Ex parte Edone

• Decision Date: 07 October 1987
• Docket Number: 69595,69594,Nos. 69593,s. 69593
• Citation: 740 S.W.2d 446
• Parties: Ex parte Joseph A. EDONE. Ex parte Daniel D. EDONE. Ex parte Kenneth D. HARRELL.
• Court: Texas Court of Criminal Appeals

Page 446

740 S.W.2d 446

Ex parte Joseph A. EDONE.

Ex parte Daniel D. EDONE.

Ex parte Kenneth D. HARRELL.

Nos. 69593, 69594, 69595.

Court of Criminal Appeals of Texas.

Oct. 7, 1987.

David L. Botsford, Austin, for appellant.

Jeff Van Horn, Dist. Atty., Lockhart, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

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 Art. 20.15, V.A.C.C.P. Specifically, the court granted leave to file to consider the application of Ex parte Port, 674 S.W.2d 772 (Tex.Cr.App.1984) to the instant case.

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 V.T.C.A., Penal code, § 71.04. After a hearing, the district judge granted the district attorney's request to give applicants use immunity. The judge ordered them to answer the questions propounded.

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 of the grand jury. Upon further consideration and re-examination of our holding in Ex parte Porte, supra, we will deny relief from the imposed fine.

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 Art. 19.01--19.26, V.A.C.C.P.

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." Art. 20.09, V.A.C.C.P. After hearing all testimony accessible to them, the grand jurors vote as to presentment of an indictment. Art. 20.19, V.A.C.C.P. While the grand jury may seek advice from the court, Art. 20.06, V.A.C.C.P., their deliberations concerning any inquiry into presentment of an indictment are secret. Art. 20.02, V.A.C.C.P. In this sense, the grand jury, charged with deciding upon the presentment of an indictment by secret deliberations, is of a separate and independent nature from the court.

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 Art. 20.15, V.A.C.C.P.

Art. 20.15, V.A.C.C.P., gives the district court jurisdiction, power and authority over one not otherwise subject to the power of the court. See also Ex parte Wilkinson, 641 S.W.2d 927 (Tex.Cr.App.1982). Art. 20.15 states:

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 Art. 20.15. However, the court also exerts some "control" or supervision over the grand jury under Art. 20.15. The court decides if the question propounded before the grand jury is proper, and, thus, decides whether or not to aid the investigation of the grand jury by then compelling an answer. Without the action of the court the grand jury is powerless to enforce its investigative duty to gain testimony from a witness and decide on the presentment of an indictment. In this sense, the court acts independently and in a supervisory role (deciding whether to compel an answer) as well as jointly with the grand jury (jurisdiction is by virtue of the witness's refusal to testify before the grand jury--Art. 20.15).

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 for recourse. The court may compel the witness to answer by so ordering. Art. 20.15. Upon refusal by the witness, the court may then punish the witness for violating the court's order. We agree that "[i]f relator upon being brought before the court in the first instance had averred his willingness to answer to the jury, but not to the grand jury, it would have availed him nothing." Ex parte Jackson, 95 Tex.Cr.R. 200, 253 S.W. 287, 289 (1923). Given the duty of the grand jury under Art. 20.09 and the secrecy of the grand jury under Art. 20.02, both supra an answer before the judge is of no merit. It thwarts the independent aspect, the responsibility, and the duty of the grand jury to hear testimony as to presentment of an indictment. But, it is still the court alone which has the power to compel testimony before the grand jury. In terms of a nexus between the court and the grand jury, the independent fact-finding and ultimate charging determination may depend in large part on the enforcement powers of the court. ¹

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...