                             EATTOWNEY                       GENERAL
                                        OIFTEX.~~~


                                        February     26, 1968


Honorable    Richard H. Cory                           Opinion    No.   M-206
Chairman,     State Affairs Committee
Texas House of Representatives                         Re:   Immunity from prose-
Capitol Station                                              cution for criminal     acts
Austin,   Texas    78711                                     resulting   from persons
                                                             testifying   before a Sub-
                                                             Committee      of the House
Dear   Mr.   Cory:                                           State Affairs     Committtie.

         In your recent opinion request        concerning    the above captioned
matter,   you asked whether a witness         appearing    before a legislative    sub-
committee,     voluntarily    invited or subpoenaed,      who testifies   concerning
any unlawful acts in which he is implicated,          would gain immunity       from
criminal   prosecution     if he so testifies  without being under oath.        You also
asked whether     the answer would be any different         in case the witness was
under oath at the time of his testimony,          such oath being administered        by
the Chairman     of the Committee      or a Notary Public of the County of the
hearing,   and/or if such witness       appears and so testifies      in response   to
a subpoena.

          First,    we assume that the cwnmittee   or sub-committee  referred
to by you is one duly authorized     by statute and created by a House of the
Legislature      with a quorum present.

        Generally,     immunity    from criminal    prosecution    is a concept which
was unknown in common law and which is afforded              only by virtue of either
the Constitution    or statutes.    Neither the United States Constitution      nor the
Texas Constitution      provide  for immunity    as such, but only give a witness
the unqualified   right to refuse to incriminate      himself   by testifying.

          The Texas Legislature         has provided   by statute for immunity        for
witnesses     required   to testify   over their objection   before    Legislative     Com-
mittees.     In Section 13 of Article      5429f. Vernon’s    Civil Statutes,      an Act
known as the “Legislative         Reorganization     Act of 1961, ‘I it is provided     that
a witness   who refuses      to testify to any fact or to produce any papers upon
examination      by either House of the Legislature,        or by any Comiilittee        of any
House,    upon the ground that such would incriminate            or tend to incriminate


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Honorable    Richard   H.   Cory,   page   2, (M-206)




him, shall nevertheless       be required    to testify   and produce papers,      but when
so required,    over his said objections,       such person     shall not be subject to
indictment   or prosecution     by the State of Texas for any transaction,           matter
or thing concerning      which he truthfully    testifies   or produces    evidence,   docu-
mentary    or otherwise.      This statute has been upheld.         Ferrantello   v, State,
158 Tex. Crim.     R 471, 256 S. W. 2d 587,!1953).
                                               ,$ :I


          In view of the foregoing,      it is our opinion,   under the circumstances
posed in your questions,       that before     such witness would be entitled to the
immunity     from prosecution     afforded    by Section 13 of Article   5429f, he would
first have to refuse to testify,      in response     to a question put to him by such
committee,      on the ground that such testimony         or production  of papers would       :
incriminate     or tend to incriminate      him.    Then if an answer to such question
was insisted     upon by the committee,        such witness   would gain immunity    from
state prosecution     concerning    the matter or thing about which he truthfully
testifies   or produces   evidence    thereon.

         The foregoing      is true as to such witness whether          under oath or under
waiver   thereof   as provided     in Section 11 of said Article       5429f.    While sub-
poenas are authorized        for the production      of witnesses    in such cases,     it is
not considered     that they are necessary         in all cases; and consequently       whether
such witness     appea~rs voluntarily,      is invited,    or is subpoenaed,      these facts
would not change the foregoing        answer.      Howeve.r;    in order for the answer
given by the witness      who is required       to testify on subjects over his objections
to invoke immunity,       it must appear that the answer is truthful as to the matter
inquired   about.    Answers     given by him that are unresponsive           would not invoke
immunity    concerning     the matter    testified    about, being not in issue and not
required   by the committee       or the House conducting         the investigation.

                                    SUMMARY

                   A witness    appearing    before   a duly constituted    and
         authorized      sub-committee     of the House State Affairs      Com-
         mittee.    eithervoluntarily,      invited or subpoenaed      will gain
         immunity      from state criminal      prosecution   concerning     any
         unlawful acts about which he is required           to testify  over his
         objection,     whether   his testimony     be under oath, or such
         oath is waived by the sub-committee.
Honorable      Richard   I-I. Cory,   page   3, (M-206)




                    Unresponsive      answers        afford   the witness    no
            immunity.




                                                                            eneral   of Texas

Prepared      by R. L. (Bob) Lattimore
Assistant     Attorney General

APPROVED:
OPINION   COMMITTEE

Kerns   Taylor,     Chairman

Roger Tyler
Robert Owen
John Banks
Harold Kennedy
Lenny Zwien~er                   ., ~.~,   ~.~

A. J. CARUBBI,      JR.
Executive Assistant




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