Who Can Present Evidence to a Texas Grand Jury?

A grand jury proceeding is often the first stage in prosecuting a defendant suspected of white collar crimes like securities fraud or money laundering. In Texas, 12-member grand juries review evidence presented by district attorneys before deciding whether to issue an indictment–a formal accusation against the defendant. Under state law, an indictment may be set aside if certain procedures were not followed. For example, at least 9 of the 12 grand jurors must agree to each article of the indictment.

Court Declines to Dismiss Indictment Procured by State Securities Regulator

Section 27.03 of the Texas Code of Criminal Procedure further states that an indictment is invalid if “some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or was voting upon the same.” Basically, only the grand jurors may be present while deliberating or voting. At all other times, such as questioning witnesses, the district attorney may be present and make presentations.

But what happens when someone who is not the district attorney deals with the grand jury? An appeals court in Fort Worth recently considered this question. The defendant here is under indictment for money laundering and awaiting trial. The district attorney allowed a lawyer for the Texas State Securities Board (TSSB) to present the case to the grand jury. The TSSB is an agency of the executive branch, while the district attorney is an officer of the judicial branch. Nonetheless, the district attorney “deputized” the TSSB lawyer to act on her behalf.

The defendant filed a petition for a writ of habeas corpus–in plain English, a judicial declaration that he is being unlawfully detained. Specifically, the defendant argued his indictment was invalid because the presentation of evidence to the grand jury was made by the TSSB lawyer acting beyond her “statutory and constitutional authority.” The defendant maintained dismissal of the indictment was necessary to protect his constitutional rights.

The appeals court disagreed. Affirming a trial judge’s earlier ruling, the appeals court said the defendant was not entitled to “immediate” habeas corpus relief under these circumstances. Even if the TSSB lawyer acted beyond her own legal authority, “an indictment is not rendered void or subject to dismissal merely because an improper, disqualified, or conflicted prosecutor presented a case to a grand jury.” The indictment would only be improper if an unqualified attorney was present during deliberations or voting, which was not the case here.

Are You Under Grand Jury Investigation?

The appeals court did not actually rule on the merits of the defendant’s claim that the TSSB attorney’s participation in his case was illegal or constitutional, only that habeas corpus was not the appropriate relief. There may be other remedies available. This is why it is important to challenge any irregularities during a grand jury proceeding. If you need help from an experienced Texas criminal defense lawyer in dealing with a grand jury investigation, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston, or League City today.