PUBLIC AFFAIRS SERIES NUMBER SIXTY-ONE

THE TEXAS GRAND JURY

Stuart A. MacCorkle
Professor of Government and
Director of the Institute of Public Afairs

INSTITUTE OF PUBLIC AFFAIRS

AUSTIN : THE UNIVERSITY OF TEXAS : 1964
 Copyright 1964
BOARD OF REGENTS
PHE UNIVERSITY OF TEXAS

PRICE ONE DOLLAR

 Foreword
This study is the result of a term of service on the Grand
Jury of Travis County by the author. Its aim is to make avail-
able to future Texas grand jurors a general source of informa-
tion on the functions and powers of the grand jury and of the
juror's duties and responsibilities as a member of this impor-
tant body. This brochure is in no way presented as a sub-
stitute for the "charge to the grand jury" given by the district
judge to each new grand jury, nor is it intended as a substitute
for any instructions or material that may be presented this
body by either the judge or the district attorney.
There are perhaps few services more important to the wel-
fare of the state than that of serving on a grand jury. In addi-
tion to its responsibilities in connection with the criminal
proceedings of this state, the grand jury is charged with the
over-all responsibility of maintaining good and efficient gov-
ernment on both the state and local levels. Its powers of in-
vestigation into the organization and operation of govern-
ment and of making recommendations are both far reaching
and significant. The upholding of the fundamentals of justice
under law is essential to a democratic government.
Both the Institute and the author are very appreciative of
the assistance of various persons in the preparation of this
brochure. Mr. Samuel David Ward, senior law student in the
School of Law at The University of Texas during 1963-64,
assisted with the research and Miss Charldean Newell, Re-
search Associate, Institute of Public Affairs, checked the foot-
notes for accuracy. Both Judge Mace B. Thurman, Jr. of the
147th Judicial District Court and Judge Thomas I. McFarling,
Corporation Court, Austin, Texas, read the study in manu-
script form with the result that a number of their suggestions
have been incorporated herein.
 The author wishes to express special thanks to Mr. Tom
Blackwell, District Attorney, Travis County, Texas, for the
personal interest he has taken in this project. He not only en-
couraged the author to undertake it, but he has assisted in
the preparation of the manuscript by making many valuable
suggestions which have added to its accuracy and the im-
provement of the final draft. To Mr. Blackwell we are most
grateful.
STUART A. MACCORKLE
Director
Austin, Texas December. 1964
 Table of Contents

ORIGIN .......................................................

THE NATURE OF THE JURY'S FUNCTION

IMPORTANCE OF THE OFFICE . . . .

THE JURY COMMISSION ...............................

QUALIFICATIONS OF GRAND JURORS

EXEMPTIONS FROM SERVICE . . . .

CHALLENGES OF JURY PANELS

THE OATH TAKEN .........................................

SCOPE OF INQUIRY ........................................

PROCEDURE IN JURY SESSIONS . . . .

EVIDENCE REQUIRED .....................................

CONSIDERATION OF PUNISHMENT

THE SUMMONING OF WITNESSES

THE JURY'S REPORT .......................................

 The Texas Grand Jury

ORIGIN

Trial by jury is an English tradition of ancient origin. Al-

though the time of its beginning is obscure, the idea was rec-
ognized as early as 1215 when King John granted the Magna
Carta at the demand of English noblemen.1 In the early days,
the jury decided only that there was cause to suspect a person
of a crime. Guilt or innocence was determined by battle or by
ordeal. Later, as the concept of a grand jury began to emerge,
the jury both accused the person suspected and determined
his guilt or innocence. In those days, some or all of the mem-
bers of the grand jury also sat on the petit, or trial, jury, and if
these men voted to acquit someone whom they had previously
accused, the judge would sometimes say they had contra-
dicted themselves and, therefore, should be punished.2
By the reign of Henry III (1216-1272), juries in the royal
court were used for discovering and presenting to the king's
officials persons suspected of serious crimes.3 Eventually,
statutes were passed preventing a person who served on the
grand jury from being on the trial jury deciding the same case.
By the time of the first settlement in America, the grand jury
had become only an informing and accusing tribunal and no
longer did it determine the guilt or innocence of the indi-
vidual.
At various times in English history when conflict arose over
the powers of the king and the rights of his subjects, the
1
State Grand Jury Handbook, (American Bar Association, no date), p. 8.
2
Charles S. Potts, Criminal Procedure from Arrest to Trial," Texas Law
Review, 26 (May, 1948) 616.
3
. Jack Pope, "The Jury," Texas Law Review, 39 (April, 1961) 434.

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 THE TEXAS GRAND JURY

grand jury often stood as a barrier to protect against persecu-

tion by the Crown. Today, in this country, the grand jury is
designed to bring to trial persons accused of public offenses
upon just grounds and to protect the citizen against unwar-
ranted prosecution, either by the government or by any per-
son moved by private enmity. The fifth amendment to the
Constitution of the United States provides that:
No person shall be held to answer for a capital or otherwise
infamous crime unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the militia, when in actual service in time of war or public
danger....
The Consitution of the State of Texas reads in part as follows:
. . . and no person shah1 be held to answer for a criminal offense,
unless on an indictment of a grand jury, except in cases in which
the punishment is by fine or imprisonment, otherwise than in the
penitentiary; in cases of impeachment and in cases arising in the
army or navy, or in the militia, when in actual service in time of
war or public danger.4

THE NATURE OF THE JURY'S FUNCTION

The legal encyclopedia, Corpus Juris, defines a grand jury

as follows:
A grand jury is a body of men selected and summoned ac-
cording to law to serve before a competent court and by such
court empaneled, sworn and charged to inquire in regard to
crimes committed within its jurisdiction and to present'all of-
fenders against the law in the mode and manner defined by it.5
As this definition indicates, the grand jury determines
whether a crime has been committed and whether it is prob-
able that the one accused committed it. In this respect, it dif-
fers from the petit, or trial, jury which determines the actual

Constitution of the State of Texas, Art. I, sec. 10.

Corpus Juris, XXVIII (1922), 763. Hereafter referred to as C.J.
F21
 THE TEXAS GRAND JURY

guilt or innocence of the accused in a particular case. The

grand jury is concerned with estimating probability of guill
and serves somewhat in the capacity of a preliminary screen-
ing body of broad community activity. The trial jury musl
find guilt "beyond a reasonable doubt" or release the accused
from custody. While a trial jury is empaneled to try one case
only and to go out of existence, the grand jury's life is for a
full term of court.6 In this manner, the citizens themselves,
through their representatives the grand jurors, play a large
part in the maintenance of order in their community. The
grand jury's responsibility cannot be delegated to any other
governmental authority.
The grand jury does not try any case. It normally hears
only the evidence presented to it by the prosecuting authori-
ties. In many cases it may hear no evidence for the defense
and, indeed, it rarely hears evidence from the accused him-
self, although it may afford him the opportunity to testify if
he wishes. Having heard the evidence most damaging to the
accused, the grand jury has the function to determine whether
or not that evidence justifies a formal indictment.
The grand jury may hear charges of crime brought before
it through several channels: (1) by the court, (2) by the
prosecuting attorney, (3) by any credible citizen, or (4) by
one or more of its own members. If any grand juror obtains
notice that a felony has been committed, it is good practice
for him to submit this information to the jury foreman and
prosecuting attorney, without revealing this knowledge to
anyone else. This procedure makes possible an orderly
investigation.
While a person or situation is under investigation by the
grand jury, no one may approach an individual grand juror
6
A term of court in Texas may last from three to six months depending
upon the county involved. Vernon's Annotated Revised Civil Statutes of the
State of Texas, Arts. 199, 1919 et seq. Hereafter referred to as V.A.C.S.
m
 THE TEXAS GRAND JURY

in an attempt to persuade him that an indictment should, 01

should not, be returned. If a person has some evidence con-
cerning the matter, he should confer with the prosecuting
officer in order that he might be heard by the grand jury as a
whole. Any citizen may petition the grand jury for permis-
sion to appear before it in order to urge that a certain situa-
tion be investigated.
Finally, it must be noted that the grand juror is a public
official. In this capacity it is his duty to uphold the law as it
exists, not as he thinks it should be. He may criticize a particu-
lar law as a private citizen, but when he is in the grand jury
room, he is not asked to pass upon the merits of the law.

IMPORTANCE OF THE OFFICE

In time of peace, no citizen is able to perform a higher duty

than to render grand jury service. The grand jury is designed
to be a body of discreet persons called together to protect the
public interest, to preserve order, and at the same time to
guard and defend the rights of the individual. It hears wit-
nesses who support a charge of crime and determines if the
accused should be brought to trial on the charge. Thus no
body of citizens exercises functions more vital to the admin-
istration of law and order.
The importance of the grand jury's power comes from the
fact that it is an independent body answerable to no one ex-
cept the court itself. Membership on the grand jury is con-
sidered an honor and imposes a solemn responsibility. The
proper functioning of the grand jury depends upon the ability
and attitude of its members—on how willingly they serve, how
well they are informed, and how seriously they undertake
their duties.
In order to insure responsible membership on the grand
jury, Texas statutes establish the qualifications for grand
F41
 THE TEXAS GRAND JURY

jurors and prescribe the method by which they are to be

selected.
THE JURY COMMISSION

The district judge in obtaining a grand jury appoints a jury

commission of no fewer than three nor more than five mem-
bers at the beginning of or during each term of court. This
commission in turn selects a grand jury. The statute requires
that commissioners meet the following qualifications:
1. Be intelligent citizens of the county and be able to read and
write the English language;
2. Be qualified jurors and freeholders in the county;
3. Have no suit in said court which requires intervention of a
jury;
4. Be residents of different portions of the county;
5. The same person shall not act as jury commissioner more than
once in the same year.7
The law further requires that there be no racial discrimina-
tion in the selection of jury commissioners or grand jurors.
This means that there may be no systematic exclusion from
consideration of any race in the selection of either body. In
other respects, the district judge has a great deal of discretion
in making his selections.8
Jury commissioners are compensated at the rate of four
dollars for each day spent in making their selections, and their
tenure is for one term of court.
After the names of the prospective commissioners have
been chosen, the district judge instructs the sheriff or con-
stable to notify the appointees of their selection and to in-
form them as to the time and place they are to appear. Upon
1
Vemon's Annotated Code of Criminal Procedure of the State of Texas,
Art. 333. Hereafter referred to as V.C.C.P.
8
For instance, the failure to pay a poll tax does not disqualify an otherwise
qualified commissioner from serving. Hammond v. State, 163 Tex. Grim. Rep.
471, 293 S.W. 2d 652 (Grim. App. 1956).
rsi
 THE TEXAS GRAND JURY

their appearance in court, the judge administers to them this

oath:

You do swear faithfully to discharge the duties required oi

you as jury commissioners; that you will not knowingly elecl
any man as juryman whom you believe to be unfit and not quali-
fied . . . that you will not, directly or indirectly, converse with
anyone selected by you as a juryman concerning the merits oi
any case to be tried at the next term of this court, until after said
cause may be tried or continued, or the jury discharged.9

After taking the above oath, the jury commissioners re-

ceive instructions as to their duties from the judge. They then
retire to make their selections and are not to separate until
their task is completed, except by permission of the court. The
district clerk furnishes them a list of names of those who ap-
pear from the records of the court to be exempt or disquali-
fied from service on the grand jury. He also furnishes them
the last tax assessment roll of the county. With this informa-
tion before them, the commissioners select sixteen prospective
grand jurors. The names of those selected are written down in
numerical sequence, sealed in an envelope, and delivered to
the district judge in open court. The judge transmits the en-
velope to the district clerk.
The district judge designates the day on which the grand
jurors are to be qualified and empaneled and notifies the clerk.
Within thirty days, the clerk opens the envelope, certifies the
names of juror-candidates and the date upon which they are
to be summoned, and gives the list to the sheriff. It is the
sheriff's duty to issue a summons to those named, at least
three days before the grand jury is to be empaneled.10

9 V.C.C.P., Art. 335.

10
A juror legally summoned and failing to attend without a reasonable
excuse, may, by order of the court, be fined not less than ten nor more than
one hundred dollars. V.C.C.P., Art. 347.
 THE TEXAS GRAND JURY

When as many as twelve of those summoned to serve are

in attendance in court, the judge proceeds to interrogate
them, under oath, concerning their qualifications.

QUALIFICATIONS OF GRAND JURORS

The statute provides that no person shall be selected 01

serve as a grand juror in Texas who does not possess the fol-
lowing qualifications:
1. He must be a citizen of the State, and of the county in which
he is to serve, and qualified under the Constitution and laws to
vote in said county; but, whenever it shall be made to appear
to the court that the requisite number of jurors who have paid
their poll taxes cannot be found within the county, the court
shall not regard the payment of poll taxes as a qualification for
service as a juror.
2. He must be a freeholder within the State, or a householder
within the county.
3. He must be of sound mind and good moral character.
4. He must be able to read and write.
5. He must not have been convicted of any felony.
6. He must not be under indictment or other legal accusation
for dieft or any other felony.11

The provisions of this article are mandatory and are binding

on the jury commission in selecting prospective grand jurors.
Women were not considered qualified as grand jurors until
1954, when the state constitution was amended to provide
that whenever in the statutes the term "men" is used in refer-
ence to grand or petit jurors, it is meant to include persons of
the female as well as the male sex.12

11
V.C.C.P., Art. 339.
12
Constitution of the State of Texas, Art. XVI, sec. 19. A male indicted by
an all-male grand jury may not avail himself of this provision to challenge
the legality of his indictment, but it is possible that a woman indicted by an
all-male grand jury might be allowed to do so. Schwarz v. State, 357 S.W.
2d393 (Grim. App. 1962).
 These qualifications represent the bare letter of the law
It is the jury commission's responsibility to abide by the spiril
of the law by selecting able and distinguished citizens in the
community to compose the grand jury.
The first twelve persons in the list of sixteen to qualify are
sworn in as grand jurors, as a legally constituted grand jury
must consist of this number. Twelve persons are also re-
quired for a criminal trial jury. Precisely why the accepted
number is twelve on the traditional jury is not known. The
origin, as the 17th century English jurist Sir Edward Coke
said, is shrouded in an "abundance of mystery."13

EXEMPTIONS FROM SERVICE

Persons otherwise qualified for grand jury service may

claim an exemption from duty on one of several grounds. The
district judge may, at his discretion, instruct the jury commis-
sion not to select exempt persons. However, the court is not
compelled to do this, and persons entitled to exemption may
serve on the grand jury if they wish. The exemption is a per-
sonal privilege which may be claimed or waived by the party
for whose benefit it was granted. The Texas statutes provide
that the following persons may claim an exemption:
1. All persons over sixty-five (65) years of age.
2. All civil officers of this State or the United States.
3. All overseers of roads.
4. All ministers of the gospel engaged in the active discharge of
their ministerial duties.
5. All physicians, dentists, and attorneys and spouses of attor
neys engaged in actual practice.
6. All railroad station agents, conductors, engineers and firemen-
of railroad companies when engaged in the regular and actual
discharge of their respective positions.
7. Any person who has acted as a jury commissioner within the
preceding twelve (12) months.
8. All members of the national guard of this State under the pro-

XXVII C.J. 764.

[81
 THE TEXAS GRAND JUBY

visions of the title "Militia" during periods of time when they

are actually on active duty.
9. In cities and towns having a population of one thousand
(1000) or more inhabitants, according to the last preceding
United States Census, the active members of organized fire com
panies, not to exceed twenty (20) to each one thousand (1000)
of such inhabitants.
10. All females who have legal custody of a child or children
under the age of sixteen (16) years.
11. All registered, practical and vocational nurses actively en
gaged in the practice of their profession.
12. Any practitioner who treats the sick by prayer or spiritual
means in accordance with the tenets, teachings or practice of
any well established church or denomination, or a nurse who
cares for the sick who are under treatment by such spiritual
means, or a reader whose duty is to conduct regular religious
services of such church or denomination.
13. All licensed morticians who are actively engaged in the
practice of their profession.
14. All registered pharmacists who are actively engaged in the
practice of their profession.
15. Agents and patrolmen engaged in forestry protection work
employed by the State Department of Forestry when engaged in
the actual discharge of their duties.
16. The wife of any man who is summoned to serve on the same
jury panel.
17. All school teachers, which shall include public, parochial and
private school teachers.14
As a rule, exempt persons selected to serve are urged not to
exercise their right of exemption in the absence of necessity,
for some of the most talented citizens in the community may
fall in the exempt categories.

CHALLENGES OF JURY PANELS

Before the district judge administers the oath to the grand
jurors, any person so desiring may challenge the empanel-
ment of the group as a whole or any one of them in particular.
Normally, the district judge asks the prosecutor if he has any
V.A.C.S., Art. 2135.
ro.1
 THE TEXAS GRAND JURY

challenges. Then any attorneys present in the courtroom arc

given an opportunity to challenge. Finally, the judge asks the
sheriff if the prisoners in the county jail have been notified oJ
the names of the prospective jurors and of their right to chal-
lenge the jury's empanelment.
Grand jurors may be challenged for specific reasons only
these reasons being set forth in the statute. A challenge to the
panel as a whole is called a "challenge to the array." This chal-
lenge must be made in writing and may only be based on the
following statutory reasons:

1. That those summoned as grand jurors are not in fact those

selected by the jury commissioners.
2. In case of grand jurors summoned by order of the court, that
the officer who summoned them had acted corruptly in sum
moning any one or more of them.15

A challenge to a particular grand juror is called a personal

challenge. It may be made orally and for the following causes
defined by statute:
1. That he is not a qualified grand juror.
2. That he is the prosecutor upon an accusation against the per
son making the challenge.
3. That he is related by consanguinity or affinity to one who has
been held to bail or who is in confinement upon a criminal ac
cusation.16

A prosecutor as used here is defined as one who prefers an

accusation against a party whom he suspects to be guilty."
"Consanguinity" means relation by blood, and "affinity"
means relation by marriage.18

15
V.C.C.P., Art. 361.
16
V.C.C.P., Art. 362.
" Arnold v. State, 148 Tex. Grim. Rep. 310, 186 S.W. 2d 995, 158 A.L.R.
1356 (Grim. App. 1945). 18 Black's Law Dictionary, p. 81.
rioi
 THE TEXAS GRAND JURY

THE OATH TAKEN

After qualifications have been established, exemptions

claimed, and challenges ruled upon, the twelve established
jurors are ready to be sworn. The district judge appoints one
of the number foreman. The judge then administers the statu-
tory oath as quoted below:
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 course 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
unpresented for love, fear, favor, affection or hope of reward;
but you shall present things truly as they come to your knowl-
edge, according to the best of your understanding, so help you
God.19
The statutes specifically provide that the deliberations of
the grand jury shall be secret, and any grand juror who dis-
closes information regarding its official activities is subject to
fine and imprisonment. Secrecy is an integral part of the
grand jury concept. It is necessary to protect the grand jurors
themselves from pressure by persons who may be involved in
the actions of the jury. Secrecy is helpful in preventing sus-
pected persons from escaping while an indictment against
them is under consideration. It also prevents witnesses ap-
pearing before the grand jury from being tampered with or
intimidated in case the alleged offender goes on trial. Instead,
it encourages witnesses to give full information to the grand
ury. The final and perhaps most important reason for secrecy
is to protect a wrongly charged person from public disgrace.
After the presiding judge has administered the oath, he
19
V.C.C.P., Art. 365.

[HI
 THE TEXAS GRAND JURY

may advise the grand jury formally and in more detail as to

its duties and responsibilities. This address is spoken of as the
"charge to the grand jury." It serves as a controlling guide to
the jurors, although the court will, as the occasion arises, rule
authoritatively on any particular question of law that the
grand jury wishes to have answered regarding its duties and
powers.
Upon the completion of the charge, the grand jury is ready
to begin its work. The group is escorted into the grand jury
room, and the foreman may appoint one or more of its mem-
bers to serve as secretaries since it is important that accurate
records of the jury's actions be kept. The jury itself determines
the days and the hours it will meet and, with the advice of the
prosecuting attorney, the number of cases to be taken up at
each meeting.

SCOPE OF INQUIRY

The grand jury is empowered to inquire into those viola-

tions of the criminal law liable to indictment of which any
member may have knowledge, or of which they are informed
by the attorney representing the state, or which are submitted
by any other credible person.20 The jury investigates felonies
committed within the county, since no person may be tried
for these crimes without first having been indicted by a
grand jury.21 Felonies are more serious crimes, ones punish-
able by death or imprisonment in the state penitentiary. They
are to be distinguished from misdemeanors, which are of-
fenses punishable by fine or imprisonment in jail. The grand
jury does not normally investigate misdemeanors, although
it is within its power to do so.
When the investigation of any feloney is completed, the

20 V.C.C.P., Art. 381.

21 Constitution of the State of Texas, Ait. I, sec. 10.
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 THE TEXAS GRAND JURY

grand jury will either vote a true bill, return a no bill, or pass
the case. A true bill means that the jury is returning an in-
dictment in the case. Nine members must concur before a true
bill may be returned.22 If the jury decides not to indict, it re-
turns a no bill. It is within the jury's discretion to decide how
many members must concur to return a no bill. The custom
in many counties in Texas is to require nine votes for this ac-
tion. If nine members cannot agree upon either a true bill or a
no bill, or if the jury is not presented with enough facts, it is
the custom to pass or carry forward the case, either to a later
meeting or to the next grand jury.

PROCEDURE IN JURY SESSIONS

Nine members of a grand jury form a quorum for the trans-

action of business. While testimony is being heard, the jury
may permit other persons to be in the grand jury room. For
instance, the state or county attorney may be present to aid
the jurors. So may his stenographer, who keeps a record of the
testimony. However, it is unwise to allow the indiscriminate
attendance of other persons. As a matter of fact, the grand
jury has the power to conduct its hearings without the pres-
ence of the prosecuting attorney. No one other than duly-
empaneled members may be present when the grand jury is
deliberating and voting.23 The jury is "deliberating" within
the meaning of the law when it is weighing and examining
reasons for or against a choice of measures. It is customary
for the grand jury to hear witnesses in all the cases pending
before them, then at the end of the day, to clear the room
and discuss and vote upon the cases it has heard. If this prac-
tice is followed consistently, it is easy to show at a later time
22
V.C.C.P., Art. 391.
23
McGregor v. State, 83 Tex. Crim. Rep. 35, 201 S.W. 184 (Crim. App.
1918).

[13]
 THE TEXAS GKAND JURY

that no unauthorized persons were in the room during the de-

liberating and voting.
It is the prosecuting attorney's duty to give the grand jury
advice upon any matter of law or upon any question arising
respecting the proper discharge of its duties.24 The prosecu-
ting attorney usually examines the witnesses in front of the
jurors and advises jurors as to the proper mode of interroga-
tion. Thus the grand jury is in a position to make full use ol
his legal knowledge and experience.
This system places the prosecuting attorney in a position oi
great influence. However, the grand jury should not permit
him to dominate its thinking. If this should occur, there would
be no reason for the jury.
If the grand jury is not satisfied with the advice given it by
the prosecutor, it has the duty to seek additional assistance.25
In such cases, the jurors may go to the judge for further ad-
vice, or they may seek independent legal counsel for the pur-
pose of clarifying matters of law.26 Neither is common
practice.

EVIDENCE REQUIRED

It has been said that the grand jury is not intended to per-
form the function of the trial jury and determine the guilt of
the accused; however, it does have the duty of ascertaining if
a crime has been committed and if there is sufficient legal evi-
dence upon which a trial jury could convict the accused in a
specific case. Accused persons should not be indicted simply
because they were present where a crime was committed. The
evidence must show that each accused aided and assisted

2* V.C.C.P., Art. 377.

25
"Powers of the Grand Jury," Drake Law Review, 2 (November, 1952)
26.
26
W. Page Keeton, "Value and Importance of Grand Juries." Address de
livered to the Grand Jury Association of Travis County, January, 1954.
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 THE TEXAS GRAND JURY

the principal offender in the commission of the offense before

he can be considered guilty.
Before a trial jury the prosecutor has the burden of pro-
ducing legally admissible evidence which will prove the ac-
cused guilty "beyond a reasonable doubt," but this is not the
test to be applied by the grand jury in deciding whether to
indict. The test for it to apply is whether the State can make a
"prima facie" case or not. Stated another way, the test is
whether at the conclusion of the State's evidence in the subse-
quent trial of the case and before the defendant produces any
evidence, the trial judge would be in the position of having to
render an instructed verdict against the State.
The emphasis here is on "legal" evidence. The technical
rules of evidence prevent certain kinds of proof from being
admissible at the trial of the case, and while a grand jury may
hear this type of evidence, they should never consider it in
determining whether there is sufficient evidence upon which
to return an indictment. Examples of evidence which will be
excluded or which are insufficient for securing a conviction
are: (1) hearsay, (2) improperly obtained confessions, (3)
results of illegal arrest or searches, (4) accomplice testimony
without corroboration and (5) incompetent witnesses such as
the wife of the accused or young children.
An even more difficult question is presented to the grand
jury when the evidence not only shows that the accused com-
mitted the offense but that he has a complete defense taking
the form of: (1) accident or (2) self-defense. Where the ac-
cused will have to use different witnesses than the State to
make out his defense, then it is best to indict and not have the
grand jury determine the ultimate issue in the secrecy of the
grand jury room. On the other hand, if the State's witnesses
that make out the "prima facie" case will also make out a com-
plete defense on cross-examination by the accused, there
[15]
 THE TEXAS GRAND JURY

should be no indictment because each side is bound by the

testimony of its own witnesses and the trial judge would be
required to direct a verdict of acquittal for the accused at the
end of the State's testimony.

CONSIDERATION OF PUNISHMENT

It should be recalled that it is not a proper function of the

grand jury to determine the punishment that should be given
an accused person nor to extend to anyone accused of crime
any benefits in the nature of clemency or pardon. Both of
these are the functions of the judiciary and the executive
branches of government. If a grand jury's members fall into
the error of allowing pleas for mercy and sympathy and prom-
ises of restitution to sway their judgment to the extent that
they fail to perform their duty and in effect try the guilt or
innocence in its ultimate aspect in the secrecy of the grand
jury room, it can only tend to decrease the faith which the
community has in the grand jury system. Prior to the enact-
ment of our present probation law, some grand juries ex-
tended "unofficial probation" without indictment to young
first offenders. Since the grand jury lacks the facilities for
supervision, probation should always be after indictment and
under the supervision of the probation department.
Once the grand jury has returned an indictment, it is the
duty of the district attorney to set the case for trial. All indict-
ments should be prosecuted unless key witnesses are unavail-
able or additional evidence has been uncovered which was
not available to the grand jury at the time of indictment. No
case can be dismissed until a motion to that effect is filed with
the district court setting out the reasons for requesting a dis-
missal. The case is not dismissed until the judge has heard
the motion and consents to the dismissal.
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 THE TEXAS GRAND JURY

THE SUMMONING OF WITNESSES

The great bulk of the grand jury's work involves hearing

and evaluating the testimony of witnesses. In order that suf-
ficient witnesses may be interrogated to insure a full investi-
gation of any alleged criminal action, the grand jury is armed
with the power of subpoena. The foreman may instruct the
district attorney to issue a summons to any witness in the
county where the grand jury is sitting. This summons may re-
quire the witness to appear promptly or at some fixed time. It
need not specify the matter under investigation. The grand
jury may also summon witnesses from any other Texas county.
This is done by written application to the district judge giving
the name and address of the witness and certifying that his
testimony is believed to be material. The judge may then
cause an attachment to be issued to any county in the state
for the witness, commanding the sheriff of that county to
summon the man and have him appear before the grand jury
at a specified time. Any witness who wilfully evades service of
a summons may be fined for contempt by the court.
When a witness appears, the following oath is administered
to him by the foreman, or at his direction:
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.27
The grand jury may now examine the witness. Most of the
interrogation will probably be done by the prosecuting at-
torney or the foreman, but any juror may ask questions if he
desires. In interrogating a witness, the jury is not held to the
technical rules that govern qualifications of witnesses and ad-

2' V.C.C.P., Art. 388.

F1 7 1
 THE TEXAS GRAND JURY

missibility of evidence in trials before petit juries.28 Neverthe-

less, the jury should attempt to ask questions that are ma-
terial to the case before it. When a felony has been com-
mitted within the jurisdiction of the grand jury, it is free to
ask any pertinent question relative to the alleged crime. There
are no statutory restrictions in this regard. In fact, the court
is not privileged to look behind the return of an indictment
and in quire into the character of the evidence on which the
indictment was found.29
The grand jury in obtaining information is restricted only
by the requirement that the constitutional rights of a person
being examined must be protected. The United States Con-
stitution, as well as the Constitution of the State of Texas,
guarantees immunity from self-incrimination. This means
that no one shall be compelled to give testimony which may
expose him to prosecution for any crime. Unless he volun-
tarily becomes a witness, he is completely immune from being
questioned.30 This privilege is not confined to someone ac-
cused but extends to all witnesses before a grand jury.31 For
this reason, the grand jury in questioning any person sus-
pected or accused of a crime must state to him the offense
with which he is being charged, the county where the offense
is said to have been committed, and as nearly as possible the
time of the commission of the offense. If the jury thinks it nec-
essary, it may ask him in general terms whether he has knowl-
edge of the violation of any particular law by any person and,
if so, by what person. 32 But the statutory warning of self-

28 Choice v. State, 114 S.W. 132 (Grim. App. 1908).

29
Kingsbury v. State, 37 Tex. Crim. Rep. 259, 39 S.W. 365 (Grim. App.
1897).
30
Long v. State, 120 Tex. Crim. Rep. 373, 48 S.W. 2d 632 (Grim. App.
1931). Also V.C.C.P., Art. 710.
31
Ex parte Sanchez, 85 Tex. Crim. Rep. 380, 213 S.W. 271 (Crim. App.
1919).
32 V.C.C.P., Art. 389.
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 THE TEXAS GRAND JURY

incrimination must be given before specific questions are

asked him, or evidence obtained from him is not admissible
on subsequent prosecution.33
If a witness refuses to answer a question, the refusal should
be noted. The grand jury itself cannot compel a witness to
testify. It can only refer the refusal to the district judge. This
is generally done by a written report, signed by the foreman
giving the substance of the question asked and noting that
the witness refused to answer it. The judge may then examine
the witness and inform him whether or not he is required to
answer the question.
In some cases, a grand jury may wish to grant immunity
from prosecution to a witness for his part in a crime in order
to induce him to testify. This authority is advantageous where
a witness would not otherwise testify for fear of incriminating
himself. If he is granted immunity, his answers cannot harm
him and he may be compelled to testify.34 However, com-
plete immunity may not be granted by a grand jury or prose-
cuting attorney acting alone. Any promise of complete im-
munity must be made with the approval of the court. Until
this approval is obtained, the witness may not be compelled
to answer.35
Finally, it is not customary for either a witness or an ac-
cused person, when appearing before the grand jury, to have
counsel present in the grand jury room. But the grand jury
may permit counsel to be present if it so desires.
After the grand jury has heard all the available evidence,
and all persons not members of the jury have left the room,
the foreman calls for a discussion of the evidence they have
heard. After each member who desires to speak has been

* 3 Bowen v. State, 47 Tex. Crim. Rep. 137, 82 S.W. 520 (Crim. App. 1904).
34
Ex parte Carol Jean Joseph, 356 S.W. 2d 791 (Crim. App. 1962).
35
Ex parte Higgins, 71 Tex. Crim. Rep. 618, 160 S.W. 696 (Crim. App.
1913).

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 THE TEXAS GRAND JURY

heard, a vote is taken. It appears customary in most Texas

counties to require nine of the twelve votes for action.
The result of the vote is given to the state's attorney, who
prepares all indictments which have been made by the jury.
These he returns to the foreman, who checks each before af-
fixing his signature, after which the state's attorney writes on
the indictments the names of the witnesses upon whose testi-
mony they were based. At this point the indictments are ready
for delivery to the judge. With the indictments in hand, the
foreman and the grand jury go in a body into open court,
where the foreman delivers these indictments to the district
judge. At least nine members of the grand jury must be pres-
ent at this time. The indictments are then entered upon the
minutes of the court. Unless the person to be tried is in cus-
tody or under bond, his name is omitted in the record so as to
aid enforcement officers in his arrest.

THE JURY'S REPORT

It is common practice among grand juries in Texas to issue

a report. This is usually done at the end of the jury's term of
office. While an indictment is the grand jury's official written
accusation against a specific person, the report is a written
commentary either complimentary or critical, directed at
general conditions, designated agencies, or a specific indi-
vidual from which no indictment is framed.36 The report is
submitted to the district judge and becomes a matter of pub-
lic record. In its report, the grand jury may comment upon
any situation in the county. It attempts to call both official
and general civic notice to matters which the jury believes will
be to the general benefit of the community. There are no sta-
tutory regulations concerning the subject matter to be
36
George H. Dession and Isadore H. Cohen, "The Inquisitorial Functions
of Grand Juries," Yale Law Journal 41 (March, 1932) 749-50.
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 THE TEXAS GRAND JURY

treated; however, the grand jury's investigatory powers are

quite broad.
It is within the power of a grand jury to inspect any public
buildings within the county. It may investigate the work oi
any public official, office, or institution. It may inspect the
books of the county. In short, the grand jury is the citizens
watchdog over the allocation, management, and use of the
county's public funds and the performance of its officers.
A report is improper in situations in which an indictment
should be returned. However, it may happen that the grand
jury will be unable to return an indictment in a situation be-
cause the statute of limitations has expired on an offense, oi
because it is impossible to obtain proper evidence, or because
the offense is not indictable, but is serious enough to warrant
calling it to public attention.37 In these instances the grand
jury report would profitably supplement its power of indict-
ment.
The investigatory powers of most grand juries which they
may exercise in the public interest are practically limited by
both time and funds. These limitations are likely to be severe,
especially in the more populous counties where the greatest
portion of the jury's time is taken up with hearing evidence
concerning indictable offenses. Further, there is no statu-
tory provision allocating funds to the grand jury for a staff of
investigators. Regardless of these limits, the importance of
the power of the grand jury to investigate inefficiency and
corruption and to report them to the public may not lightly
be brushed aside. Its power of investigation is a constant re-
minder to public officials that their conduct is subject to re-
view by the jury.
Finally, in making indictments and preparing reports a

31
J. Hadley Edgar, Jr., "Propriety of the Grand Jury Report," Texas Law
Review,34 (May, 1956) 749-50.
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 THE TEXAS GRAND JUHY

reckless grand jury may do much harm to individuals, to the

community, and to public officials. This possibility should
never be forgotten by a juror. Membership on the grand jury
is a high honor; it also calls for restraint and discernment.

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