In Texas, a grand jury is made up of 12 people who determine whether or not there is probable cause to believe that a felony offense occurred. The grand jury only inquires into felony offenses and a limited number of misdemeanor offenses.
According to Article 19.40 of the Code of Criminal Procedure, a quorum of nine jurors must be present to carry out the function of the grand jury. Each grand juror votes individually after reviewing facts and circumstances of an allegation. If at least nine grand jurors determine that there is probable cause that an offense occurred, it returns a “True Bill” to indict the case. Failure to get nine votes will result in a “No Bill,” and the prosecution will not pursue criminal charges. If a case is No-Billed, the accused is generally eligible for an expunction of all records relating to the arrest and investigation.
Grand jury proceedings are secret and take places behind closed doors. Prosecutors present evidence by reciting facts or providing witness testimony or exhibits. The prosecutor may chose to recommend a True Bill, a No Bill, or make no recommendation at all. The deliberations of a grand jury are secret (just like regular jury deliberations). Witnesses and prosecutors leave the grand jury room during deliberations. Breaking this secrecy is a crime punishable by a $500 fine and 30 days in jail.
The grand jury process is not an adversarial process. The defendant is not present, and the defense attorney does not have a right to be in the room. However, there are cases where an experienced defense attorney is able to make a presentation to the grand jury. If you or someone you know is under investigation or charged with a felony, it is critically important that you talk to a defense attorney who is not only familiar with the grand jury process, but also has experience making grand jury presentations. Sometimes a good defense presentation can mean the difference between a “True Bill” and a “No Bill.”
When a grand jury does not return an indictment because there were not sufficient votes to indict the case, the outcome is known as a “No Bill.” A No-Bill is generally the cessation of the criminal prosecution, but it does not mean that a prosecutor cannot re-present the case. Learn more about re-presentments.
Members of the grand jury are every day citizens like you and I. These grand jurors should represent the demographics of the county. Some factors taken into consideration are race, sex, and age. In Texas, a grand jury is comprised of 12 individuals who elect a foreman of the group. This process makes members of the local community responsible for the advancement of justice, including safeguarding offenders against unwarranted prosecution.
According to Code of Criminal Procedure 19.08, a grand juror must have the following qualifications:
Additionally, to the extent possible, the grand jury should represent a broad cross-section of the population of the county, considering the factors of race, sex, and age.
Grand Jury Proceedings are secret enough to cost anyone who violates the secrecy $500 and 30 days in jail. Witnesses called to testify before the grand jury must keep proceedings secret as spelled out in the Code of Criminal Procedure (Art. 20.16). If secrecy is violated, the witness may be found in contempt and fined $500 and imprisoned for up to six months. Although all parts of the grand jury proceeding are secret, deliberations are the most secret. Only grand jurors are allowed in the room when deliberations take place.
As of September 1, 2015, grand jurors are selected the same way trial juries are summoned: potential jurors are summoned and empaneled to obtain a better cross-section of the community. See Chapter 19 of the Code of Criminal Procedure below:
The district judge shall direct that 20 to 125 prospective grand jurors be selected and summoned, with return on summons, in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts. The judge shall try the qualifications for and excuses from service as a grand juror and impanel the completed grand jury as provided by this chapter.
The old method for selecting grand jurors is included in italics below:
In Texas, the selection process has several phases.
Option 1
First, a designated district judge appoints three to five citizens of the county to be jury commissioners. Commissioners must be “intelligent citizens of the county” and residents of “different portions of the county.” (Chapter 19 of the Code of Criminal Procedure provides directions to a district court judge on how to navigate this process).
Second, jury commissioners select fifteen to twenty citizens of the county to be summoned as grand jurors.
Finally, the grand jury of 12 citizens has to be impaneled. This involves the swearing of an oath to tell the truth and questioning of qualifications. Before this takes place, a challenge of the entire jury or anyone presented as a grand juror may take place. In addition to the 12 selected, two alternates may be chosen. (Chapter 20 of the Code of Criminal Procedure describes how the grand jury works once established).
Option 2
The second method of selecting a Grand Jury involves a judge questioning a group of 20 to 125 prospective grand jurors. The pool of citizens must be residents of the county and will be brought in for questions regarding qualifications and willingness to serve.
Grand Jurors are called to serve for a few months at a time, but do not work full-time. Most grand juries are only called to court a few days out of every month.
Similar to much of our legal history, the idea of having a grand jury traveled across the ocean from England. The idea was incorporated in the Fifth Amendment to the United States Constitution. Later, Texas incorporated the idea of having a grand jury into its own constitution. The Constitution of 1876 requires a grand jury indictment for prosecution of a felony. Unlike felony cases, misdemeanor offenses need not undergo the grand jury process.
Most of the time, a prosecutor addresses grand jurors by reciting the relevant facts of the case so that the grand jury can decide whether there is probable cause to indict the defendant. Additionally, evidence can be presented through use of documents and testimony of witnesses. The accused may also be called to testify. Witnesses can be questioned by the prosecutor and grand jurors when called upon.
Through use of subpoena, the grand jury may summon witnesses. This allows grand jurors to examine witnesses under oath.
Through use of vote, the grand jury may decide whether to pursue an indictment and present it to the Court. In Texas, nine votes are required for indictment. Not all 12 members of the grand jury need be present during voting. Nine members constitute a quorum. (Article 19.40)
The most important power that the grand jury has is to listen to the facts of each case and conclude if probable cause exists. If the grand jury votes in favor of indictment, a “True Bill” is given on the case. If nine votes are not cast in favor of a True Bill, the case is No-Billed. If the case is True Billed, the grand jury forwards the case along to a prosecutor who will continue to work on the development or resolution of the case.
Article 20.011 lists those who may be present in a grand jury room while the grand jury is conducting proceedings:
Article 19.25 of the Code of Criminal Procedure lists acceptable excuses not to serve, including:
In short, no. If you are indicted for a criminal offense in Texas, you are not constitutionally entitled to fight a grand jury’s finding of probable cause that you committed a criminal offense. For example, in Kaley v. United States, the defendant was challenging the legality of a pre-trial retaining order to freeze his assets by fighting the grand jury’s finding of probable cause. The Supreme Court of the United States determined the defendant was not constitutionally entitled to fight such a finding.
Possibly. If you have been arrested or are under investigation for a felony offense in Texas, it is extremely important to contact an experienced criminal defense attorney immediately. A skilled attorney can take steps to build a strong defense at the grand jury level in an effort to try and avoid an indictment. This could include a defense investigation, gathering mitigating and exculpatory evidence, and preparing a persuasive presentation to the grand jury.
The law firm of Varghese Summersett has impressive results obtaining No Bills on behalf of our clients. Our senior attorneys are former prosecutors who use their experience, as well as our own investigators, experts, and forensic accountants, to obtain exceptional results at the grand jury level.
If you are facing a felony indictment, contact the attorneys at Varghese Summersett immediately at (817) 203-2220 or online:
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