Bill Text: TX HB179 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to grand jury proceedings; providing a punishment for contempt of court.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-04-12 - Left pending in committee [HB179 Detail]

Download: Texas-2021-HB179-Introduced.html
  87R825 AJZ-D
 
  By: Thompson of Harris H.B. No. 179
 
 
 
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, 2021.
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