(concurring).
I concur in the affirmance of this conviction, but would base that conclusion on different reasoning.
Appellant was charged with a violation of V.T.C.A., Penal Code Section 36.06(a), which provides:
“A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, or informant.”
It is pointed out in the Practice Commentary to Sec. 36.06, supra, that “ ‘Witness’ is not defined, but presumably the term will be construed to mean only one who testifies before an official proceeding, cf. Section 36.05; otherwise, location of the ‘witness’ part of the offense in this chapter would be inappropriate.”
V.T.C.A., Penal Code Section 36.05, provides:
“Sec. 36.05. Tampering with Witness
(a)A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence; or
(4) to absent himself from an official proceeding to which he has been legally summoned.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a) of this section.
(c) An offense under this section is a felony of the third degree.”
These two offenses are set out in Chapter 36, Bribery and Corrupt Influence, which is in Title 8, Offenses Against Public Administration. These two offenses also are the only ones in this chapter that speak of witnesses. Considering this and the requirement of Section 36.06, supra, that the acts be “in retaliation for or on account of the service of another as a . . witness . . .” (emphasis added), I would construe “witness” to mean one who testifies in an official proceeding.
“Official proceeding” is defined in V.T. C.A., Penal Code Section 36.01(3) as “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant authorized by law to take statements under oath.”
“Public servant,” as defined in V.T.C.A., Penal Code Section 1.07(a)(30), includes “(B) a juror or grand juror.”
Under this construction of the cited offenses and definitions in the Penal Code, the issue before us in this case would reduce itself to whether “grand juror” in Sec. 1.07(a)(30)(B), supra, includes members of a federal grand jury. I would hold that it does, and on this basis I concur in the judgment.
ROBERTS, J., joins in this concurrence.