### KEN PAXTON ATTORNEY GENERAL OF TEXAS

March 20, 2017

The Honorable Stephen Bret Tyler Victoria County Criminal District Attorney 205 North Bridge Street, Suite 301 Victoria, Texas 77901
Dear Mr. Tyler: Opinion No. KP-0137 Re: Procedures for a grand jury to report its findings and the district clerk's obligations related to that report**(RQ~0129-KP)**

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 "grandjury reports prepared as part ofinvestigations into official misconductconducted under article 2.03 of the Texas Code ofCriminal Procedure may be filed with the district clerk." Request Letter at 9- 10. Article 2.03(a) provides: It shall be the duty ofthe attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure ofany duty enjoined upon such officer, when such neglect or failure can be presentedby information, whenever it shall come to the knowledge ofsaid attorneythatthere has been a neglect or failure ofduty upon the part ofsaid officer; and he shall bring to the notice ofthe grandjury any act ofviolation oflaw 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 grandjury has legal authority to deliver a report otherthanthe return ofindictments. See Request Letter at 1-2. The Legislature sets forth the authority ofthe grand jury in three principal provisions ofthe Code of Criminal Procedure. First, article 20.09 ofthe Code ofCriminal Procedure sets forth the duties ofthe 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

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The grandjury shall inquire into all offenses liable to indictment of which any member may have knowledge, or ofwhich theyshall be informed by the attorney representing the State, or any other credible person. TEX. CODE CRIM. PROC. art. 20.09 ("Duties ofgrandjury") (emphasis added). Article 20.19 ofthe Code of Criminal Procedure then provides for voting on the presentment of an indictment by members ofthe grandjuryafterhearingtestimony. Id. art. 20.19 ("Grandjuryshall vote"). Article 20.19 states: After all the testimony which is accessible to the grandjury shall have been given in respectto any criminal accusation, the vote shall be taken as to the presentment ofan indictment, and ifnine members concurinfinding 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 ofthe Code ofCriminal Procedure addressesthe matter ofthe grandjury'sreportto the court. Id. art. 20.21 ("Indictmentpresented"). Article 20.21 states: When the indictment is ready to be presented, the grandjury shall through their foreman, deliver the indictment to thejudge or clerk ofthe court. Atleastninemembers ofthe grandjurymustbepresent on such occasion. Id. (emphasis added). Construing the plain language of these provisions collectively, this office previously concluded that Texas law authorizes grandjuries to report by indictment only. Tex. Att'y Gen. Op. No. M-1171 (1972) at 2 ("[U]nder the lawofTexas, the power ofthe Grand Jury is limited to investigating possible criminal offenses and delivering any resulting indictment to the district court."). As the only grandjury report authorized by law is an indictment, this office concluded that grandjuries 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 orto make any investigationinto 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 ("Grandjuries 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 disclosejuryreports otherthan indictments); see also Tex. Att'y Gen. Op. No. JM-1119 (1989) at 2 (concluding grandjuryreport lacked statutory underpinnings to render it a binding order).The Honorable Stephen Bret Tyler

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In your letter, you urge us to reconsider or limit these previous opinions, contending that in reaching the conclusionthat Texas law authorizes grandjuriesto 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 grandjury any act ofviolation oflaw or neglect or failure ofduty upon the part ofany 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 grandjuryunder article 2.03(a). Request Letter at 1-3. Article 2.03(a) does not expressly authorize the creation ofa grandjuryreport, norprovide for the filing orpublication ofsuch a report. Rather, the provisiondoes not speakto howthe grand jury should proceed when it receives notice ofan officer's alleged violation oflaw or neglect of duty. We must, however, examine article 2.03 in its proper context. Fitzgeraldv. AdvancedSpine 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 grandjury to report by indictment. See TEX. CODE CRIM. PROC. arts. 20.09, 20.19, 20.21. The text ofarticle 2.03 does not suggest an implied grant ofadditional 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 grandjuryto 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 grandjury 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 ofthe grandjury 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 grandjury's "authority and duty is limited to inquiring into criminal accusations and determining whether evidence exists to formally charge a person with an offense");Altv. State, 203 S.W. 53, 54 (Tex. Crim. App. 1918) ("The grandjury is only empowered to inquire into violations ofcriminal laws ofTexas."). This construction is also consistent with article 20.02, which provides that "[t]he proceedings ofthe grandjury 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 absolutelyprivilegedin libel suit). Forthese reasons, aTexas court is likelyto concludethat article 2.03(a) authorizes a grandjury 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 ofpolicy arguments supporting the issuance and publication of grandjuryreports. See id. at 3-9. A Texas court "may not override the Legislature's intent in favor ofcountervailing policy considerations." Garcia v. State, 387 S.W.3d 20, 25 (Tex. Crim. App. 2012).The Honorable Stephen Bret Tyler

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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.

3The Legislature may, in its wisdom, provide for the creation andpublication ofgrandjuryreports concerning noncriminal conduct ofpublic officials. See, e.g., 18. U.S.C. § 3333(a), (b), (c)(2) (federal law establishingprocedures for issuance and publication ofgrandjuryreport concerning certain noncriminal conduct by public official, including procedures to provide the official who is the subject ofthe report with notice, an opportunity to present evidence, right to file answer which becomes part ofreport, andjudicial review priorto publication).The Honorable Stephen Bret Tyler

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SUMMARY The Legislature authorized grand juries to inquire into all offenses liable to indictment and report their findings by the return or rejection ofan indictment. As article 2.03(a) ofthe Code of Criminal Procedure does not implicitly grant the grand jury additional authority to issue reports otherthan indictments, a district clerkhas no legal obligation to accept a grandjury report prepared under article 2.03(a) as part ofan investigation into official misconduct.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee ASHLEY FRANKLIN Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee