January 28, 1975
The Honorable A. R. Schwartz Opinion No. H- 508
Chairman, Jurisprudence Committee
Texas State Senate Re: The applicability of articles
Capitol Building 36.03(a)(l) and 36.04(a) to
Austin, Texas 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 understand-
ind 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 considera-
tions other than those authorized by law.
(b) For purposes of this section, ‘adjudicatory pro-
ceeding” 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 with-
i’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
Untitled Texas Attorney General Opinion
Combined Opinion