December 21, 2011

Now that there is finally some clarity on what HB 79's changes mean--namely, that an original term of court in effect at the turn of the new year in a district court that was not already subject to the "first Monday in January" rule* will continue until Sunday, July 1, 2012--we've received several inquiries best summed up as:  "Okay, but what does that mean for ME?"  We will continue to answer individual questions as we receive them, but we thought we'd put together these frequently asked questions (FAQs) to address the most common questions we've been receiving here at TDCAA (and at OCA, who helped compile this information).  [*Note that this clarification was added on 12/22/11; district courts that previously were on the same term of court schedule now imposed upon all courts are not affected by HB 79's changes.]

Q:  Do we really have to use the current grand jury impaneled in October 2011 all the way through June 2012?  I’m afraid the grand jurors may revolt if kept that long!  Can we just go ahead and impanel a new grand jury in January instead?

A:  That question appears to be up to the discretion of the impaneling judge.  The state constitution and state statutes are silent on whether a district court can impanel more than one grand jury per term of court, but the Court of Criminal Appeals has, on at least two occasions, found no prohibition to doing so.  State v. Broaddus, 3 S.W.3d 919 (Tex.Crim.App. 1999)(indictment by grand jury convened by special prosecutor not voided by existence of regularly-impaneled grand jury); Farrar v. State, 277 S.W.2d 114 (1955)(indictment by regularly-impaneled grand jury not voided by existence of hold-over grand jury from previous term).  Therefore, if your district judge wants to discharge the current grand jury and impanel a new one in the same term, that appears to be permissible.  The judge could also allow the current grand jury to adjourn (see next question) and then discharge both grand juries at the end of the term.  “The decision whether two grand juries are needed to carry the burden of work is for the judge …” (Broaddus, at 922).

Q:  If we don’t want to impanel a new grand jury in January, can we just give this one a break and then call them back into service later in this extended term of court?

A:  Yes.  You can do this one of two ways; either (1) with the consent of the impaneling court, the grand jury can adjourn for a specific period of time until a date certain in the future (CCP Art. 20.08), or (2) the impaneling court can discharge the grand jury and then re-assemble it again at a date of the court’s choosing (CCP Art. 19.41).

Q:  We have multiple impaneling courts in our county.  Can we wait until mid-term to impanel some of our grand juries in order to stagger our grand juries between those district courts that are all now on the same term?

A:  That appears to be fine.  A grand jury “may be convened on the first or any subsequent day of the term” (CCP Art. 19.13).  While a grand jury cannot extend beyond its regular term (except for hold-over grand juries as provided by CCP Art. 19.07), there is no minimum period of time in statute for which a grand jury must be impaneled, so a judge can discharge a panel at any time.  Therefore, if you want to impanel a grand jury in one district court from January through March, discharge it, and then impanel a new grand jury under a different district court in April and run it through the end of the term, that should be permissible. (Note that this is just one example of how that might work.)

Q:  We have a grand jury whose original term would have ended in late October 2011 but it was held over for 90 days pursuant to Art. 19.07. Does that grand jury extension to late January 2012 remain in effect past the first of the year, or is it terminated then, or does it continue until the end of June?

A:  The term of that hold-over grand jury expires at the end of the original 90-day extension. HB 79 should have no effect on grand juries that have had their original term extended under CCP Art. 19.07. The change in law only extends grand juries whose original term was to expire after 1/1/12 under the old law.

We hope these FAQs help to answer some of your local issues.  Should you have more specific questions about the particular situation in your jurisdiction, feel free to call or email us at TDCAA.  Again, we’re sorry for the initial confusion about this topic, but look on the bright side—we’ve all learned more about grand jury impaneling than we probably ever wanted to know in the first place!