Bill Text: TX HB1258 | 2023-2024 | 88th Legislature | Introduced
Bill Title: Relating to grand jury proceedings; providing a punishment for contempt of court.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-04-25 - Left pending in committee [HB1258 Detail]
Download: Texas-2023-HB1258-Introduced.html
88R4510 AJZ-D | ||
By: Thompson of Harris | H.B. No. 1258 |
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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; [ |
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(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 [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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BEHALF OF ACCUSED OR SUSPECTED PERSON [ |
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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) [ |
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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) [ |
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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) [ |
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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 | ||
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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 [ |
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attorney [ |
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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. |