# EATTOWNEY GENERAL OIFTEX.~~~

February 26, 1968

Honorable Richard H. Cory Chairman, State Affairs Committee Texas House of Representatives Capitol Station Austin, Texas 78711 Opinion No. M-206 Re: Immunity from prosecution for criminal acts resulting from persons testifying before aSubCommittee ofthe House Dear Mr. Cory: State Affairs Committtie.

Inyour recent opinion request concerning the above captioned matter, you asked whether awitness appearing before alegislative subcommittee, voluntarily invited or subpoenaed, who testifies concerning any unlawful acts inwhich he is implicated, would gain immunity from criminal prosecution ifhe so testifies without being under oath. You also asked whether the answer would be any different in case the witness was under oath at the time ofhis testimony, such oath being administered by the Chairman ofthe Committee or aNotary Public ofthe County ofthe hearing, and/or if such witness appears and so testifies in response to a subpoena.

First, we assume that the cwnmittee or sub-committee referred tobyyou is one duly authorized by statute and created by aHouse ofthe Legislature with aquorum present.

Generally, immunity from criminal prosecution is a concept which was unknown in common law andwhich is afforded only by virtue of either the Constitution or statutes. Neither the United States Constitution nor the Texas Constitution provide for immunity as such, but only give awitness the unqualified right to refuse to incriminate himself by testifying.

The Texas Legislature has provided by statute for immunity for witnesses required totestify over their objection before Legislative Committees. InSection 13ofArticle 5429f. Vernon’s Civil Statutes, anAct known as the “Legislative Reorganization Act of 1961,‘Iit is provided that awitness who refuses to testify to any fact or to produce any papers upon examination by either House ofthe Legislature, or by 

### anyComiilittee of any House, upon the ground that such would incriminate or tend to incriminate 

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Honorable Richard H. Cory, page 2, (M-206)

him, shall nevertheless be required to testify and produce papers, butwhen so required, over his said objections, such person shall not be subject to indictment or prosecution bythe State ofTexas for any transaction, matter or thing concerning which he truthfully testifies or produces evidence, documentary or otherwise. This statute has been upheld. Ferrantello v, State, 158Tex. Crim. R 471, 256S.W.2d 587,!1953).
,$:I Inview ofthe foregoing, it is our opinion, under the circumstances posed inyour questions, that before such witness would be entitled to the immunity from prosecution afforded by Section 13ofArticle 5429f, hewould first have to refuse to testify, in response to aquestion put tohim by such committee, onthe ground that such testimony or production ofpapers would : incriminate or tend to incriminate him. Then ifananswer to such question was insisted upon bythe committee, such witness would gain immunity from state prosecution concerning the matter or thing about which he truthfully testifies or produces evidence thereon.

The foregoing is true as to such witness whether under oath or under waiver thereof as provided in Section 11of said Article 5429f. While subpoenas are authorized for the production ofwitnesses in such cases, it is not considered that they are necessary inall cases; and consequently whether such witness appea~rs voluntarily, is invited, or is subpoenaed, these facts would notchange theforegoing answer. Howeve.r; in order for the answer given bythe witness who is required to testify on subjects over his objections to invoke immunity, itmust appear that the answer is truthful as to the matter inquired about. Answers given by him that are unresponsive would not invoke immunity concerning the matter testified about, being not in issue and not required by the committee or the House conducting the investigation. SUMMARY Awitness appearing before aduly constituted and authorized sub-committee ofthe House State Affairs Committee. eithervoluntarily, invited or subpoenaed will gain immunity from state criminal prosecution concerning any unlawful acts about which he is required totestify over his objection, whether his testimony be under oath, or such oath is waived by the sub-committee.Honorable Richard I-I. Cory, page 3, (M-206)

Unresponsive answers afford the witness no immunity.

eneral ofTexas Prepared by R. L. (Bob) Lattimore Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Roger Tyler Robert Owen John Banks Harold Kennedy Lenny Zwien~er ., ~.~, ~.~ A. J. CARUBBI, JR. Executive Assistant

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