Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 20, 2017
The Honorable Stephen Bret Tyler Opinion No. KP-0137
Victoria County Criminal District Attorney
205 North Bridge Street, Suite 301 Re: Procedures for a grand jury to report its
Victoria, Texas 77901 findings and the district clerk's obligations
related to that report (RQ~0129-KP)
Dear Mr. Tyler:
You ask several questions related to whether a district clerk must accept for filing a grand
jury report, other than an indictment. 1 Specifically, your questions concern whether "grand jury
reports prepared as part of investigations into official misconduct conducted under article 2.03 of
the Texas Code of Criminal Procedure may be filed with the district clerk." Request Letter at 9-
10. Article 2.03(a) provides:
It shall be the duty of the attorney representing the State to present
by information to the court having jurisdiction, any officer for
neglect or failure of any duty enjoined upon such officer, when such
neglect or failure can be presented by information, whenever it shall
come to the knowledge of said attorney that there has been a neglect
or failure of duty upon the part of said officer; and he shall bring to
the notice of the grand jury any act of violation of law or neglect or
failure of duty upon the part of any officer, when such violation,
neglect or failure is not presented by information, and whenever the
same may come to his knowledge.
TEX. CODE CRIM. PROC. art. 2.03(a).
The central issue underpinning your questions is whether a grand jury has legal authority
to deliver a report other than the return of indictments. See Request Letter at 1-2. The Legislature
sets forth the authority of the grand jury in three principal provisions of the Code of Criminal
Procedure. First, article 20.09 of the Code of Criminal Procedure sets forth the duties of the grand
jury, as follows:
'See Letter from Honorable Stephen Bret Tyler, Victoria Cty. Crim. Dist. Att'y, to Honorable Ken Paxton,
Tex. Att'y Gen. at 1-2 (Sept. 16, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
The Honorable Stephen Bret Tyler - Page 2 (KP-0137)
The grand jury shall inquire into all offenses liable to indictment of
which any member may have knowledge, or of which they shall be
informed by the attorney representing the State, or any other
credible person.
TEX. CODE CRIM. PROC. art. 20.09 ("Duties of grand jury") (emphasis added). Article 20.19 of the
Code of Criminal Procedure then provides for voting on the presentment of an indictment by
members of the grand jury after hearing testimony. Id. art. 20.19 ("Grand jury shall vote"). Article
20.19 states:
After all the testimony which is accessible to the grand jury shall
have been given in respect to any criminal accusation, the vote shall
be taken as to the presentment of an indictment, and ifnine members
concur in finding the bill, the foreman shall make a memorandum of
the same with such data as will enable the attorney who represents
the State to write the indictment.
Id. (emphasis added). Finally, article 20.21 of the Code of Criminal Procedure addresses the matter
of the grand jury's report to the court. Id. art. 20.21 ("Indictment presented"). Article 20.21 states:
When the indictment is ready to be presented, the grand jury shall
through their foreman, deliver the indictment to the judge or clerk
of the court. At least nine members of the grand jury must be present
on such occasion.
Id. (emphasis added).
Construing the plain language of these provisions collectively, this office previously
concluded that Texas law authorizes grand juries to report by indictment only. Tex. Att'y Gen.
Op. No. M-1171 (1972) at 2 ("[U]nder the law of Texas, the power of the Grand Jury is limited to
investigating possible criminal offenses and delivering any resulting indictment to the district
court."). As the only grand jury report authorized by law is an indictment, this office concluded
that grand juries have no statutory authority to issue other reports, such as investigatory findings
or other recommendations. Id. at 2-3 ("There being no authority given to the Grand Jury to
investigate civil matters or to make any investigation into circumstances where no criminal offense
is suspected or alleged, no report or recommendation to the district court in such matters is
authorized ... .");see also Tex. Att'y Gen. Op. No. JM-1119 (1989) at 2 ("Grand juries in Texas,
like the vast majority of other states, lack constitutional and statutory authority to make reports
and recommendations."). Because there is no statutory or constitutional authority underpinning
these documents, we further concluded courts have no legal duty to accept such reports. See Tex.
Att'y Gen. Op. No. M-1171 (1972) at 3 (concluding district court has no legal duty to accept or
disclose jury reports other than indictments); see also Tex. Att'y Gen. Op. No. JM-1119 (1989) at
2 (concluding grand jury report lacked statutory underpinnings to render it a binding order).
The Honorable Stephen Bret Tyler - Page 3 (KP-0137)
In your letter, you urge us to reconsider or limit these previous opinions, contending that
in reaching the conclusion that Texas law authorizes grand juries to report by indictment only, this
office ignored the statutory authority bestowed on grand juries under article 2.03(a). Request
Letter at 2-3. 2 Article 2.03(a) states, in part, that the district attorney "shall bring to the notice of
the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer,
when such violation, neglect or failure is not presented by information." TEX. CODE CRIM. PROC.
art. 2.03(a). You suggest this provision necessarily implies a power to report and publicize any
investigatory findings made by the grand jury under article 2.03(a). Request Letter at 1-3.
Article 2.03( a) does not expressly authorize the creation of a grand jury report, nor provide
for the filing or publication of such a report. Rather, the provision does not speak to how the grand
jury should proceed when it receives notice of an officer's alleged violation oflaw or neglect of
duty. We must, however, examine article 2.03 in its proper context. Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) (examining entire act, rather than single
section in isolation, sheds light on Legislature's intent).
Examining the Code of Criminal Procedure as a whole, the Legislature authorized the
grand jury to report by indictment. See TEX. CODE CRIM. PROC. arts. 20.09, 20.19, 20.21. The
text of article 2.03 does not suggest an implied grant of additional authority. See id. art. 2.03(a).
Rather, when we construe article 2.03 in conjunction with other relevant provisions, the plain
language demonstrates the Legislature authorized the grand jury to report by indictment only. See
id. arts. 2.03(a), 20.09, 20.19, 20.21; Rich v. Eason, 180 S.W. 303, 304, 306 (Tex. Civ. App.-
Beaumont 1915, no writ) (holding grand jury report criticizing sheriff's moral character was not
absolutely privileged in libel suit against grand juror because the "articles in our criminal
procedure which define the duties of the grand jury are silent with respect to [such a] report"); see
also Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996) (citing Code of Criminal
Procedure articles 20.09 and 20.19 for proposition that grand jury's "authority and duty is limited
to inquiring into criminal accusations and determining whether evidence exists to formally charge
a person with an offense"); Alt v. State, 203 S.W. 53, 54 (Tex. Crim. App. 1918) ("The grand jury
is only empowered to inquire into violations of criminal laws of Texas.").
This construction is also consistent with article 20.02, which provides that "[t]he
proceedings of the grand jury shall be secret." TEX. CODE CRIM. PROC. art. 20.02(a); see also id.
art. 19.34 (grand jurors' oath of secrecy); Rich, 180 S.W. at 305-06 (grand jury report not
absolutely privileged in libel suit). For these reasons, a Texas court is likely to conclude that article
2.03(a) authorizes a grand jury to report only by indictment, and a district clerk therefore has no
duty to accept reports documenting a grand jury's findings that do not constitute criminal
2Your letter additionally presents a number of policy arguments supporting the issuance and publication of
grand jury reports. See id. at 3-9. A Texas court "may not override the Legislature's intent in favor of countervailing
policy considerations." Garcia v. State, 387 S.W.3d 20, 25 (Tex. Crim. App. 2012).
The Honorable Stephen Bret Tyler - Page 4 (KP-0137)
violations reportable by indictment. 3 Having so concluded, we need not address your remaining
questions regarding how such a report would be generated, reported, and published.
3
The Legislature may, in its wisdom, provide for the creation and publication of grand jury reports concerning
noncriminal conduct of public officials. See, e.g., 18. U.S.C. § 3333(a), (b), (c)(2) (federal law establishing procedures
for issuance and publication of grand jury report concerning certain noncriminal conduct by public official, including
procedures to provide the official who is the subject of the report with notice, an opportunity to present evidence, right
to file answer which becomes part ofreport, and judicial review prior to publication).
The Honorable Stephen Bret Tyler - Page 5 (KP-0137)
SUMMARY
The Legislature authorized grand juries to inquire into all
offenses liable to indictment and report their findings by the return
or rejection of an indictment.
As article 2.03(a) of the Code of Criminal Procedure does
not implicitly grant the grand jury additional authority to issue
reports other than indictments, a district clerk has no legal obligation
to accept a grand jury report prepared under article 2.03(a) as part
of an investigation into official misconduct.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee