dissenting.
I respectfully dissent. This case is before us on a petition for writ of mandamus. Relator, the Cameron County Attorney, has been ordered by respondent, the district judge of the 357th Judicial District, to turn over certain documents to the plaintiff, the real party in interest in this cause. By writ of mandamus, the county attorney seeks to have this Court vacate the order in question. I would grant the writ of mandamus sought.
The plaintiff, a former city attorney, brought an action for damages for malicious prosecution. As part of this action, the plaintiff seeks, through discovery, to have the county attorney of Cameron County disclose certain testimony of the Cameron County grand jury and the contents of the county attorney’s investigative files concerning the indictment and attempted prosecution of the plaintiff. The county attorney opposed this motion to disclose. A hearing was held before the district judge. After hearing the arguments of counsel, reviewing the evidence and reviewing the documents in camera, the judge ordered certain testimony that had been given to the grand jury disclosed and certain statements that the county attorney had obtained from witnesses turned over to the plaintiff. We have the grand jury testimony and the investigative files of the Cameron County Attorney before us, and I have made an in camera inspection of the contents thereof and agree with the county attorney that these documents should not be discoverable but should remain privileged.
This application for mandamus in this civil lawsuit presents two distinct legal questions evolving out of the discovery sought. The first question concerns whether or not the testimony before the grand jury that resulted in the indictment of the plaintiff is discoverable in a subsequent civil lawsuit. I believe that the common law of Texas, the various statutes involved, the Code of Criminal Procedure, and the decisions of other Texas appellate *581courts have precedential value in deciding this civil case.
As early as 1880, the old Court of Appeals of Texas in Rothschild v. State, 7 Tex.Ct.App. 519, 537-38 (1880) said:
The secrecy of the grand-jury room, and the purity and impartiality of that inquest, have ever been matters of watchful solicitude on the part of the law. Upon it depends in a great measure the safety and stability of society, and under the law no undue influence is permitted to sway its counsels or influence its actions.
In Ex parte Port, 674 S.W.2d 772, 779 n. 8 (Tex.Crim.App.1984), the Court of Criminal Appeals reiterated that communications to a grand jury are absolutely privileged. In the context of a libel and slander action, it was held in Hott v. Yarborough, 112 Tex. 179, 245 S.W. 676, 677 (Tex.Comm’n. App.1922, opinion adopted) that any communication to a grand jury in the regular performance of its duty was absolutely privileged and could not constitute the basis for any further civil action.
Not only do the statutes provide that every person at a grand jury session must take an oath not to divulge anything that transpires therein, they specifically make the disclosure of any such matter a criminal offense. It is not even a defense to one who has violated the rule of secrecy to show that he has not acted willfully.
In a case similar to the case at bar, it was held that the plaintiff in a malicious prosecution action could not discover, from the individual members of the grand jury the nature of the testimony before them. Bailey v. Victoria Bank & Trust Co., 114 S.W.2d 920, 921 (Tex.Civ.App.—San Antonio 1938, no writ).
Article 20.02 of the Texas Code of Criminal Procedure admonishes the grand jurors and the bailiff to keep secret everything that transpires before them in the course of their official duty. The attorney representing the State (in this case the Cameron County Attorney, the Hon. Benjamin Eu-resti, Jr.) may go before this grand jury, subpoena and examine witnesses, give legal advice to the grand jury, and prepare all indictments which have been found by the grand jury. All of these acts must remain secret.
The oath given by the district judge to the grand jurors as specified by the Code of Criminal Procedure may be dispositive of this case because it excepts only testimony to be used in a criminal case. The oath given is as follows:
You solemnly swear that you will diligently inquire into, and true presentment make, of all such matters and things as shall be given you in charge; the State’s counsel, your fellows and your own, you shall keep secret unless required to disclose the same in the courts of a judicial proceeding in which the truth or falsity of evidence given in the grand jury room, in a criminal case, shall be under investigation. You shall present no person from envy, hatred or malice; neither shall you leave any person unpre-sented for love, fear, favor, affection or hope of reward; but you shall present things truly as they come to your knowledge, according to the best of your understanding, so help you God. (Emphasis supplied).
It is well settled that grand jurors cannot testify regarding how they or any of their fellow jurors deliberated, what induced them to find their indictment, or to what opinion they voiced upon any questions properly before the grand jury. 24 AM JUR. Grand Jury § 48 (1939).
The oaths of witnesses who appear before the grand jury require them by law to keep secret their testimony. Tex.Code Crim.Proc.Ann. art. 20.16 (Vernon 1977). The oath they are required to take says:
You solemnly swear that you will not divulge, either by words or signs, any matter about which you may be interrogated, and that you will keep secret all proceedings of the grand jury which may be had in your presence, and that you will true answers make to such questions as may be propounded to you by the grand jury, or under its direction, so help you God.
*582I am aware of the availability of grand jury testimony in certain criminal cases as the Code of Criminal Procedure so provides. I am also aware of the fact that grand jury testimony may be discovered by a defendant in a criminal proceeding and that such grand jury evidence may be also used for impeachment in criminal proceedings. However, the use of such testimony by its very nature takes it out of the privilege as does any other privilege when the party who is entitled to assert the privilege relinquishes that privilege. Again, this disclosure is due to the fundamental rights of a criminal defendant. It has no bearing whatsoever on unrelated civil litigation.
The next issue raised is whether or not the investigative files of the Cameron County Attorney’s office concerning his underlying criminal investigation of the plaintiff may also be disclosed and used by this plaintiff in his suit for damages. The county attorney argues that the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp.1989), governs the disclosure of his investigative files. He claims that items which are excepted from disclosure under the Open Records Act are also privileged from disclosure. It is his position that article 6252-17a Sec. 3(a)(8) excludes from disclosure the county attorney’s investigative files. Section 3(a) generally says that all information except that specified under the subsections of 3(a) must be disclosed. Subsection (8) provides that the records of law enforcement agencies and prosecutors that deal with detection, investigation, and prosecution of crime and their internal records and notations are excepted from disclosure. While the Open Record Act does not require disclosure, I believe the statutes, the common law, and the case law protect the privilege.
In Hobson v. Moore, 734 S.W.2d 340, 340-41 (Tex.1987), our Supreme Court specifically recognized this privilege. In Hob-son, the Court recognized the need for confidentiality in law enforcement activities and said that the items mentioned under section 3(a)(8) of the Texas Open Records Act were excepted from disclosure in civil litigation. See also Houston Chronicle Publishing Company v. The City of Houston, 531 S.W.2d 177 (Tex.Civ.App.—Houston [14th Dist.] 1975), writ ref'd, n.r.e. per curiam, 536 S.W.2d 559 (Tex.1976). Clearly the items sought to be disclosed in this case are identical to those sought to be discovered in Hobson.
I firmly believe that the investigative files of the county attorney should be exempt from discovery because of the “chilling effect” their discovery would have upon witnesses and others who come forward to give factual information. The need for confidentiality within the criminal justice system requires that the statements given by witnesses to authorized prosecuting attorneys be confidential and excepted from discovery in subsequent civil litigation. To hold otherwise would further hamper an already burdened investigative system of the State’s attorneys throughout the State of Texas.
This common law policy is to inspire witnesses with a notion of confidence and security in the discharge of their duties to Grand jurors and to prosecuting attorneys. Witnesses can give evidence without fear of reprisal from an accused or any other person. Such privileged and secret testimony is allowed to secure the freedom to disclose evidence of alleged crimes to prosecutors and grand jurors. It also has other special effects that save the citizenry the trouble, expense and disgrace of having disclosed matters in the prosecuting attorney’s file that no longer have merit, especially when there is insufficient evidence to warrant a complaint or indictment. When such evidence is insufficient, it would serve no purpose to permit it to be aired in a civil trial. By its due observance, every witness will be assured that his testimony will be available only in a proper forum at a proper time. He will have every reason to believe that he will not be prosecuted through envy, hatred, or malice for statements given, or that improper influence penetrated the grand jury room. See Rothschild, supra.
The plaintiff in this civil law suit wants to open the door of the grand-jury room and pry open the private files of the county attorney to check his work papers, view the *583witness statements and find out who made statements. Such fishing expeditions would allow a plaintiff in a civil damage suit to second guess the results of the private investigation of the county attorney. This, I believe violates the sanctity of the criminal investigation procedure. It would have deleterious the effect on the voluntariness of witnesses who appear before the State’s attorney and grand juries in the interest of abating crime and seeking justice in criminal investigations.
The majority ignores the privilege of confidentiality afforded district and county attorneys and does in effect open the doors of the grand jury room to those seeking to discover information on the guise that it is pertinent to civil actions. Assisting a plaintiff in this manner is unnecessary because he has many proper procedural methods to help him learn the truth for his civil law suit.
The majority also seeks to distinguish cases cited by me in order to allow the discovery. However, in allowing this discovery, they have neglected to establish any boundaries or limitations concerning exactly what information could be discoverable by future litigants. The majority opinion raises more questions than it purports to answer.
I would hold that grand jury testimony should not be discovered regarding civil actions. I would grant the writ of mandamus.