January 28, 1975 

The Honorable A. R. Schwartz 

Chairman, Jurisprudence Committee 

Texas State Senate 

Capitol Building 

Austin, Texas 

Opinion No. H- 508 

Re: The applicability of articles 

36.03(a)(l) and 36.04(a) to 

correspondence by an attorney 

in behalf of a client addressed 

to a grand jury. 

Dear Senator Schwartz: 

You have asked our opinion as to the applicability of sections 36.03 

and 36.04 of the Texas Penal Code to situations where an attorney 

corresponds with a grand jury in behalf of a client and furnishes a copy 

of such correspondence to the prosecuting atto~rney. You describe the 

situation involved as follows: 

Under Chapter 36 of the new Texas Penal Code, 

Sets. 36.03(a) (1) and 36.04(a)(b), certain influences 

toward public officials are made criminal. It has 

been the practice in Texas for years to permit counsel 

to correspond with Grand Juries regarding pending 

matters provided that opposing counsel is given copies 

of the correspondence and that the correspondence 

contains only a factual presentation. It is my understandind that such communication,when made openly and with 

notice to opposing counsel,has not affected the secrecy 

of the Grand Jury proceedings and has been found 

appropriate under previous Texas law on the notion that 

it is the Grand Jury’s duty to hear all of the facts in a 

case. 

. . . . 

p. 2290 
The Honorable A. R. Schwartz page 2 (H-508) 

My question relates to whether Sets. 36.03(a)(l) 

and 36.04(a)(b) specifically, or any other Sections of 

Chapter 36 of the new Texas Penal Code, now prohibit 

such correspondence by Texas attorneys to Texas Grand 

Juries. 

Section 36.03 provides in pertinent part: 

(a) A person commits an offense if by means of 

coercion he: 

(1) influences or attempts to influence a public 

servant in a specific exercise of his official power 

or a specific performance of his official duty: . : . 

Section 36;04 reads in part: 

(a) A person commits an offense if he privately. 

addressees a representation, ‘~entreaty, argument, or 

other communication to any public servant who exer-’ 

cises or will exercise official discretion in an 

adjudicatory proceeding with an intent to influence the 

outcome of the proceeding on the basis of considerations other than those authorized by law. 

(b) For purposes of this section, ‘adjudicatory proceeding” means any proceeding before a court or any 

other agency of government in which the legal rights, 

powers, duties, or privileges of specified parties are 

determined. 

Notice is made that the term “public servant” as used in sections 

36.03 and 36.04 includes a grand juror. Section l.O7(a)(30)(B). 

Considering first the relevance of section 36.03 to the question 

posed, it is clear that the action of a lawyer, in addressing a grand jury 

by letter in behalf of a client, does not necessarily come within the purview 

p. .2291 
The Honorable A. R. Schwartz page 3 (H-508) 

of section 36.03. When it is limited to factual matters such communication 

is not “coercion” as defined by section 36.01, since “coercion” must 

include a “threat. ” See sec. 36.01, Texas Penal Code. 

- 

Thus, an attorney’s communication by letter with a grand jury 

in the course of representing a client, the’letter containing no “threat” 

to take some action against the grand jury, does not violate the 

injunctions of section 36.03(a) (1) of the Penal Code. 

You observe that the lawyer writes to the grand jury as a body 

and not individually to a member and furnishes a copy of the letter to 

the opposing counsel, the prosecuting attorney. It is evident, that the 

attorney has not “privately addressed a representation, entreaty, 

argument or other communication to&j public servant” as would be 

required to generate a violation of section 36.04(a). 

We therefore are of the opinion that correspondence by a lawyer 

to a grands jury, where the communication is addressed to the panel and 

a copy is giverrto the prosecuting attorney and where there is no “threat” 

against the grand jury contained in the correspondence, is not conduct withi’ii’ tli e operation of either section 36.03 or 36.04. Further, we know 

of no other section of Chapter 36 of the Penal Code which would encompass 

the type of communication discussed herein. 

SUMMARY 

Correspondence of counsel addressed to a grand 

jury in behalf of a client, a copy of which is delivered 

to the prosecuting attorney, is not prohibited by articles 

36.03(a)(l) or 36.04(a), nor by any other section of 

Chapter 36, Texas Penal Code, so long as it contains 

no threat. 

Very truly yours, 

Attorney General of Texas 

p. 2292 
The Honorable A. R. Schwartz page 4 (H-508) 

APPROVED: 

DAVID M. KENDALL, First Assistant 

I C. ROBERT HEATH,, Chairman 

Opinion dom&tek .’ 

., 

lg 

p. 2293