Ex parte Joseph A. EDONE; Ex parte Daniel D. EDONE; Ex parte Kenneth D. HARRELL
Nos. 69593 to 69595
Court of Criminal Appeals of Texas
Oct. 7, 1987
740 S.W.2d 446
It is obvious to me by what the majority opinion states, either expressly or implicitly, that those members of this Court who vote for the opinion have too long been away from the pits. After carefully reading the majority opinion several times, and the above opinions to which I dissented with opinions, it appears to me that the suggestion that I have heard some lawyers and trial judges make, that some appellate court judges should be forced to periodically come down from their place on Mount Appeal, and see the real world in action, probably has a great deal of merit.
In conclusion, I find that what Justice Jackson said many years ago is probably just as true today as the day when he uttered these words: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953). This is so true of those members of this Court who vote for the majority opinion.
David L. Botsford, Austin, for appellant.
Jeff Van Horn, Dist. Atty., Lockhart, Robert Huttash, State‘s Atty., Austin, for the State.
W.C. DAVIS, Judge.
The Court originally granted leave to file this original application for writ of habeas corpus in order to determine whether applicants were being illegally restrained of their liberty on account of their respective refusals to answer certain questions propounded before a grand jury. See
On March 3, 1986, applicants were served with a “Grand Jury Subpoena Duces Tecum,” issued by the district attorney of Caldwell County. The subpoenas directed applicants to appear on March 11, 1986, before a grand jury sitting in Caldwell County.
On March 11, 1986, applicant Joseph Edone and applicant Daniel Edone filed a “Motion to Quash Grand Jury Subpoena” which was denied after a hearing. Thereafter, all three applicants were taken into the grand jury room where they were asked questions relating to their alleged involvement in violations of Title 11, Chapter 71 of the Penal Code. Each applicant asserted his rights under the Fifth Amendment to the United States Constitution in refusing to answer the questions propounded.
The district attorney immediately filed an “Application for Order Requiring Testimony.” This application sought to compel answers to the grand jury questions in exchange for grants of use immunity pursuant to
Thereafter, applicants again refused to answer the same questions before the grand jury. The district attorney filed a “Motion for Contempt” with respect to each applicant. As a result of hearings on the motions, held before the district court, each applicant was held in contempt of the district court by way of an order entitled “ORDER FINDING [applicant‘s name] IN CONTEMPT OF COURT.” The orders recited that each applicant was, pursuant to a court order, ordered to testify before the grand jury; that certain proper and relevant questions were asked of each applicant; and that each applicant refused to answer said questions. Each applicant was found to be “in contempt of a lawful order of this Court.” The orders required each applicant to be confined in the Caldwell County Jail until such time as he purged himself of the contempt by answering the grand jury questions. Each applicant was also fined $500. In response to those orders, applicants filed the present applications for habeas corpus relief. On March 21, 1986, this Court granted the motions for leave to file, the causes were set for submission and applicants were ordered released on $5,000 bond.
Applicants contend they are entitled to relief under the holding of Ex parte Port, 674 S.W.2d 772 (Tex.Cr.App.1984).
We observe, however, at the outset that it has been made to appear that the term of the grand jury before whom the applicant was ordered to testify has expired and the jurors discharged. Thus, that part of the contempt order requiring testimony before said body is now moot. Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287 (1923). See also Ex parte Shorthouse, 640 S.W.2d 924 (Tex.Cr.App.1982); Ex parte Rogers, 640 S.W.2d 921 (Tex.Cr.App.1982), and cases cited therein. Although that part of the contempt orders requiring applicants to appear and testify before the grand jury in order to purge themselves of contempt is now moot, the portion of the orders imposing the fine of $500 on each applicant is not moot. Ex parte Shorthouse, supra. See and cf. Ex parte Richardson, 640 S.W.2d 294 (Tex.Cr.App.1982).
We turn then to applicant‘s contention that they are entitled to relief under Ex parte Port, supra. According to the plurality opinion in that case, applicants are entitled to relief inasmuch as the court‘s orders in the instant case are unauthorized because applicants were found to be in contempt of court rather than in contempt
The grand jury is impaneled from an array selected either by grand jury commissioners who are appointed by a district judge, or more directly by the district judge “in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts.” See
Once formed and impaneled by the district judge, the grand jury shall “inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible persons.”
However, in another sense, the grand jury is very connected to the court which impaneled it. The court exercises supervisory power over the grand jury whether by impaneling, re-assembling, qualifying, quashing subpoenaes, or aiding investigation. The grand jury “is more frequently characterized as ‘an arm of the court by which it is appointed.‘” W. LaFave & J. Israel, Criminal Procedure, § 8.4 at p. 625 (1984), rather than as an autonomous entity. Given the relation and function of the court to the grand jury, this characterization is quite accurate and is shown by the operation of
When a witness, brought in any manner before a grand jury, refuses to testify, such fact shall be made known to the attorney representing the State or to the court; and the court may compel the witness to answer the question, if it appear to be a proper one, by imposing a fine not exceeding five hundred dollars, and by committing the party to jail until he is willing to testify.
The court thus aids the investigation of the grand jury under the authority of
A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court‘s aid, because powerless itself to compel the testimony of witnesses. It is the court‘s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled by Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). See also United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975).
The mere refusal by a witness, to answer questions propounded by a grand jury, without more, is not contempt. The grand jury has no power or authority to find or hold one in contempt for such refusal. The grand jury must go to the court
Therefore, once the court orders the witness to answer before the grand jury, then a violation of such order constitutes contempt of the court. While the act of refusal—the violation of the specific order—occurs before the grand jury, the contempt is the violation of the court‘s order, and is, thus, contempt of the court. Ex parte Port, supra, is overruled to the extent that it holds such action to constitute contempt of the grand jury and requires the order of contempt to so state.
The court‘s orders finding applicants in contempt of court by violating the court‘s order to answer before the grand jury are proper. See Ex parte Shorthouse, supra.
The applicants are entitled to relief from that portion of the contempt judgments requiring them to appear before the grand jury and testify in order to purge themselves of contempt. The applicants each are still liable for the $500 fine imposed by the contempt judgment. Relief in this regard is denied.
It is so ordered.
McCORMICK and WHITE, JJ., concur in the result.
CLINTON, Judge, dissenting.
In Ex parte Port, 674 S.W.2d 772 (Tex.Cr.App 1984), this Court, relying on over sixty years of Texas caselaw, held per curiam that the unjustified refusal to answer the questions of a grand jury constituted contempt of the grand jury, punishable under
Notable for its absence from the majority opinion is citation to Texas caselaw, other than an incidental reference to Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287 (1923) and Ex parte Wilkinson, supra. This abandonment of stare decisis is particularly disturbing because the applicable statute,
Also notable is reliance by the majority on Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled by Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), for the proposition that the grand jury is an “appendage of the court” which impanels it. This occurs even though the majority acknowledges that Brown was overruled over 20 years ago. The cryptic citation to “see also United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975)“, adds nothing for, as the majority in Wilson recognized, “[t]he crucial difference between” Harris and Wilson is that Harris dealt with a refusal to testify before the grand jury, while Wilson concerned the refusal to testify at trial. 421 U.S. at 318, 95 S.Ct. at 1807, 44 L.Ed.2d at 194. See also Wilkinson, 641 S.W.2d at 933-34 (Clinton, J. concurring). Further, it ignores statements by members of this Court that Brown and Harris “were not decided on constitutional grounds, but were merely interpretations of Federal Rules of Procedure.” 641 S.W.2d at 934 (Dally, J., dissenting in which the author of the present majority opinion joined). See also, Harris, 382 U.S. at 162-163, 86 S.Ct. at 353, 15 L.E.2d at 241-42; Wilson, 421 U.S. at 320-322, 95 S.Ct. at 1808, 44 L.Ed.2d at 195 (Blackmun, J., joined by Rehnquist, J., concurring). A cursory reading of Wilson reveals that that decision also concerns the Federal Rules of Criminal Procedure and does not purport to reach constitutional grounds. Moreover, to the extent that any of the language in these decisions is dispositive of the issue of the relationship between Texas trial courts and grand juries, it would appear to be that in Harris, directly contrary to the majority‘s present position:
“The real contempt, if such there was, was contempt before the grand jury—the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify ‘committed in the actual presence of the court’ for purposes of Rule 42(a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it.”2
382 U.S. at 164-65, 86 S.Ct. at 354, 15 L.Ed.2d at 242. See also Brown, 359 U.S. at 53-56, 79 S.Ct. at 548-49, 3 L.Ed at 618-24, Warren, C.J., joined by Black, Douglas and Brennan, JJ., dissenting); United States v. Armstrong, 781 F.2d 700, 705 (CA9 1986).
More important than the majority‘s disregarding established Texas caselaw or its misconstruction of the caselaw of the United States Supreme Court, however, is its misapprehension of the special relationship between Texas courts and grand juries and the misconstruction of
Central to the majority‘s reasoning is the idea that the grand jury is an “appendage” or “an arm of the court by which it is appointed.” Maj. Op. at 447-448. But that idea is foreign to Texas law, which traditionally has viewed the grand jury as “a legally constituted governmental agency“, Ex parte Kennedy, 116 Tex.Cr.R. 118, 33 S.W.2d 443 (1930), “a separate tribunal,” Barnes v. State, 134 Tex.Cr.R. 461, 116 S.W.2d 408, 409 (1938); Rodgers v. County of Taylor, 368 S.W.2d 794, 796 (Tex.Civ.App.—Eastland, 1963, writ ref‘d n.r.e.), “independent of the control of judges and prosecutors,” Whittington v. State, 680 S.W.2d 505, 512 (Tex.App.—Tyler, 1984) (P.D.R. ref‘d); and e.g., Ex parte Rodriguez, 629 S.W.2d 757 (Tex.Cr.App.1982); Ex parte Rogers, 640 S.W.2d 921 (Tex.Cr.App.1982), whose independence from both is vital to its proper functioning as a protector of liberty, Tobin v. Broadfoot, 160 Tex.Cr.R. 190, 268 S.W.2d 162, 166 (1954) (Morrison, J., dissenting); see also United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 773, 35 L.Ed.2d 67, 81 (1973); Armstrong, 781 F.2d at 704 and cases there cited.
Accordingly, the Texas Supreme Court has held that power and authority to impanel a grand jury is not inherent in the district courts created by the Texas constitution and statutes. Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 644 (1950). Instead, the applicable law directs the court to appoint a commission of 3 to 5 qualified persons,
One result of this view of the grand jury as a separate, independent inquisitorial tribunal and investigatory body is that “a witness’ refusal to answer grand jury questions is not conduct in the actual presence of the court,” Wilson, 421 U.S. at 321, 95 S.Ct. at 1809, 44 L.Ed.2d at 196 (Blackmun, J., concurring joined by Rehnquist, J.); Harris, 382 U.S. at 164-65, 86 S.Ct. at 354; Wilkinson, 641 S.W.2d at 934 n. 2 (Clinton, J., concurring); Armstrong, 781 F.2d at 705. In part, that is the reason why the trial court‘s authority to punish persons in applicants’ position under
It is settled, though, that an act need not occur in the “immediate presence of the judge” to occur “in the presence of the court.” Ex parte Aldridge, 169 Tex.Cr.R. 395, 334 S.W.2d 161, 165 (1960); Ex parte Daniels, 722 S.W.2d 707, 710 (Tex.Cr.App.1987). Rather “[t]he court is present,” and direct contempt occurs, “whenever any of its constituent parts are engaged in the prosecution of the business of the court, which constituent parts include the judge, the courtroom, the jury, and the jury room.” Ex parte Aldridge, supra. If the grand jury were an “appendage” of its impaneling court, however, it too would have to be added to the list of “constituent parts” and any contemptuous conduct occurring in its presence would perforce occur in the presence of the court. Yet, this is precisely the reasoning rejected by this Court when it concluded that the general contempt powers granted under
Having misapprehended the relationship between Texas courts and grand juries, the majority compounds this error by miscon-
The majority goes on, again contrary to the statute and without citation to any authority whatsoever, to conclude that “[t]he mere refusal by a witness to answer questions propounded by a grand jury, without more, is not contempt,” and can not become contempt unless and until a court additionally orders the witness to comply with a valid and proper summons and answer questions of the grand jury. Maj. Op. at 448-449. Thus, it is concluded, there is no contempt punishable under
To say that a grand jury lacks power and authority to enter a judgment imposing a fine and ordering commitment for refusing to testify, cf. Jennings; Miller; Jackson; and McMurrough, all supra, and cases cited therein, however, is not to say that such an act is not contempt. Rather, it merely recognizes that a grand jury is not a judge and so does not have authority under the law to adjudicate questions of propriety of a particular question under
It is settled that a Texas grand jury has inherent power and authority to issue attachments or summonses for witnesses and documents. See
Nor does
“We are unable to give to the language used [in
Art. 438, V.A.C.C.P. (1911) , nowArt. 20.15, supra ] any other interpretation except that it means to testify before the grand jury. The imprisonment feature of this statute is evidently for the sole purpose of procuring answers from the witnesses to particular questions propounded by the grand jury before which they have been called to testify.”
*
“Relator was not committed for the refusal to answer questions to the judge, but to the grand jury. However desirable it may be to have his answers and however reprehensible his conduct in refusing to give proper information to the grand jury, we know of no law ... which would authorize [an order allowing him to purge himself of such contempt by testifying “before the judge“]. If relator upon being brought before the court in the first instance had averred his willingness to answer to the judge, but not to the grand jury, it would have availed him nothing. If now brought before the judge in vacation, not sitting as an examining magistrate, but simply to enable relator to answer the grand jury questions, would he answer under any binding oath? Would he be subject to any pains and penalties if he did not tell the truth? We do not think so.”
Because the majority ignores that command and departs, without justification stated or apparent, from a course consistently followed by the courts of this State for many years, I am compelled to dissent.
TEAGUE, J., joins.
Laura Lee Anderson GOODE, Appellant, v. The STATE of Texas, Appellee.
No. 345-85.
Court of Criminal Appeals of Texas, En Banc.
Nov. 18, 1987.