                                   January    28,   1975


The Honorable A. R. Schwartz                               Opinion No.   H-   508
Chairman,   Jurisprudence Committee
Texas State Senate                                         Re: The applicability   of articles
Capitol Building                                           36.03(a)(l) and 36.04(a)   to
Austin, Texas                                              correspondence     by an attorney
                                                           in behalf of a client addressed
                                                           to a grand jury.

Dear Senator   Schwartz:

         You have asked our opinion as to the applicability  of sections 36.03
and 36.04 of the Texas Penal Code to situations where an attorney
corresponds   with a grand jury in behalf of a client and furnishes a copy
of such correspondence    to the prosecuting atto~rney.  You describe the
situation involved as follows:

                     Under Chapter 36 of the new Texas Penal Code,
                Sets.  36.03(a) (1) and 36.04(a)(b),  certain influences
                toward public officials are made criminal.        It has
                been the practice in Texas for years to permit counsel
                to correspond   with Grand Juries regarding pending
                matters provided that opposing counsel is given copies
                of the correspondence    and that the correspondence
                contains only a factual presentation.      It is my understand-
                ind that such communication,when                made openly and with
                notice to opposing counsel,has    not           affected the secrecy
                of the Grand Jury proceedings     and            has been found
                appropriate   under previous   Texas            law on the notion that
                it is the Grand Jury’s duty to hear              all of the facts in a
                case.

                    . .    .   .




                                         p.   2290
The Honorable      A. R.   Schwartz     page 2      (H-508)




                       My question relates to whether Sets.           36.03(a)(l)
                   and 36.04(a)(b) specifically, or any other         Sections of
                   Chapter 36 of the new Texas Penal Code,            now prohibit
                   such correspondence    by Texas attorneys         to Texas Grand
                   Juries.

         Section   36.03   provides   in pertinent    part:

                       (a) A person    commits      an offense   if by means   of
                   coercion he:

                       (1) influences or attempts to influence a public
                   servant in a specific exercise   of his official power
                   or a specific performance    of his official duty: . : .

         Section   36;04   reads   in part:

                        (a) A person commits an offense if he privately.
                   addressees a representation,     ‘~entreaty, argument, or
                   other communication     to any public servant who exer-’
                   cises or will exercise    official discretion in an
                   adjudicatory   proceeding with an intent to influence the
                   outcome of the proceeding on the basis of considera-
                   tions other than those authorized by law.

                       (b) For purposes of this section,      ‘adjudicatory pro-
                   ceeding” means any proceeding       before a court or any
                   other agency of government      in which the legal rights,
                   powers,   duties, or privileges    of specified parties are
                   determined.

         Notice is made that the term “public servant” as used in sections
36.03   and 36.04 includes a grand juror.   Section l.O7(a)(30)(B).

         Considering  first the relevance of section 36.03 to the question
posed, it is clear that the action of a lawyer,   in addressing a grand jury
by letter in behalf of a client, does not necessarily   come within the purview




                                         p. .2291
The Honorable    A. R.   Schwartz   page 3       (H-508)




of section 36.03.     When it is limited to factual matters such communication
is not “coercion”    as defined by section 36.01,   since “coercion” must
include a “threat.   ” See
                        -    sec. 36.01,  Texas Penal Code.

         Thus, an attorney’s  communication     by letter with a grand jury
in the course of representing   a client, the’letter   containing no “threat”
to take some action against the grand jury,     does not violate the
injunctions of section 36.03(a) (1) of the Penal Code.

        You observe that the lawyer writes to the grand jury as a body
and not individually to a member and furnishes       a copy of the letter to
the opposing counsel,   the prosecuting    attorney.   It is evident, that the
attorney has not “privately addressed      a representation,    entreaty,
argument or other communication       to&j    public servant” as would be
required to generate a violation of section 36.04(a).

            We therefore are of the opinion that correspondence      by a lawyer
to a grands jury, where the communication        is addressed   to the panel and
a copy is giverrto the prosecuting      attorney and where there is no “threat”
against the grand jury contained in the correspondence,          is not conduct with-
 i’ii’ tli e operation of either section 36.03 or 36.04.      Further,   we know
of no other section of Chapter 36 of the Penal Code which would encompass
the type of communication       discussed herein.

                                SUMMARY

                     Correspondence     of counsel addressed    to a grand
                jury in behalf of a client,   a copy of which is delivered
                to the prosecuting   attorney,   is not prohibited by articles
                36.03(a)(l)  or 36.04(a),    nor by any other section of
                Chapter 36, Texas Penal Code, so long as it contains
                no threat.

                                                     Very   truly yours,




                                                     Attorney   General    of Texas




                                     p.   2292
 The Honorable   A. R.   Schwartz      page 4     (H-508)




APPROVED:




 DAVID   M.   KENDALL,     First    Assistant




I C. ROBERT HEATH,,       Chairman
  Opinion dom&tek              .’

                               .,
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