
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-95-00098-CR





Ex Parte:  Russell Kyler







FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0950475, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING







	Russell Kyler appeals from a denial of relief requested under a writ of habeas
corpus.  In his writ application, Kyler challenged a district court contempt order issued pursuant
to article 20.15 of the Texas Code of Criminal Procedure for Kyler's refusal to testify before a
grand jury.  We will reverse the district court's order denying relief under the writ.


THE CONTROVERSY

	A subpoena required Kyler to testify before the grand jury for the 299th Judicial
District Court of Travis County.  Following denial of his motion to quash the subpoena, Kyler
appeared before the grand jury and refused to answer questions, invoking his Fifth Amendment
privilege against self-incrimination.  The State moved to grant Kyler testimonial immunity and
compel his testimony.  The court issued an order granting Kyler testimonial immunity and
requiring him to testify before the grand jury.  Tex. Penal Code Ann. § 71.04 (West 1994).
	The next day Kyler appeared before the grand jury and declined to answer a
question regarding his knowledge of a contract.  The State immediately filed a motion for
contempt and a hearing was held.  Based on the earlier order granting Kyler testimonial immunity,
the district court held him in contempt, assessed a fine of $500 and committed him to jail until he
agreed to testify.  The court also denied Kyler's application for writ of habeas corpus.  The 167th
district court issued the writ on Kyler's application to that court.  After a hearing, the court denied
the relief requested under the writ of habeas corpus.  This appeal ensued.  The term of the grand
jury to which Kyler was subpoenaed has expired.  The portion of the contempt order requiring
Kyler's testimony is therefore moot.  Ex parte Port, 674 S.W.2d 772, 780 (Tex. Crim. App.
1984), overruled on other grounds, 740 S.W.2d 449 (Tex. Crim. App. 1987); Ex parte
Rodriguez, 629 S.W.2d 757, 759 (Tex. Crim. App. 1982).  Only the $500 fine is in issue.


DISCUSSION AND HOLDINGS

	Kyler's points of error one through five challenge the validity of the contempt
order.  The question before us is whether the contempt order was obtained in compliance with the
procedures required by article 20.15 of the Code of Criminal Procedure.
	Under article 20.15, when a witness before the grand jury refuses to testify, "the
court may compel the witness to answer the question, if it appears to be a proper one, by imposing
a fine not exceeding five hundred dollars, and by committing the party to jail until he is willing
to testify."  Tex. Code Crim. Proc. Ann. art. 20.15 (West 1979).  The wording of article 20.15
implies the existence of a specific question or questions the witness has refused to answer.  After
determining that such questions are proper, the court may order the witness to answer.  If the
witness again refuses to answer, "the court may then punish the witness for violating the court's
order."  Ex parte Edone, 740 S.W.2d 446, 449 (Tex. Crim. App. 1987).
	The district court failed to adhere to the procedure set forth in article 20.15.  The
order granting Kyler testimonial immunity did not order him to answer specific questions found
to be proper.  Assuming Kyler refused to answer questions propounded before the grand jury after
he was granted testimonial immunity, article 20.15 required that he be brought again before the
court.  After determining the propriety of the specific questions Kyler had refused to answer, the
court could have ordered Kyler to answer them.  If Kyler refused to answer following this order
to do so, then his violation of that order would have constituted contempt of the court under article
20.15. (1) Ex parte Edone, 740 S.W.2d at 449.  The order granting immunity and requiring Kyler
generally to testify did not satisfy the requirements of article 20.15, namely an order to answer
a specific question found to be proper and a subsequent violation of that order. 


CONCLUSION

	We find the district court did not comply with the procedure required by article
20.15.  Accordingly, we sustain Kyler's points of error one through five.  We reverse the order
denying relief requested in the application for writ of habeas corpus and render judgment that  

Kyler be discharged from the order of contempt, thus relieving Kyler from the $500 fine.  In light
of the foregoing disposition, we need not address Kyler's remaining points of error.


  

					John Powers, Justice
Before Justices Powers, Aboussie and Kidd
Reversed and Rendered
Filed:   September 20, 1995
Publish
1.        The district court order that held Kyler in contempt of the grand jury is incorrect.  The
refusal to testify before a grand jury following a court order constitutes contempt of the court. 
Ex parte Edone, 740 S.W.2d 446, 449 (Tex. Crim. App. 1987). 


tion for
contempt and a hearing was held.  Based on the earlier order granting Kyler testimonial immunity,
the district court held him in contempt, assessed a fine of $500 and committed him to jail until he
agreed to testify.  The court also denied Kyler's application for writ of habeas corpus.  The 167th
district court issued the writ on Kyler's application to that court.  After a hearing, the court denied
the relief requested under the writ of habeas corpus.  This appeal ensued.  The term of the grand
jury to which Kyler was subpoenaed has expired.  The portion of the contempt order requiring
Kyler's testimony is therefore moot.  Ex parte Port, 674 S.W.2d 772, 780 (Tex. Crim. App.
1984), overruled on other grounds, 740 S.W.2d 449 (Tex. Crim. App. 1987); Ex parte
Rodriguez, 629 S.W.2d 757, 759 (Tex. Crim. App. 1982).  Only the $500 fine is in issue.


DISCUSSION AND HOLDINGS

	Kyler's points of error one through five challenge the validity of the contempt
order.  The question before us is whether the contempt order was obtained in compliance with the
procedures required by article 20.15 of the Code of Criminal Procedure.
	Under article 20.15, when a witness before the grand jury refuses to testify, "the
court may compel the witness to answer the question, if it appears to be a proper one, by imposing
a fine not exceeding five hundred dollars, and by committing the party to jail until he is willing
to testify."  Tex. Code Crim. Proc. Ann. art. 20.15 (West 1979).  The wording of article 20.15
implies the existence of a specific question or questions the witness has refused to answer.  After
determining that such questions are proper, the court may order the witness to answer.  If the
witness again refuses to answer, "the court may then punish the witness for violating the court's
order."  Ex parte Edone, 740 S.W.2d 446, 449 (Tex. Crim. App. 1987).