Untitled Texas Attorney General Opinion ( 1994 )

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&date of IEexae
DAN MORALES
ATTORNEY
GENERAL May 2,1994
Honorable Roy C. Turcotte Opiion No. DM-291
Kenedy County Attorney
P.O. Box 186 Re: Whether a Kleberg County grand jury
Sarita, Texas 78385 is authorized to return an indictment for an
offense that was committed in Kenedy
County WWW
Dear Mr. Turcotte:
You ask, in essence, whether a Kleberg County grand jury is authorized to return
an indictment for an offense that was committed in Kenody County. You explain that
hundreds of people are detained for illegal activities at the United States customs
checkpoint in Kenedy County each year. Frequently, detainees are turned over to state
and local law enforcement officers for arrest and prosecution. Typically, such a detainee is
taken to Kleberg County where bail proceedings are held and the case is presented to a
grand jury. At arraignment, defendants who plead guilty usually consent to venue in
Kleberg County. If a defendant objects to venue in Kleberg County, the indictment is
dismissed, and the case is transferred to Kenedy County for presentation to a Kenedy
C-ty Brand jury.
Grand juries are authorized by several provisions of the Texas Constitution, but
none of these provisions defines the scope of their inquiry. See Tex. Const. art. I, 5 10;
art. V, $8 13, 17; art. XVI, 8 19; see&o Attorney General Opinion M-1171 (1972) at 1.
Orand jury duties are set forth in chapter 20 of the Code of Criminal Procedure. Article
20.09 provides that “[t]he 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.” Neither this provision nor
any other article in chapter 20 limits a grand jury to returning indictments for offenses
committed in the county. On the other hand, no provision in chapter 20 expressly states
that a grand jury is authorized to return an indictment for an offense committed in another
county. Thus, to answer your question, we look to the role of the grand jury in the larger
crimmal justice scheme, particularly its relationship to the venue statutes set forth in
chapter 13 of the Code of Criminal Procedure.
Kieberg, Kenedy, and Nueces Counties comprise a multicounty judicial district, the
105th Judicial District. See Gov’t Code 8 24.207. With certain exceptions, district courts
have original jurisdiction over felony cases. Tex. Const. art. V, $8 1,8; Code Crim. Proc.
8 4.05. Whereas jurisdiction goes to a court’s authority to hear a case, venue has to do
with the county where a case may be tried. Etchieson v. Store, 574 S.W.2d 753, 759
p. 1547
Honorable Boy C. Turcotte - Page 2 (m-291)
(Tex. Crim. App. 1978), cert. denied, 440 U.S. 936 (1979). Venue is governed by
statute. Generally, if venue is not speciScally provided for by statute, the proper county
for the prosecution of an offense is the county in which the offense was committed. Code
clim. Proc. art. 13.18.
The legislature has, in the case of some offenses, specifically provided for venue in
wunties other than the county where the offense was committed. For example, article
13.22 of the Code of Criminal Procedure provides that the offense of possession or
delivery of marihuana may be prosecuted in the county where the offense was committed
or, with the consent of the defendant, “in a county that is adjacent to and in the same
judicial district as the county where the offense was wmmitted.” In addition, article 13.20
of the Code of CriminaJ Procedure provides for venue by consent in certain circumstances:
The trial of all felony casg without a jury, may, with the
wnsent of the defendant in writing, his attorney, and the attorney for
the state, be held in any county within the judicial district or districts
for the county where venue is otherwise authorized by law.
We also note that the legislature has provided that when an offense may be prosecuted in
either of two or more counties, “the indictment may allege the offense to have been
wmmitted in the county where the same is prosecuted or in any wunty or place where
the offense was actually committed.” Code Crim. Proc. art. 21.06; see also Rushing v.
SrOre, 546 S.W.2d 610 (Tex. Grim. App. 1977) (holding that it was not error for
indictment to aver that the offense occurred in Dallas County when offense actually
occmred in another county within four hundred yards of the Dallas County line).
Under common law, venue was t&d in the county where an offense was
wmmitted, and grand juries generally were limited to inquiring into offenses committed
withinthe county. See 41 AM. JUR. 2d Indictmentsand Informtions 9 15, at 890; State
v. Lewis, 55 S.E. 600, 603-04 (N.C. 1906) (citing 4 W. BLACK~TO~, COMMENTARIES
l 303); Nichols v. State, 12 S.W. 500 (Tex. Ct. App. 1889). We are aware, however, of
no wnstitutional or statutory prohibition against a grand jury returning an indictment for
an offense which was committed outside the county but for which venue in the county
would be proper. See 22 TEX. JUR 3d CriminulLaw § 1933, at 75-76 (1982) (“there is
no provision of the state or federal constitution prohibiting the legislature from authorizing
a prosecution in a wunty other than the one where the offense was committed”) (citing
Treadgill v. State, 275 S.W.2d 658 (Tex. Crim. App. 1954)); State v. Bullock, 79 So. 337,
338 (Fla. 1918). We believe that when the legislature provides for venue in a county with
respect to a particular hind of offense, it also necessarily authorizes a grand jury in that
county to return an indictment for such an offense. For example, because section 13.22 of
the Code of Criminal Procedure provides for the prosecution of the offense of possession
or delivery of markma, with the consent of the defendant, in a wunty that is adjacent to
and in the same judicial district as the county where the offense was wmmitted, a grand
jury in such a county may properly return an indictment for such an offense. See gener&
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Honorable Roy C. Turwtte - Page 3 (DM-291)
Gomules v. State, 175 S.W. 706 (Tex. Crhn. App. 1915) (“The general rule where not
otherwise fixed by statutory enactment, is that the county in which the offense is
wmmitted alone has jurisdiction. The statute may change this order, and in many cases
has done so.“); see also Willed v. St&e, 87 S.W.2d 269,271-73 (Tex. Grim. App. 1935)
(on motion for rehearing) (explaining Gonzules, 175 SW. 706)’
You express the wncem that “[i]f it is the rule of law that the jurisdictional
authority of a grand jury is coextensive with the territorial jurisdiction of the court for
which it services in a multiwunty judicial district, then this logic would seem to authorize
a grand jury to investigate activities in any county within the judicial district. Conceivably
then, a Kenedy County grand jury could investigate and return indictments for offenses
owurring in Nueces or Kleberg counties.” Your concern overlooks the fact that the
legislature, in enacting the venue statutes, has necessarily authorized a grand jury to return
indictments for certain offenses wmmitted outside the county.2
For the foregoing reasons, we conclude that a Kleberg County grand jury may
return an indictment for an offense wmmitted in Kenedy County provided that venue
would he in Kleberg County. We do not determine whether a Kleberg County grand jury
would be authorized to return an indictment for a particular offense wmrnitted in Kenedy
County because you have not specified the types of offenses wmmitted in Kenedy County
for which the Kleberg County grand juries have returned indictments. Fur&more, the
determination whether it is appropriate for a grand jury to return an indictment for a
particular offense wmmitted in another wunty must be made on a case by case basis.
‘We do not believe that Pigg v. Store, 160 S.W. 691 flex. Grim.App. 1913). a case you ciie in
yourkUcr,istotkamtmy. Intbstcasc,thccourtcoacludcdthattbcgrandjuryhadtbcrighttoiaquirc
only abaut ‘o&ascs committed in Hsmilton amnty or that could be pawcuted In Hamilton county. Id.
at 693 @@iasis added). This s&tanat is tidy coasiaent with au amclosion hut. Rodgers v. Covnry
ojTayIor, 368 S.W.2d 794, 7% (Tex. Ci. App-M 1%3, writ r&d nxe.), invohrcs whether
paymnrstoacourt~foraanscribingagraodjurypmceedingconditutcdapropcrcountyacpcasc.
In rc May 1972 Son Antonio Grand Jmy. 366 F. Supp. 525 (W.D. Tcx. 1973). &ah with tk authorityof
afcdcdgmdjury. Neitbcroftk&tterhvucascsisdispcsitivcoftheissucsceasiderrdbcrc.
p. 1549
Honorable Roy C. Turwtte - Page 4 (DM-291)
SUMMARY
A Kleberg County grand jury may return an indictment for an
offense committed in Kenedy County for which venue in Kleberg
County is proper. The determination whether it is appropriate for a
grand jury to return an indictment for a particular offense wmmitted
in another county must be made on a case by case basis.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
DREW DURHAM
Deputy Attorney General for Criminal Justice
WILL PRYOR
Special Counsel
RENEA HICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Mary R. Grouter
Assistant Attorney General
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