85R3597 MAW-D     By: Whitmire S.B. No. 291       A BILL TO BE ENTITLED   AN ACT   relating to the issuance of a writ of attachment.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 2, Code of Criminal Procedure, is   amended by adding Article 2.212 to read as follows:          Art. 2.212.  WRIT OF ATTACHMENT REPORTING. Not later than   the 30th day after the date a writ of attachment is issued in a   district court, statutory county court, or county court, the clerk   of the court shall report to the Texas Judicial Council:                (1)  the date the attachment was issued;                 (2)  whether the attachment was issued in connection   with a grand jury investigation, criminal trial, or other criminal   proceeding;                (3)  the names of the person requesting and the judge   issuing the attachment; and                (4)  the statutory authority under which the attachment   was issued.           SECTION 2.  Article 20.10, Code of Criminal Procedure, is   amended to read as follows:          Art. 20.10.  ATTORNEY OR FOREMAN MAY ISSUE SUMMONS OR   REQUEST ATTACHMENT [PROCESS]. (a) The attorney representing the   state[,] or the foreman, in term time or vacation, may:                (1)  issue a summons [or attachment] for any witness in   the county in which the grand jury is [where they are] sitting; or                (2)  request that the district judge issue an   attachment for any witness in the county in which the grand jury is   sitting.          (b)  The [; which] summons or attachment may require the   witness to appear before the grand jury [them] at a time fixed, or   immediately [forthwith], without stating the matter under   investigation.          SECTION 3.  Article 20.11, Code of Criminal Procedure, is   amended by amending Section 1 and adding Section 1-a to read as   follows:          Sec. 1.  The foreman or the attorney representing the State   may, on [upon] written application to the district court stating   the name and residence of the witness and that the witness's [his]   testimony is believed to be material, cause a subpoena [or an   attachment] to be issued to any county in the State for the [such]   witness, returnable to the grand jury then in session, or to the   next grand jury for the county from which the subpoena was [whence   the same] issued, as the [such] foreman or attorney may desire. The   subpoena may require the witness to appear and produce records and   documents.          Sec. 1-a.  The foreman or the attorney representing the   state may, on written application to the district court stating the   name and residence of the witness and that the witness's testimony   is believed to be material, request that the district judge issue an   attachment for the witness to any county in the state. The [An]   attachment shall command the sheriff or any constable of the county   where the witness resides to serve the witness, and have the witness   [him] before the applicable grand jury as described by Section 1 at   the time and place specified in the attachment [writ].          SECTION 4.  Article 20.12, Code of Criminal Procedure, is   amended to read as follows:          Art. 20.12.  ATTACHMENT IN TERM TIME OR VACATION. The   attorney representing the state or the foreman may request that   [cause] an attachment for a witness [to] be issued, as provided   under [in the preceding] Article 20.11, either in term time or in   vacation.          SECTION 5.  Article 24.11, Code of Criminal Procedure, is   amended to read as follows:          Art. 24.11.  REQUISITES OF AN "ATTACHMENT". An "attachment"   is a writ issued by a [clerk of a court under seal, or by any]   magistrate [, or by the foreman of a grand jury,] in any criminal   action or proceeding authorized by law, commanding a [some] peace   officer to take the body of a witness and bring the witness [him]   before the [such] court in which the action or proceeding is   pending, immediately or [, magistrate or grand jury] on a day   specified in the attachment [named, or forthwith], to testify in   behalf of the State or of the defendant, as applicable [the case may   be]. The attachment [It] shall be dated and signed officially by   the magistrate [officer issuing it].          SECTION 6.  Chapter 24, Code of Criminal Procedure, is   amended by adding Article 24.111 to read as follows:          Art. 24.111.  HEARING REQUIRED BEFORE ISSUANCE OF   ATTACHMENT. (a) Notwithstanding any other law, a writ of   attachment may only be issued to compel the testimony of a witness   in a criminal action or proceeding if the issuing magistrate   determines, after notice to the witness and a hearing in open court,   that the witness is a material witness and issuance of the   attachment is necessary to ensure the testimony of the witness. If   the witness does not reside in the county in which the action or   proceeding is pending, the hearing required by this article must be   held in open court before a magistrate in the witness's county of   residence.          (b)  The issuing magistrate shall appoint an attorney to   represent the witness at the hearing described by Subsection (a).          (c)  This article does not apply to an attachment issued   under Article 24.13 or 49.14.          SECTION 7.  Article 24.12, Code of Criminal Procedure, is   amended to read as follows:          Art. 24.12.  WHEN ATTACHMENT MAY ISSUE. When a witness who   resides in the county of the prosecution has been duly served with a   subpoena to appear and testify in any criminal action or proceeding   fails to so appear, the State or the defendant may request that the   applicable magistrate issue an attachment [shall be entitled to   have an attachment issued forthwith] for the [such] witness.          SECTION 8.  Article 24.14, Code of Criminal Procedure, is   amended to read as follows:          Art. 24.14.  ATTACHMENT FOR RESIDENT WITNESS. (a) When a   witness resides in the county of the prosecution, regardless of    whether the witness [he] has disobeyed a subpoena [or not], either   in term time [term-time] or vacation, [upon the filing of an   affidavit with the clerk by] the defendant or State's counsel may   request that the court issue an attachment for the witness by filing   an affidavit with the clerk of the court stating[,] that the affiant    [he] has good reason to believe, and does believe, that the [such]   witness is a material witness[,] and is about to move out of the   county.          (b)  If an attachment is issued under this article,   regardless of whether the case involves a felony or [the clerk shall   forthwith issue an attachment for such witness; provided, that in]   misdemeanor [cases], when the witness makes oath that the witness   [he] cannot give surety, the officer executing the attachment shall   take the witness's [his] personal bond.          SECTION 9.  Article 24.15, Code of Criminal Procedure, is   amended to read as follows:          Art. 24.15.  TO SECURE ATTENDANCE BEFORE GRAND JURY. At any   time before the first day of any term of the district court, the   clerk, on [upon] application of the State's attorney, shall issue a   subpoena for any witness who resides in the county. If at the time   the [such] application is made, the [such] attorney files a sworn   application that the attorney [he] has good reason to believe and   does believe that the [such] witness is about to move out of the   county, then the district judge may [said clerk shall] issue an   attachment for the [such] witness to be and appear before the [said]   district court on the first day of the term [thereof] to testify as   a witness before the grand jury. Any witness so summoned, or   attached, who fails [shall fail] or refuses [refuse] to obey a   subpoena or attachment, shall be punished by the court by a fine not   exceeding five hundred dollars, to be collected as fines and costs   in other criminal cases.          SECTION 10.  Article 24.22, Code of Criminal Procedure, is   amended to read as follows:          Art. 24.22.  WITNESS FINED AND ATTACHED. (a) If a witness   summoned from outside [without] the county refuses to obey a   subpoena, the witness [he] shall be fined by the court or magistrate   not exceeding five hundred dollars, which fine and judgment shall   be final, unless set aside after due notice to show cause why it   should not be final, which notice may immediately issue, requiring   the defaulting witness to appear at once or at the next term of the   [said] court, in the discretion of the magistrate issuing the   subpoena [judge], to answer for the [such] default.          (b)  The court may cause to be issued at the same time an   attachment for the [said] witness, directed to the proper county,   commanding the officer to whom the attachment [said writ] is   directed to take the [said] witness into custody and have the   witness [him] before the [said] court at the time specified [named]   in the attachment [said writ]; in which case the [such] witness   shall receive no fees, unless it appears to the court that the   [such] disobedience is excusable, when the witness may receive the   same pay as if the witness [he] had not been attached.          (c)  The [Said] fine when made final and all related costs   [thereon] shall be collected in the same manner as in other criminal   cases. The [Said] fine and judgment may be set aside in vacation or   at the time or any subsequent term of the court for good cause   shown, after the witness testifies or has been discharged.          (d)  The following words shall be written or printed on the   face of a [such] subpoena for an out-of-county witness [out-county   witnesses]: "A disobedience of this subpoena is punishable by fine   not exceeding five hundred dollars, to be collected as fines and   costs in other criminal cases."          SECTION 11.  Section 71.034(e), Government Code, is amended   to read as follows:          (e)  In addition to the information described by Subsection   (a), the council shall include in the report a summary of   information provided to the council during the preceding year under   Articles [Article] 2.211 and 2.212, Code of Criminal Procedure.          SECTION 12.  The change in law made by this Act applies only   to a writ of attachment issued on or after the effective date of   this Act. A writ of attachment issued before the effective date of   this Act is governed by the law in effect on the date the writ was   issued, and the former law is continued in effect for that purpose.          SECTION 13.  This Act takes effect September 1, 2017.