Untitled Texas Attorney General Opinion

@ffice of the Elttornep @eneral &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& p. 1548 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 p. 1550