Open Records Decision No. 411
April 11, 1984

	Re:  Whether the names of individuals subpoenaed before a grand jury are 
available to the public under the Open Records Act

Honorable Rene Guerra
Criminal District Attorney
Hidalgo County Courthouse
Edinburg, Texas  78539

Dear Ms. Guerra:

	You have asked whether the names of individuals subpoenaed to appear before a 
grand jury are excepted from required public disclosure under the Open Records Act, 
article 6252-17a, V.T.C.S.  These individuals were subpoenaed to offer testimony 
concerning the disappearance of funds from the office of the Hidalgo County Clerk.  You 
advised us that:

	On December 15, 1983, my office presented to a 139th District 
Court Grand Jury, through the investigator assigned to the case, a 
report on the case investigation to date.  At the grand jury's request, 
instanter grand jury subpoenas were issued for the employees of the 
county clerk's office to appear before the grand jury that afternoon.

	Article 20.10 of the Code of Criminal Procedure provides:

	The attorney representing the state, or the foreman [of the grand 
jury], in term time or vacation, may issue a summons or attachment 
for any witness in the county where they are sitting; which summons 
or attachment may require the witness to appear before them at a 
time fixed, or forthwith, without stating the matter under 
investigation.

	Article 20.13 of the Code of Criminal Procedure provides:

	The bailiff or other officer who receives process to be served 
from a grand jury shall forthwith execute the same and return it to 
the foreman, if the grand jury be in session; and if the grand jury be 
not in session, the process shall be returned to the district clerk.  If 
the process is returned not executed, the return shall state why it was 
not executed.  (Emphasis added).

	When the subpoenas at issue here were prepared and issued, the grand jury was in 
session.  Accordingly, both article 20.10 and article 20.13 applied.  Given the provisions 
of these articles, we conclude that the list of individuals who were subpoenaed must be 
deemed to have been prepared, and the subpoenas to have been issued, by individuals 
who were in effect acting as agents of the grand jury.  The list must, therefore, be 
deemed to have been constructively in the possession of the grand jury when the request 
for it was filed, even though it may have physically been in the possession of the district 
attorney as well as the grand jury.

	Since this list was prepared by individuals acting as agents of the grand jury and 
was constructively in the possession of the grand jury, we conclude that it is not subject 
to required disclosure under the Act.  In our opinion, a grand jury must be considered to 
be a part of the judiciary, at least for purposes of the Open Records Act.  The judiciary is 
not subject to the act.  V.T.C.S. art. 6252-17a, §2(1)(G).

	Since we have resolved your question on this basis, we need not address your 
argument that the report is also excepted from disclosure under sections 3(a)(1), 3(a)(3), 
and 3(a)(8) of the Act.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton