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Texas Lawmakers Should Prioritize Grand Jury Reform

| May 14, 2019

Grand jury reform is gaining momentum in Texas. But as the 86th Legislative Session nears curtain, lawmakers need to prioritize Chair Whitmire’s SB 1492 to help restore the grand jury to the safeguard it was designed to be. SB 1492 was voted out of the Senate 29-2. As of this writing, it is up to the House to send it to the Governor. While the substituted version currently in play is scaled back from the original, the policies embodied in SB 1492 will help to restore the independence of the grand jury while maintaining public safety.

The grand jury is tasked with determining whether probable cause exists. By allowing members of the community to make this determination in felony cases, the grand jury functions as a barrier between the State and the people. Under current law, Texas allows prosecutors to bring the same evidence to successive grand juries without restriction. In practice, then, no state-level policy is in place to prohibit the State from presenting a case to a different grand jury when the initial grand jury determined the evidence was insufficient to establish probable cause that a felony had been committed. Leaving the door open for such limitless pursuit undermines the independence of the grand jury. In turn, this results in less protection for Texans and a grand jury system that fails to live up to its original purpose.

SB 1492 seeks to restore some of the grand jury’s independence by prohibiting prosecutors from presenting the same evidence to subsequent grand juries for the same offense. Importantly, though, SB 1492 allows the State to present the case again if it includes material evidence unknown to the prosecutor during the initial grand jury investigation. In some jurisdictions in Texas, the prosecutor’s office already implements policies of this kind. However, it is important to codify this policy statewide to ensure all Texans are protected equally.

Currently, Texas only requires the grand jury testimony of a person accused or suspected of a crime be transcribed or recorded. As above, some jurisdictions in Texas already record or transcribe beyond the minimum legal requirements. SB 1492 would simply extend the current requirement to include testimony of any person with personal knowledge of events related to the investigation, ensuring accuracy and equity during grand jury proceedings.

With these provisions, SB 1492 remains a critical step in the right direction. But policymakers should explore future reforms to improve this critical stage of the criminal justice process. Fortunately, SB 1492 would establish a commission comprised of stakeholders with varying backgrounds to develop recommendations for Texas’ grand jury system. Legislators should pass laws that allow Texas to appropriately hold offenders accountable for their actions, but practitioners do not require unfettered power during a grand jury investigation to accomplish this goal. SB 1492 is a smart and prudent measure that will protect Texans and right-size government power.

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HALEY HOLIK is an attorney on staff with the Texas Public Policy Foundation and its Right on Crime initiative, based in Austin, Texas.

Holik holds a B.A. in Communications from Moody Bible Institute and earned her J.D. from Regent University School of Law.  While a student, she hosted an on-campus radio show dedicated to politics and world events. She served as a clerk for the American Center for Law and Justice during law school, as well as a legislative intern for Rep. Randy Forbes. Holik participated in the Civil Practice Clinic at Regent as a student-practitioner, advocating on behalf of clients in need of civil legal services. As a staff member of Regent University Law Review, her note concerning compelled speech and First Amendment violations was chosen for publication.

As a native Texan, she is grateful to be back in the Lone Star State.

 

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