Opinion
WR-94,066-01
09-01-2022
IN RE JACKI L. PICK, Relator
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS, MOTION TO SEAL PROCEEDINGS, AND MOTION TO STAY CAUSE NO. 05-22-00817-CV IN THE FIFTH COURT OF APPEALS CAUSE NO. OSW-22-00030-H IN THE CRIMINAL DISTRICT COURT NO. 1 DALLAS COUNTY
Yeary, J., filed a dissenting opinion in which Keller, P.J., and Walker and Slaughter, JJ., joined.
Relator has been summoned to testify in Georgia under the authority of the Uniform Act to Secure the Attendance of Witnesses from without State in Criminal Proceedings (Uniform Act). Texas has adopted, as part of our Code of Criminal Procedure, the Uniform Act, and this state is a participant in the requirements of that act. See Tex. Code Crim. Proc. art. 24.28. Pursuant to the Uniform Act, a district court judge in Dallas County has ordered Relator, a resident of this State, to travel to Georgia to give testimony in a proceeding conducted by a body described variously as a "special grand jury," a "special purpose grand jury," and an "investigative grand jury." But Article 24.28 allows such compelled travel, and submission to the compulsory process laws of another state, only when the proceedings to be attended are "criminal" in nature, or where they are conducted by an actual "grand jury."
The Georgia legislation creating such grand juries provides:
(a) The chief judge of the superior court of any county to which this part applies, on his or her own motion, on motion or petition of the district attorney, or on petition of any elected public official of the county or of a municipality lying wholly or partially within the county, may request the judges of the superior court of the county to impanel a special grand jury for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law.
(b) Until July 1, 2012, the chief judge of the superior court of the county shall submit the question of impaneling a special grand jury to the judges of the superior court of the county and, if a majority of the total number of the judges vote in favor of impaneling a special grand jury, the members of a special grand jury shall be drawn in the manner prescribed by Code Section 15-12-62. On and after July 1, 2012, the chief judge of the superior court of the county shall submit the question of impaneling a special grand jury to the judges of the superior court of the county and, if a majority of the total number of the judges vote in favor of impaneling a special grand jury, the members of a special grand jury shall be chosen in the manner prescribed by Code Section 15-12-62.1. Any special grand jury shall consist of not less than 16 nor more than 23 persons. The foreperson of any special grand jury shall be selected in the manner prescribed by Code Section 15-12-67.
(c) While conducting any investigation authorized by this part, investigative grand juries may compel evidence and subpoena witnesses; may inspect records, documents, correspondence, and books of any department, agency, board, bureau, commission, institution, or authority of the state or any of its political subdivisions; and may require the production of records, documents, correspondence, and books of any person, firm, or corporation which relate directly or indirectly to the subject of the investigation being conducted by the investigative grand jury.Geo. Code § 15-12-100 (emphasis added).
Article 24.28, Section 3 (a), of our Code of Criminal Procedure provides, with regard to summoning witnesses in this state to testify in another state, the following:
If a judge of a court of record in any State which by its laws has made provision for commanding persons within that State to attend and testify in this State certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this State is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.(emphasis added). Section 2 of that same statute also provides that a "[w]itness" under the act shall include "a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding." See id. § 2. So, the authority to compel the attendance of a resident of this state at proceedings in another state is limited to circumstances in which there is a pending "criminal prosecution" or proceedings being conducted by a "grand jury." And Relator asks us to determine whether the "special grand jury" seeking her testimony is actually a "grand jury" under the Uniform Act.
Some members of this Court have now voted to dismiss this filing by Relator as moot. I would not do that. I believe Relator has presented at least a prima facie case for the conclusion that she is in fact entitled to mandamus relief. Also, to the extent her complaint is believed by some to be moot, and now that our Court has voted to dispose of the matter on that ground, I am convinced that her circumstances warrant review under an exception to the ordinary rules relating to mootness.
Judge Newell's concurring opinion would find Relator's application for mandamus relief to be moot because the terms of the order requiring her to appear have now expired Concurring Opinion at 2 (In my view, this case satisfies an exception to the mootness doctrine See note 4, post) His concurring opinion cites the Armes opinions to suggest that we have declared extraordinary relief to be "moot" in the past when the day for testifying under the Uniform Act had passed Id. at 3 n4 (citing Ex parte Armes, 582 S.W.2d 434, 439 (Tex Crim App 1979) (Armes II), as well as Ex parte Armes, 573 S.W.2d 7, 8-9 (Tex Crim App 1978) (Armes I)) But neither case declared the habeas corpus claim to be moot, as suggested by the parentheticals in that footnote, for the reason that "the day for testimony had passed" Rather, in Armes I, the Court declared his claim to be "moot" for purposes of pursuing habeas corpus relief because he was unable to establish that he was "under some form of restraint of liberty" Armes, 573 S.W.2d at 9 (I do wonder about whether the Court was correct to decide that this rendered his claim "moot," in that case, so much as it may have just made it not properly the subject of habeas corpus proceedings to begin with!) The only reference to mootness that appears in Armes II is in its description of the disposition of the appellant's habeas corpus claim in Armes I Armes, 582 S.W.2d at 437 And to the extent that in those two cases we may "have already judicially reviewed the terms of the statute" in Armes II, Concurring Opinion at 3, we certainly did not address the issue this Relator raises in the present application for writ of mandamus.
See State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 483 (Tex. Crim. App. 1985) (Clinton, J., concurring) ("Having concluded that it had jurisdiction, power and authority to grant relief through writ of mandamus, the Court found that petitioner had sufficiently 'raised a prima facie claim,' such that it became 'the duty' of respondent judge to set the criminal actions for trial[.]") (quoting Thomas v. Stevenson, Judge, 561 S.W.2d 845, 847 (Tex. Crim. App.1978)) (emphasis added).
In Pharris v. State, 165 S.W.3d 681, 687-88 (Tex. Crim. App. 2005), this Court explained that "[a] case that is moot is normally not justiciable." But the Court identified one exception to that general rule for circumstances "when a claim is 'capable of repetition, yet evading review.'" Id. The Court observed that the United States Supreme Court has said that "the 'capable of repetition but evading review' doctrine [is] limited to the situation where two elements combine: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Id. at 681. The Court also observed that "[w]e have adopted and applied this doctrine ourselves, as has the Texas Supreme Court." Id. (footnote omitted). It seems obvious to me that, in this case, the exception clearly applies. The Court only received the motion for leave to file and the application in this case on August 24, 2022. Furthermore, because it does not appear that Relator has yet testified in the Georgia proceedings, it is reasonable to assume that the Georgia authorities will once again seek to compel her attendance, or that they at least may seek to have other witnesses compelled to attend in the same proceeding under authority of the Uniform Act. Judge Newell's concurring opinion asserts that "[g]rand jury proceedings . . . are not the types of emergency proceedings that have been held capable of evading review." Concurring Opinion at 3. Other jurisdictions have concluded otherwise. See In re Grand Jury Subpoena, 447 Mass. 88, 89, 849 N.E.2d 797, 799 (2006) (issue of whether spousal privilege applies in grand jury proceedings reached notwithstanding mootness because "the issue is likely to recur during other grand jury proceedings"); Ex parte Jones County Grand Jury, First Judicial District, 705 So.2d 1308, 1313-14 (Miss. 1997) (issue whether trial court could enjoin grand jury from issuing subpoena was technically moot because grand jury had already been discharged, but appeal could still proceed under the "capable of repetition yet evading review" doctrine).
Relator contends, in an application to this Court for a writ of mandamus, that the proceedings in Georgia for which she is sought to be summoned are "civil" in nature, and that a "special purpose grand jury" as defined by Georgia Law is not even a "grand jury" as contemplated by Article 24.28. Relator points to a Georgia Court of Appeals decision from 2011, styled Kenerly v. State, for assistance. 715 S.E.2d 688 (Ga.Ct.App. 2011). Indeed, in Kenerly, the Georgia Court of Appeals explained that, in a prior decision, it had "concluded that special purpose grand juries conduct only civil investigations." 715 S.E.2d at 692 (emphasis added). The court also recognized at least one very crucial difference between a "grand jury" as that term is commonly used and understood, and a "special purpose grand jury" as established in Georgia law. Specifically, that court held that, unlike an ordinary Georgia "grand jury," a "special purpose grand jury" under Georgia law lacks the "power to indict." Id. at 692. But does the absence of that power suggest that the body named in Georgia law as a "special grand jury" is not the kind of "grand jury" contemplated by Article 24.28? That is the question that we should now answer.
Some might question whether this case is even subject to mandamus because its answer has not already been settled upon by the Court and arguably involves what appears to be a case of first impression. "To be entitled to mandamus relief, the relator must show two things: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act." In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). Relator has no adequate remedy at law. There is no appeal from an order of a Texas state court compelling submission to the compulsory process laws of another state under the Uniform Act. Ex parte Armes, 573 S.W.2d 7, 9 (Tex. Crim. App. 1978).
But what about the ministerial act requirement? In Weeks, this Court said: "The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought." Weeks, 391 S.W.3d at 122. "A clear right to relief is shown," the Court explained, "when the facts and circumstances dictate but one rational decision 'under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.'" Id. The Court also acknowledged that, "[a]lthough we have sometimes suggested that a legal issue's status as one of first impression meant that the law was not well-settled, we have since clarified that [even] an issue of first impression can sometimes qualify for mandamus relief." Id.
Our Code Construction Act provides that "[a] uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those states that enact it." Tex. Govt. Code § 311.028. So far as I can tell, no signatory state to the Unform Act has ever encountered a case in which the question presented here was addressed. The question presented here is whether a "special grand jury," which even Georgia courts acknowledge to be distinguishable from a "grand jury" under that state's law, is nevertheless the same thing as a "grand jury" under the Uniform Act?
The Supreme Court of Georgia has explained its own understanding of the purpose of the Uniform Act in this way:
The Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, approved by the National Conference of Commissioners on Uniform State Laws in 1931 and amended in 1936, is intended to provide a means for state courts to compel the attendance of out-of-state witnesses at criminal proceedings.Yeary v. State, 711 S.E.2d 694, 696 (GA. 2011) (quotation marks and citations to authorities omitted; emphasis added). But this Court makes no attempt to decide whether an investigation such as the one being conducted in Georgia today-by a body that, at least according to present interpretations of the law from that state's own courts, conducts only civil investigations and may not itself present an indictment or initiate a criminal prosecution-is a criminal proceeding. Plenty of formally convened groups of people who investigate things might also uncover facts that could ultimately lead to criminal prosecutions, but that feature alone does not make them grand juries.
The defendant/appellant in the cited opinion is of no known relation to the author of this opinion.
Black's Law Dictionary contains definitions for a number of different kinds or types of grand juries, including even one definition for a "runaway grand jury," but it defines the term "grand jury," specifically, as:
"A grand jury that acts essentially in opposition to the prosecution, as by calling its own witnesses, perversely failing to return an indictment that the prosecution has requested, or returning an indictment that the prosecution did not request." BLACK'S LAW DICTIONARY 843 (11th ed. 2019).
A body . . . of people who are chosen to sit permanently for at least a month-and sometimes a year-and who, in ex
parte proceedings, decide whether to issue indictments. See Fed. R. Crim. P. 6. • If the grand jury decides that evidence is strong enough to hold a suspect for trial, it returns a bill of indictment (a true bill) charging the suspect with a specific crime.
BLACK'S LAW DICTIONARY 843 (11th ed. 2019) (emphasis added). The United States Court of Appeals for the Second Circuit has adopted that very definition in United States v. Awadallah, 349 F.3d 42, 52 (2d Cir. 2003). And that definition seems to me, at least, to suggest that the indictment power is central to a body's identity as a "grand jury."
Each state in these United States is a sovereign to itself. As such, it may make laws that suit its own people, so long as those laws do not contravene our federal constitution. Texas did so when it adopted the Uniform Act in 1965. See Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. But Georgia first authorized its courts to impanel "special purpose grand juries" in 1974. See GRAND JURY HANDBOOK -STATE OF GEORGIA (Prosecuting Attorneys' Counsel of Georgia 2014-2017), at 13 ("In 1974, the General Assembly authorized the Superior Courts in designated counties to impanel Special Purpose Grand Juries if requested to do so by an elected public official."). Texas was therefore not even on notice that Georgia might create such "special purpose grand juries" when it adopted the Uniform Act in 1965.
Available for viewing at this website: https://pacga.org/wp-content/uploads/2019/02/2017_gjh_singles.pdf (last visited on August 30, 2021).
The Uniform Act provides a unique authority. "It was promulgated over half a century ago and has been adopted in substance in each state, the District of Columbia, the Virgin Islands, and Puerto Rico." State v. Breeden, 333 Md. 212, 222-23, 634 A.2d 464, 469 (Md. 1993), citing to Uniform Act to Secure Attendance of Witnesses, 11 U.L.A. 1 (1974, 1993 pocket part). The Maryland Court of Appeals has observed that, although "[j]urisdictions have adopted variations to the Uniform Act, . . . the gist and goals of the model law remain intact." Id., Md. at 223, A.2d at 469. It explained that "'The essence of the Uniform Act is to create a community of jurisdictions which will honor the request of fellow members for the appearance of witnesses at criminal proceedings under the conditions specified in the Act.'" Id. (emphasis added) (quoting People v. Superior Court, 224 Cal.App.3d 1405, 274 Cal.Rptr. 586, 589 (1990)). It has long been recognized as "obvious[]" that the object of such a statute "is to promote the enforcement of the criminal laws and the administration of justice in criminal proceedings in the several states." People of State of New York v. Parker, 16 N.J.Misc. 471, 1 A.2d 54, 55 (Cir. Ct. 1936) (emphasis added). That the same comity between states was not intended to be conveyed for situations in which criminal prosecutions are not either ongoing or imminent is self-evident. See State v. Lesco, 194 Kan. 555, 400 P.2d 695, 699 (1965), cert. denied, 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 529 (1966) ("The Uniform Act was intended as a matter of comity between states to enable states to obtain material witnesses for criminal prosecutions.") (emphasis added).
But it might be to the advantage of some co-adoptee state, by passing laws unique to its own jurisdiction, to designate a body as a "grand jury" of some sort or another, which, though not really being a "grand jury" as contemplated by the Uniform Act, might obtain by that designation the right to summon witnesses, even when they must be compelled to attend from out of state. Imagine a state that wanted to avail itself of such privileges, but only for the purpose of compelling out-of-state witnesses to address purely legislative committees about purely legislative concerns. If that state were to attempt to usurp the privileges afforded by the Uniform Act for its own purely legislative purposes by adopting a law designating an otherwise purely legislative committee as that state's "Grand Jury for Legislative Concerns," would that "grand jury" be the kind of grand jury that is contemplated by Article 24.28?
Such an action by a co-adoptee state would, in my view, at least be an abuse of the comity intended by the mutual adoption of the Uniform Act. See Yeary, 711 S.E.2d at 696 ("Relying on the principles of comity in the absence of unilateral power to compel the appearance of a witness located out of state, the Uniform Act has been enacted by all fifty states."). In circumstances such as that, it would seem entirely reasonable to question whether a participating state, like Texas, would be bound to compel its own citizens to attend proceedings conducted by such a body, in that co-adoptee state. So, the question is presented: How much can a state change the nature of a body it calls a "grand jury" before another state may say, finally, that it is no longer the grand jury envisioned by the Uniform Act and Article 24.28?
I am convinced that there are at least four necessary and defining characteristics of a "grand jury" in contemplation of the Uniform Act. The first is that the body be convened by a court. See, e.g., Tex. Code Crim. Proc. art. 19A.051. The second is that the body be imbued with investigative authorities and the tools with which to compel the attendance of witnesses and production and development of evidence. See, e.g., Tex. Code Crim. Proc. arts. 20A.051 & 20A.251-259. The third is that the members of the body must maintain the secrecy of the proceedings. See, e.g., Tex. Code Crim. Proc. art. 20A.202. The fourth is that the body possess the independent power to indict or to refuse indictment. See, e.g., Tex. Code Crim. Proc. art. 20A.301. There may be more, but in the absence of one of these four defining characteristics, I am inclined to find such a body is not the kind of grand jury envisioned by the Uniform Act. And if I may be wrong about that, I would place the burden to show otherwise on the requesting state.
The "special grand jury" in Georgia that seeks to compel Relator's attendance and submission to that state's compulsory process laws lacks the authority to indict. This suggests to me that it is not an actual "grand jury" in contemplation of the Uniform Act. If my assessment is correct, the Texas district court judge who ordered Relator to travel to Georgia and to submit to its laws had no discretion, under the Act, to compel such attendance and submission. It could only have properly done so if the case involved a "pending" "criminal prosecution" or a pending or impending investigation by an actual "grand jury." Tex. Code Crim. Proc. art. 24.28 § 3. I am at least preliminarily inclined to conclude that the district court judge in this case acted beyond his authority to order compliance under terms of the Uniform Act and that the writ of mandamus should issue.
By rejecting Relator's application even before it is filed, the Court seems to presume that a proceeding must be criminal in nature merely because the name of the body conducting the proceeding somewhere contains the words "grand jury." Never mind that it is a "special" or "special purpose" one (whatever that means). Perhaps, if this Court were to file and set this case to consider Relator's argument, it might reach the conclusion that a Georgia "special purpose grand jury" is indeed a grand jury as contemplated by Article 24.28 of our Code of Criminal Procedure-the Uniform Act. But it might also ultimately conclude the opposite-that a "special purpose grand jury" is not a grand jury at all as contemplated by that act. But by refusing even to consider the question, in this instance, the law is left vulnerable to potential misapplications, both present and future.
In that event, mandamus would lie because the court that ordered Relator to travel to Georgia would lack the authority to do so, and it would have a ministerial duty to vacate that order. See George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 61:29, at 973 (3rd ed. 2011) ("If a trial judge lacks authority or jurisdiction to take particular action, the judge has a 'ministerial' duty to refrain from taking that action, to reject or overrule requests that he take such action, and to undue the action if he has already taken it."); State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83 (Tex. Crim. App. 1987) (mandamus lies to compel trial court to vacate an order it had no authority to issue); State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506-07 (Tex. Crim. App. 2011) (same).
I would file and set and ask for briefing from the parties. Because the Court refuses even to consider these arguments, the answers to which might indeed call out for the issuance of the writ of mandamus in this case, I respectfully dissent.