Untitled Texas Attorney General Opinion ( 1968 )

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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