Texas 2025 - 89th Regular

Texas House Bill HB5564 Compare Versions

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Old	New	Differences
1	1	89R6360 TYPED
2	2	By: Thompson H.B. No. 5564
3	3
4	4
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to grand jury proceedings; providing a punishment for
10	10	contempt of court.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subchapter A, Chapter 20A, Code of Criminal
13	13	Procedure, is amended by adding Article 20A.002 to read as follows:
14	14	Art. 20A.002. WHO MAY BE INVESTIGATED. (a) Except as
15	15	provided by Subsection (b), a grand jury may not investigate a
16	16	person who is accused or suspected of an offense and may not vote to
17	17	present an indictment for the offense if the person has previously
18	18	been investigated by a grand jury for the same offense and that
19	19	grand jury found no bill of indictment.
20	20	(b) A grand jury may investigate, and may present an
21	21	indictment with respect to, a person described by Subsection (a)
22	22	only if the attorney representing the state presents material
23	23	evidence that was not known to the state before or during the
24	24	previous grand jury investigation.
25	25	SECTION 2. Article 20A.102(a), Code of Criminal Procedure,
26	26	is amended to read as follows:
27	27	(a) While the grand jury is conducting proceedings, only the
28	28	following persons may be present in the grand jury room:
29	29	(1) a grand juror;
30	30	(2) a bailiff;
31	31	(3) the attorney representing the state;
32	32	(4) a witness:
33	33	(A) while the witness is being examined; or
34	34	(B) when the witness's presence is necessary to
35	35	assist the attorney representing the state in examining another
36	36	witness or presenting evidence to the grand jury;
37	37	(5) an interpreter, if necessary;
38	38	(6) a stenographer or a person operating an electronic
39	39	recording device, as provided by Article 20A.201; [and]
40	40	(7) a person operating a video teleconferencing system
41	41	for use under Article 20A.259; and
42	42	(8) an attorney representing a witness, including a
43	43	witness who is an accused or suspected person, during the time the
44	44	witness is being examined or offering testimony to the grand jury
45	45	and for the sole purpose of providing consultation in the manner
46	46	described by Article 20A.1031.
47	47	SECTION 3. Subchapter C, Chapter 20A, Code of Criminal
48	48	Procedure, is amended by adding Articles 20A.1031 and 20A.105 to
49	49	read as follows:
50	50	Art. 20A.1031. ATTORNEY REPRESENTING WITNESS ENTITLED TO
51	51	APPEAR. A witness who testifies before a grand jury, including a
52	52	witness who is an accused or suspected person, is entitled to have
53	53	an attorney present while the grand jury is questioning the
54	54	witness. The grand jury shall permit the attorney or the witness to
55	55	interrupt the questioning at any time so that the witness may
56	56	consult with the attorney outside the hearing of the grand jury.
57	57	Art. 20A.105. PRESENTATION OF EXCULPATORY EVIDENCE BY
58	58	STATE. (a) The attorney representing the state shall present to a
59	59	grand jury investigating an offense any evidence that is:
60	60	(1) favorable to the accused or suspected person;
61	61	(2) material to the offense being investigated; and
62	62	(3) in the possession, custody, or control of the
63	63	state or any person under contract with the state.
64	64	(b) Evidence described by Subsection (a) may be presented to
65	65	the grand jury at any time during the investigation.
66	66	SECTION 4. The heading to Article 20A.201, Code of Criminal
67	67	Procedure, is amended to read as follows:
68	68	Art. 20A.201. RECORDING OF GRAND JURY PROCEEDINGS [ACCUSED
69	69	OR SUSPECTED PERSON'S TESTIMONY]; RETENTION OF RECORDS.
70	70	SECTION 5. Articles 20A.201(a) and (b), Code of Criminal
71	71	Procedure, are amended to read as follows:
72	72	(a) Except as otherwise provided by this subsection, all
73	73	statements made by the grand jury or the attorney representing the
74	74	state and the [The] examination and testimony of a witness [an
75	75	accused or suspected person before the grand jury and that person's
76	76	testimony] shall be recorded by a stenographer or by use of an
77	77	electronic device capable of recording sound. Deliberations of the
78	78	grand jury may not be recorded.
79	79	(b) The validity of a grand jury proceeding is not affected
80	80	by an unintentional failure to record all or part of the proceedings
81	81	as required by [examination or testimony under] Subsection (a).
82	82	SECTION 6. Article 20A.202(b), Code of Criminal Procedure,
83	83	is amended to read as follows:
84	84	(b) A subpoena or summons relating to a grand jury
85	85	proceeding or investigation must be kept secret to the extent and
86	86	for as long as necessary to prevent the unauthorized disclosure of a
87	87	matter before the grand jury. This subsection may not be construed
88	88	to limit a disclosure permitted by Article 20A.204(b), (c), or (d)
89	89	or 20A.205 [20A.205(a) or (b)].
90	90	SECTION 7. Article 20A.204(a), Code of Criminal Procedure,
91	91	is amended to read as follows:
92	92	(a) The attorney representing the state may not disclose
93	93	anything transpiring before the grand jury except as permitted by
94	94	this article or Article 20A.205 [Article 20A.205(a) or (b)].
95	95	SECTION 8. Subchapter E, Chapter 20A, Code of Criminal
96	96	Procedure, is amended by adding Article 20A.2041 to read as
97	97	follows:
98	98	Art. 20A.2041. DISCLOSURE BY ATTORNEY REPRESENTING
99	99	WITNESS. Except as provided by Article 20A.205, an attorney
100	100	representing a witness may not disclose anything transpiring before
101	101	the grand jury. An attorney who discloses information in violation
102	102	of this article is subject to punishment for contempt in the same
103	103	manner as a person who violates Article 20A.203(a).
104	104	SECTION 9. Article 20A.205, Code of Criminal Procedure, is
105	105	amended to read as follows:
106	106	Art. 20A.205. DISCOVERY [PETITION FOR DISCLOSURE] BY OR ON
107	107	BEHALF OF ACCUSED OR SUSPECTED PERSON [DEFENDANT]. (a) Except as
108	108	otherwise provided by this article, if the state provides notice to
109	109	an accused or suspected person of the grand jury investigation, as
110	110	soon as practicable after receiving a request from an accused or
111	111	suspected person, the attorney representing the state shall produce
112	112	and permit the inspection and the electronic duplication, copying,
113	113	and photographing, by or on behalf of the accused or suspected
114	114	person, of any:
115	115	(1) offense reports, designated documents, or
116	116	designated papers arising from the alleged offense;
117	117	(2) designated written or recorded statements of the
118	118	accused or suspected person or a witness that arise from the alleged
119	119	offense, including witness statements of law enforcement officers;
120	120	and
121	121	(3) designated books, accounts, letters, photographs,
122	122	or objects or other tangible things that:
123	123	(A) are not otherwise privileged;
124	124	(B) constitute or contain evidence material to
125	125	any matter involved in the grand jury investigation; and
126	126	(C) are in the possession, custody, or control of
127	127	the state or any person under contract with the state.
128	128	(b) Subsection (a) does not authorize the removal of
129	129	documents, items, or information from the possession of the state,
130	130	and any inspection shall be in the presence of a representative of
131	131	the state.
132	132	(c) In the case of a pro se accused or suspected person, the
133	133	state shall permit the inspection or review of the document, item,
134	134	or information as provided by Subsection (a), but is not required to
135	135	allow electronic duplication as described by that subsection.
136	136	(d) The attorney representing the state may provide to an
137	137	accused or suspected person electronic duplicates of any document,
138	138	item, or information described by Subsection (a).
139	139	(e) Subsection (a) does not authorize the disclosure of:
140	140	(1) the work product of the attorney representing the
141	141	state in the investigation; or
142	142	(2) the work product of the state's investigators,
143	143	including an investigator's notes or reports.
144	144	(f) The rights granted to the accused or suspected person
145	145	under Subsection (a) do not extend to written communications
146	146	between the state and an agent, representative, or employee of the
147	147	state.
148	148	(g) If only a portion of the applicable document, item, or
149	149	information is subject to discovery under this article, the state
150	150	is not required to produce or permit the inspection of the remaining
151	151	portion that is not subject to discovery and may withhold or redact
152	152	that portion. The state shall inform the accused or suspected
153	153	person that a portion of the document, item, or information has been
154	154	withheld or redacted.
155	155	(h) The accused or suspected person, the attorney
156	156	representing the accused or suspected person, or an investigator,
157	157	expert, consulting legal counsel, or other agent of the attorney
158	158	representing the accused or suspected person may not disclose to a
159	159	third party any documents, evidence, materials, or witness
160	160	statements received under this article unless:
161	161	(1) a court orders the disclosure after notice and
162	162	hearing, on a showing of good cause and after considering the
163	163	security and privacy interests of any victim or witness; or
164	164	(2) the documents, evidence, materials, or witness
165	165	statements have already been publicly disclosed.
166	166	(i) Notwithstanding any other provision of this article,
167	167	information identifying any victim or witness, including the name
168	168	of a victim or witness and including the address, telephone number,
169	169	driver's license number, social security number, date of birth, or
170	170	bank account information or any other information that by reference
171	171	would make it possible to identify a victim or witness, is
172	172	confidential and may not be disclosed unless the disclosure is
173	173	ordered by the court under Subsection (h) or otherwise required by
174	174	Subsection (j).
175	175	(j) Notwithstanding any other provision of this article,
176	176	the state shall disclose to the accused or suspected person any
177	177	exculpatory, impeachment, or mitigating document, item, or
178	178	information that is in the possession, custody, or control of the
179	179	state or any person under contract with the state that tends to
180	180	negate the guilt of the accused or suspected person or would tend to
181	181	reduce the punishment for the offense being investigated.
182	182	(k) The state shall electronically record or otherwise
183	183	document any document, item, or other information provided to the
184	184	accused or suspected person under this article.
185	185	(l) A court may order the accused or suspected person to pay
186	186	costs related to discovery under this article, not to exceed the
187	187	amounts authorized to be charged by Subchapter F, Chapter 552,
188	188	Government Code, for providing public information.
189	189	(m) Except as provided by Subsection (i), this article does
190	190	not prohibit the attorney representing the state from providing
191	191	discovery and documentation beyond that required by this article.
192	192	(n) This article applies only to discovery for a grand jury
193	193	investigation. This article does not limit an accused or suspected
194	194	person's right to discovery authorized by other law.
195	195	(o) [The defendant may petition a court to order the
196	196	disclosure of information made secret by Article 20A.202,
197	197	20A.203(a), or 20A.204, including a recording or typewritten
198	198	transcription under Article 20A.201, as a matter preliminary to or
199	199	in connection with a judicial proceeding. The court may order
200	200	disclosure of the information if the defendant shows a
201	201	particularized need.
202	202	[(b) A petition for disclosure under Subsection (a) must be
203	203	filed in the district court in which the case is pending. The
204	204	defendant must also file a copy of the petition with the attorney
205	205	representing the state, the parties to the judicial proceeding, and
206	206	any other person the court requires. Each person who receives a copy
207	207	of the petition under this subsection is entitled to appear before
208	208	the court. The court shall provide interested parties with an
209	209	opportunity to appear and present arguments for or against the
210	210	requested disclosure.
211	211	[(c)] A person who receives information under this article
212	212	and discloses that information in a manner not authorized by this
213	213	article may be punished for contempt in the same manner as a person
214	214	who violates Article 20A.203(a).
215	215	SECTION 10. Article 20A.257, Code of Criminal Procedure, is
216	216	amended to read as follows:
217	217	Art. 20A.257. EXAMINATION OF WITNESSES. (a) A person who
218	218	is subpoenaed to appear as a witness before a grand jury shall be
219	219	given a reasonable opportunity to retain counsel and to consult
220	220	with counsel before the person's appearance.
221	221	(b) Only a grand juror or the attorney representing the
222	222	state may examine a witness before the grand jury.
223	223	(c) [(b)] The attorney representing the state shall advise
224	224	the grand jury regarding the proper mode of examining a witness.
225	225	(d) Before the grand jury may question the witness, a
226	226	witness appearing before a grand jury shall be orally given the
227	227	following warning:
228	228	"Your testimony before this grand jury is under oath. Any
229	229	material question that is answered falsely before this grand jury
230	230	subjects you to being prosecuted for aggravated perjury. You have
231	231	the right to refuse to make answers to any question, the answer to
232	232	which would incriminate you in any manner. During questioning, you
233	233	have the right to have an attorney present to advise you before
234	234	making answers to questions you feel might incriminate you. Any
235	235	testimony you give may be used against you at any subsequent
236	236	proceeding."
237	237	(e) [(c)] If a felony has been committed in any county in
238	238	the grand jury's jurisdiction, and the name of the offender is known
239	239	or unknown or if it is uncertain when or how the felony was
240	240	committed, the grand jury shall first state the subject matter
241	241	under investigation to a witness called before the grand jury and
242	242	may then ask questions relevant to the transaction in general terms
243	243	and in a manner that enables a determination as to whether the
244	244	witness has knowledge of the violation of any particular law by any
245	245	person, and if so, by what person.
246	246	SECTION 11. Article 20A.258(b), Code of Criminal Procedure,
247	247	is amended to read as follows:
248	248	(b) The warnings required under Subsection (a)(1) must
249	249	consist of the following:
250	250	"Your testimony before this grand jury is under oath. Any
251	251	material question that is answered falsely before this grand jury
252	252	subjects you to being prosecuted for aggravated perjury. You have
253	253	the right to refuse to make answers to any question, the answer to
254	254	which would incriminate you in any manner. During questioning, you
255	255	[You] have the right to have an attorney [a lawyer] present [outside
256	256	this chamber] to advise you before making answers to questions you
257	257	feel might incriminate you. Any testimony you give may be used
258	258	against you at any subsequent proceeding. If you are unable to
259	259	employ an attorney [a lawyer], you have the right to have an
260	260	attorney [a lawyer] appointed to advise you before making an answer
261	261	to a question, the answer to which you feel might incriminate you."
262	262	SECTION 12. Subtitle A, Title 2, Civil Practice and
263	263	Remedies Code, is amended by adding Chapter 14A to read as follows:
264	264	CHAPTER 14A. GRAND JURY LITIGATION
265	265	Sec. 14A.001. RECOVERY OF ATTORNEY'S FEES AND RELATED
266	266	EXPENSES; WAIVER OF IMMUNITY. (a) Not later than the 30th day
267	267	after the date of the grand jury vote under Article 20A.301, Code of
268	268	Criminal Procedure, the accused or suspected person may submit to
269	269	the court an application to recover attorney's fees and other
270	270	related expenses. The application must:
271	271	(1) allege that the position of the attorney
272	272	representing the state was:
273	273	(A) not substantially justified; and
274	274	(B) vexatious, frivolous, or in bad faith; and
275	275	(2) show the amount of attorney's fees and other
276	276	related expenses incurred by the accused or suspected person during
277	277	the grand jury investigation, including an itemized statement
278	278	submitted by any attorney representing the accused or suspected
279	279	person or any expert witness testifying on behalf of the accused or
280	280	suspected person and showing:
281	281	(A) the time actually expended; and
282	282	(B) the rate at which the fees and other expenses
283	283	were calculated.
284	284	(b) The court may award reasonable attorney's fees and other
285	285	related expenses to the accused or suspected person if the court:
286	286	(1) finds that the position of the attorney
287	287	representing the state was not substantially justified, based on
288	288	the record made in the grand jury investigation for which
289	289	attorney's fees and other related expenses are requested;
290	290	(2) finds that the position of the attorney
291	291	representing the state was vexatious, frivolous, or in bad faith;
292	292	and
293	293	(3) does not find that special circumstances make the
294	294	award unjust.
295	295	(c) To determine whether the position of the attorney
296	296	representing the state was vexatious, frivolous, or in bad faith,
297	297	the court, for good cause shown, may receive evidence ex parte and
298	298	in camera, including evidence that reveals or might reveal the
299	299	identity of an informant or undercover agent or matters occurring
300	300	before a grand jury. The court shall keep evidence received under
301	301	this subsection under seal.
302	302	(d) The attorney representing the state shall pay
303	303	attorney's fees and other related expenses awarded under this
304	304	section.
305	305	(e) Governmental immunity is waived and abolished to the
306	306	extent of liability for attorney's fees and other related expenses
307	307	under this section.
308	308	SECTION 13. The changes in law made by this Act apply only
309	309	to a grand jury proceeding that begins on or after the effective
310	310	date of this Act. A grand jury proceeding that begins before the
311	311	effective date of this Act is governed by the law in effect on the
312	312	date the proceeding began, and the former law is continued in effect
313	313	for that purpose.
314	314	SECTION 14. This Act takes effect September 1, 2023.