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 byan attorney in behalf of a client addressed toa 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 ofa 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. Ithas 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 ofthe correspondence and that the correspondence contains only a factual presentation. Itis my understandind that such communication,when made openly andwith notice to opposing counsel,has not affected the secrecy ofthe Grand Jury proceedings and has been found appropriate under previous Texas law on the notion that itis the Grand Jury’s duty tohear all ofthe facts in a case.

. . . .

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

My question relates towhether 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 apublic servant in a specific exercise ofhis official power or a specific performance ofhis official duty:
. : . Section 36;04 reads in part:

(a)A person commits an offense ifhe privately. addressees a representation, ‘~entreaty, argument, or other communication toany public servant who exer-’ cises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome ofthe 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 ofgovernment inwhich 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 ofa lawyer, inaddressing a grand jury by letter in behalf ofa client, does not necessarily come within the purview

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

of section 36.03. When it is limited tofactual 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)ofthe 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. Itis 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 aviolation of section 36.04(a).

We therefore are ofthe opinion that correspondence by a lawyer to a grandsjury, 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’ tlieoperation ofeither section 36.03 or 36.04. Further, we know ofno 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 ofa client, a copy ofwhich is delivered tothe 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. 2292The Honorable A. R. Schwartz page 4 (H-508)

APPROVED:

DAVID M. KENDALL, First Assistant

IC. ROBERT HEATH,, Chairman Opinion dom&tek

.’

., lg

p. 2293