Procedure,
is amended to read as follows:
(b) The warnings required under Subsection (a)(1) must
consist of the following:
"Your testimony before this grand jury is under oath. Any
material question that is answered falsely before this grand jury
subjects you to being prosecuted for aggravated perjury. You have
the right to refuse to make answers to any question, the answer to
which would incriminate you in any manner. During questioning, 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. Any testimony you give may be used
against you at any subsequent proceeding. 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 12. Subtitle A, Title 2, Civil Practice and
Remedies Code, is amended by adding Chapter 14A to read as follows:
CHAPTER 14A. GRAND JURY LITIGATION
Sec. 14A.001. RECOVERY OF ATTORNEY'S FEES AND RELATED
EXPENSES; WAIVER OF IMMUNITY. (a) Not later than the 30th day
after the date of the grand jury vote under Article 20A.301, Code of
Criminal Procedure, the accused or suspected person may submit to
the court an application to recover attorney's fees and other
related expenses. The application must:
(1) allege that the position of the attorney
representing the state was:
(A) not substantially justified; and
(B) vexatious, frivolous, or in bad faith; and
(2) show the amount of attorney's fees and other
related expenses incurred by the accused or suspected person during
the grand jury investigation, including an itemized statement
submitted by any attorney representing the accused or suspected
person or any expert witness testifying on behalf of the accused or
suspected person and showing:
(A) the time actually expended; and
(B) the rate at which the fees and other expenses
were calculated.
(b) The court may award reasonable attorney's fees and other
related expenses to the accused or suspected person if the court:
(1) finds that the position of the attorney
representing the state was not substantially justified, based on
the record made in the grand jury investigation for which
attorney's fees and other related expenses are requested;
(2) finds that the position of the attorney
representing the state was vexatious, frivolous, or in bad faith;
and
(3) does not find that special circumstances make the
award unjust.
(c) To determine whether the position of the attorney
representing the state was vexatious, frivolous, or in bad faith,
the court, for good cause shown, may receive evidence ex parte and
in camera, including evidence that reveals or might reveal the
identity of an informant or undercover agent or matters occurring
before a grand jury. The court shall keep evidence received under
this subsection under seal.
(d) The attorney representing the state shall pay
attorney's fees and other related expenses awarded under this
section.
(e) Governmental immunity is waived and abolished to the
extent of liability for attorney's fees and other related expenses
under this section.
SECTION 13. The changes in law made by this Act apply only
to a grand jury proceeding that begins on or after the effective
date of this Act. A grand jury proceeding that begins before the
effective date of this Act is governed by the law in effect on the
date the proceeding began, and the former law is continued in effect
for that purpose.
SECTION 14. This Act takes effect September 1, 2023.