Eagle Printing Co. v. Delaney

• Decision Date: 30 May 1984
• Docket Number: No. 69288,69288
• Citation: 671 S.W.2d 883
• Parties: 10 Media L. Rep. 2098 EAGLE PRINTING CO. d/b/a Bryan-College Station Eagle, Applicant, v. John DELANEY, Judge, 272nd Judicial District Court of Brazos County, Respondent.
• Court: Texas Court of Criminal Appeals

Page 883

671 S.W.2d 883

10 Media L. Rep. 2098

EAGLE PRINTING CO. d/b/a Bryan-College Station Eagle, Applicant, v. John DELANEY, Judge, 272nd Judicial District Court of Brazos

County, Respondent.

No. 69288.

Court of Criminal Appeals of Texas,

En Banc.

May 30, 1984.

David H. Donaldson, Jr., R. James George, Jr., Austin, for applicant.

Bill R. Turner, Dist. Atty., and Terrence Keel, Asst. Dist. Atty., Bryan, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

A Court of Inquiry may be convened by any judge of a county or district court, acting in capacity as magistrate, who "has good cause to believe that an offense has been committed against the laws of this state." Article 52.01, V.A.C.C.P. This extraordinary proceeding arises from one convened by Respondent, and presents yet another instance of closing courtroom doors to, and withholding a record of ensuing proceedings from, the press. See Houston Chronicle Publishing Company et al. v. Shaver, Judge, 630 S.W.2d 927 (Tex.Cr.App.1982) and Houston Chronicle Publishing Company et al. v. McMaster, Judge, 598 S.W.2d 864 (Tex.Cr.App.1980).

Tuesday, May 8, 1984 Respondent opened a Court of Inquiry in order "to investigate allegations of aggravated promotion of prostitution and other crimes occurring at [two establishments] in Brazos County..." That he had "good cause to believe" the allegations is not an issue; ¹ a court reporter was at her place and representatives of the media, including a reporter for the Bryan-College Station Eagle, were in the courtroom. Subpoenaed witnesses, fourteen in number we are told, were sworn and placed under the rule. ²

Two female witnesses testified Tuesday, but what we know about the content of their testimony comes from an affidavit of Respondent and from recollections of a reporter who heard it and "impressions" given by the Sheriff's investigator during the course of a subsequent hearing. Each witness was granted immunity under Article 52.05 and testified, although Respondent characterizes the first as "uncooperative", his "belief" being that "she was deceptive, due in part to fear of retribution." The second witness "testified fully as to prostitution" at one of the establishments, but was "worried about the consequences of her testimony getting back to those people she worked with;" though the witness denied "any fear of her own," Respondent "felt she was either (1) lying about her fear (to avoid being accusatory) or (2) naive." ³

While the second witness was still on the stand, the District Attorney approached representatives of the press then in attendance. He later testified that he "requested of them that they not print the name of one of the witnesses," saying "I realize I have no authority to do this, but I'm asking if you would." Wednesday's edition of the Bryan-College Station Eagle carried a frontpage story under a headline reading:

"Court of Inquiry

2 women differ on existence of prostitution"

Both female witnesses are identified by name in the body of the article, as well as in a caption to a photograph of them handcuffed together on the way to court under escort of a uniformed jail supervisor. The story bears the byline of two staff writers, one of whom testified under questioning by the District Attorney that after the initial request:

"Q: Thereafter, we had several other discussions. And during those discussions, it was by the end of the day, it was my view that the public would probably, or the people who wanted to know would probably, find out about it anyway? ⁴

A: That's true.

Q: Is that true, is that a fair assessment of how we left the conversation?

A: As a matter of fact, as I recollect, you actually said you didn't see any harm in using the names. And when I left, I left with the understanding that you no longer felt as you had earlier." ⁵

So far as this record shows the judge himself did not enter into any of those discussions or make his own position known on Tuesday.

However, Wednesday morning Respondent talked privately with the Sheriff's investigator and the District Attorney, explaining "my concerns about the girl's life," and receiving "assurances" from the former that "steps would be taken to protect the witness." ⁶ The District Attorney told the judge that for his part "he had believed it was best that he withdraw his request [of the press not to print her name] and trust that the press would exercise some discretion." Then Respondent recounts in his affidavit the following developments:

"Before the Court of Inquiry resumed on May 9, 1984, I questioned members of the press about their intentions of printing names of witnesses. After expressing my concerns for the lives of the witnesses, ... a reporter for the Eagle, said that the proceeding was an open proceeding and that she would use the same judgment as used the day before as to whether or not she would print the names of the witnesses. She further stated that she did not feel responsible for any harm that came to the witnesses.

Based on a fear I had for the lives of the witnesses who were to testify on May 9, 1984, as well as the potential chilling effect the media's presence would have on future witnesses, I told the media, including the Eagle, to leave the courtroom. Such action was taken to insure the safety of the lives of the witnesses of the Court of Inquiry as well as to achieve the purpose of the Court of Inquiry. The press then exited the courtroom and I continued to conduct the Court of Inquiry."

Thereafter, but still on Wednesday, Applicant filed a motion to set aside the oral order rendered by the judge, and an immediate hearing was held at which Applicant's reporter, the District Attorney and the Sheriff's investigator testified, and to which reference has been made from time to time in this opinion. The motion to set aside was denied by the judge upon his finding:

"It is going to be necessary to exclude that limited portion of the public [consisting of members of the print and electronic media] from these proceedings in order to try, number one, to add some small degree of protection for the benefit of the witnesses; and, number two, try to improve or enhance the effectiveness of the proceeding by avoiding the chilling effect that the court perceived media attention to it would have." ⁷

May 10, 1984, upon consideration of a motion for leave to file by Applicant this Court granted the motion, stayed the Court of Inquiry proceedings until further order and set a date for Respondent to respond to the application. Meanwhile Applicant had requested but had not obtained a transcription of the notes taken by the court reporter during the Court of Inquiry proceedings; accordingly it presented a supplemental application and we directed Respondent to respond to that matter as well. ⁸ The cause was submitted on briefs and oral argument May 23, 1984 and after due deliberation we have concluded that Applicant is entitled to relief.

Under prior codes of criminal procedure authority to conduct such an inquiry and to extract testimony from persons was in justices of the peace. See, e.g., Article 886 ⁹ and 887, ¹⁰ C.C.P. 1925. There was no express provision as to "whether the investigation shall be public or secret," McClelland v. Briscoe, 359 S.W.2d 635, 638 (Tex.Civ.App.--Houston 1962, writ ref'd n.r.e.). However, conventional wisdom held the statute permitted "a public ex parte proceeding," ibid., and reported cases demonstrate that usually much publicity was engendered. See, e.g., McClelland v. Briscoe, supra, at 640 ¹¹ (Coleman, J., concurring); McClelland v. Briscoe, 359 S.W.2d 640, 642 ¹² (Tex.Civ.App.--Houston 1962, writ ref'd n.r.d); Ex parte Smith, 383 S.W.2d 401, 402 ¹³ (Tex.Cr.App.1964). Procedures sometimes employed were found so "shocking" and "essentially unfair," McClelland, supra, at 638, 640, "due to the arbitrary and prejudicial abuse" of the statute, Ex parte Smith, supra, 403, that the segments of judiciary called for legislative relief. MCCLELLAND, SUPRA, AT 638, 640¹⁴; Martin v. State, 395 S.W.2d 631, 635-636 (Tex.Cr.App.1965); see also Ex parte Smith, supra.

The Legislature soon responded with Chapter Fifty Two, V.A.C.C.P., concluding (contrary to a recommendation by the State Bar Committee) that a Court of Inquiry "might still be useful if limited to district courts ¹⁵ with the procedure spelled out providing for the taking of testimony, rights of witnesses, stenographic records, public hearings, etc." in Article 52.02 through 52.09. Special Commentary following Article 52.01.

Remedial measures were taken. There are provisions for taking evidence by deposition or affidavit and allowing an affected party to object. Article 52.02. Rights of witnesses are delineated in Article 52.04, but under Article 52.05 any person "may be compelled to give testimony or produce evidence when legally called upon to do so at any Court of Inquiry." A person may invoke the privilege against self incrimination, but the judge may nevertheless compel one to testify or produce evidence under protection of what amounts to a statutory grant of immunity from prosecution, Article 52.05, and one who still refuses to comply may be, as always, punished by fine and attached and confined until he does testify. Article 52.06. Like before, when testimony and evidence makes it appear that an offense has been committed the judge "shall issue a warrant for the arrest of the offender as if complaint had been made and filed," Article 52.08.

The Legislature obviously believed that important public interests are served by such a properly conducted proceeding. We notice particularly that past practice of allowing the press unfettered access to proceedings of a Court of Inquiry and to the record made by it was expressly legislated. ¹⁶ Thus Article 52.07 mandates:

"All evidence at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall...