The parties in a life insurance dispute convinced their county court at law judge to order the DA to turn over GJ testimony from a case 5 years prior where no criminal conduct was found by the M.E. or by the GJ. I filed an objection on the DA's behalf and a Motion to Reconsider and to Quash. I argued GJ secrecy and how there is no exception in the statute for civil litigants. The judge has ordered a full hearing on this. Am I missing something? If he continues to order it, is my next step a Writ of Prohibition?

[This message was edited by ASG on 06-11-08 at .]

I think you are correct. There is limited discovery available to a criminal defendant, but grand jury testimony is secret, and for a very good reason. This is a classic case -- people who came forward and testified, resulting in no charges. this promise of confidentiality is a key to the effectiveness of the grand jury, and there is no exception.

I am unaware of any cases on point, but their is a good discussion of the principle in the case in which Jack Stern, the former DA in Fort Bend, was removed from office for revealing grand jury testimony. Here it is:

Stern v. State ex rel. Ansel, No. C14-92-01362-CV, COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON, 869 S.W.2d 614; 1994 Tex. App. LEXIS 1, January 6, 1994, Rendered, January 6, 1994, Filed

Note that this case was decided before additional amendments to the grand jury law clearly outlining the limited circumstances in which GJ testimony could be revealed, and to whom.

It's against the law to reveal it to other people, period. Even if those other people would REALLY like to know what was said.

They have an alternative: they can see who testified before the grand jury, and go talk to them themselves. That is what they should be doing. They don't actually need what was said at the grand jury for any purpose.

I agree with Rob. They don't need the GJ testimony. They want it. Their solution is to depose the people who appeared before the GJ.

Yes, if the judge denies the motion to quash, I suppose you take a writ of mandamus. However, if the judge is making a discretionary call, you may not have much room to litigate the issue.

What about filing something in the district court that empaneled the Grand Jury? Presumably, they would have a different feel for the secrecy of the Grand Jury and more of a desire to protect that secrecy than a different court. I would think you could file it in the case from which they're seeking information. I have no idea what vehicle you would use, however.

I like that idea, because that judge is then protecting his/her grand jury. And a judge with a criminal docket will have more appreciation for criminal law than a judge with only a civil docket.

Whether ordering disclosure is, in and of itself, a discretionary call shouldn't discourage seeking mandamus if the judge orders release of grand jury testimony in contravention of law. In a civil case, even where the judge has discretion in making a determination on the law, misapplying it or acting without reference to the guiding rules and principles (otherwise known as "abuse of discretion") will support mandamus. Add to this the fact that courts reviewing a civil mandamus are receptive to the idea that no adequate remedy at law exists when legally confidential information is ordered disclosed, since one cannot "unring the bell."

I like the idea of going to the court that convened the grand jury, but it presents a potential problem. Generally, Texas trial courts don't have jurisdiction to control their sister trial courts (other than an "anti-suit" injunction, which doesn't seem pertinent here). I suppose an argument could be made in the "grand jury" court that the other civil court is doing precisely that by attempting to abrogate the first court's control over its grand jury and its resulting confidential records.

Just a few thoughts from a recovering civil dweeb. Please return to your more learned discussion.

Any argument that the motion seeking grand jury stuff should be transferred to the grand jury court? I'm scratching my head trying to remember some civil law from all those years before . . .

I'm gonna shoot off my mouth here about something I really know nothing about...

The judge lacks discretion to flat out break the law. So quashing the order for illegal disclosure is the judge's ministerial duty, not a matter of discretion, and therefore open to mandamus.

Art. 20.02. PROCEEDINGS SECRET
(g) The attorney representing the state may not disclose 
anything transpiring before the grand jury except as 
permitted by Subsections (c), (d), and (e).

Subsection (c) allows you to give info to other prosecutors, grand jury members, or law enforcement, but the recipient of the info is held to the same secrecy as the grand jury.

Subsection (d) and (e) describe and exception where the defendant can get the grand jury information with a showing of particularized need but it must be filed in the district court in which the case is pending. If this happens all the parties to the grand jury proceeding must be served notice and have an opportunity to appear before the court and present arguments for or against breaking the secrecy and disclosing the information to the defendant and if the defendant wins and gets the info then he is now bound to the same secrecy as the grand jury.

Ready for some more ignoranance spewing from my head? Here goes:
So only the defendant has any standing to get at grand jury information, and only while the case is pending... it was no billed over 5 years ago. So it is definately NOT pending.

Also check out 20.16 where the witnesses are sworn to secrecy... there is no time limit that makes it OK to talk about the Fight Club... the only time limit is how long you spend in jail if you break secrecy.

So today, we had a hearing in the county court at law judge's courtroom in the civil case. I argued that the judge had no jurisdiction - that it should be the decision of the District Judge who presided over the GJ. I argued GJ secrecy and the chilling effect it would have on GJ witnesses if they were told their testimony would be used in a civil case down the road. I argued that the Plaintiff's claim that she needed the testimony for impeachment purposes did not cut it legally. etc. etc. After a 90 minute hearing, the civil county court at law judge continued to order the DA to turn over the GJ testimony. So, off to Writ of Prohibition/Mandamus-land I go. Could use any help or advice on this that you all may have. Thanks!

The judge needs to reduce the order to writing. Docket entry probably not enough. Oral order certainly not enough.

Mandamus opinion from 5th coa

He did sign a 3-page order. Thanks.

You will probably succeed in your mandamus.

Thanks for the update! Please keep us posted on the outcome.

That court is actually a criminal court as well, it's just a county ct at law with increased civil jurisdiction because of a multi-county district court.

This case has been pending a while and is very interesting with some controversial legal implications.

A JP was ordered to testify about the thought processes behind ruling the death a suicide--at the ME's request, and sanctioned when she refused to testify on that issue. That was mandamused as well--earlier this year. The sanction was reversed, but not the order to answer that particular line of questioning, so the JP did.

I guess the deposer did not get enough answers and now wants to look into the grand jury inquest that also found no criminal action.

I'm trying to get caught up with life and this Website. What happened?

Here's an update: on Friday before Memorial Day, the judge set a show cause hearing to be held the Tuesday after Memorial Day for the D.A. to show cause as to why he shouldn't be held in contempt of court for not turning over the grand jury materials to the civil litigants in the insurance case. (Remember - this is not even the judge who convened the Grand Jury in question). So, Tuesday, first thing in the morning, I was at the Court of Appeals with a Motion for Emergency Stay, and Petition for Writs of Mandamus and Prohibition. I'm happy to report that the Emergency Stay was granted an hour before the hearing was to start. Thank you to Leslie and to Durfee for your help. (Durfee was my Chief 18 years ago and is as helpful now as he was back then.) Hopefully, there will be good news on the writs.

Thanks for the updates, keep 'em coming!

Court of Appeals denied Mandamus/Prohibition and lifted the stay which means the D.A. is ordered (in the civil case) to turn over confidential Grand Jury testimony to the civil litigants. Their trial is Monday. Is my next step a Motion for Emergency Relief and another Petition for Writ of Mandamus to the Tex. Sup. Court? I welcome all suggestions and I would really welcome amici!

Why did they deny mandamus?

Said court didn't abuse discretion.

[This message was edited by ASG on 06-10-08 at .]