¶1concurring.
¶2I take the unusual, but not unprecedented, step of concurring to my own opinion in order to add some further observations. See Vargas v. State, 838 S.W.2d 552, 557-58 (Tex.Crim.App.1992) (Benavides, J., concurring to his own majority opinion).
¶3The unrestricted use of grand jury subpoenas to obtain medical records is a serious threat to privacy. There is almost no limit on what can be obtained without the knowledge or approval of any court, any grand jury, any supervisor in a prosecutor’s office, or the person affected. A prosecutor’s right to snoop is not limited by the seriousness of the crime — Texas grand juries may investigate any crime, including the most minor misdemeanors. Although DWI is not a minor offense, this case is a good example. This grand jury subpoena was issued for a misdemeanor offense. Although Texas law allows grand juries to investigate and indict for misdemeanors, that is rarely done. In Harris County, misdemeanor DWIs are almost never prosecuted by indictment. In this case, appellant was not indicted. Thus, it is unlikely that any grand jury requested this particular subpoena or saw these records. All of this is legal. The law allows any prosecutor, and there are hundreds in Harris County, to issue a grand jury subpoena. Tex.Code Crim.P.Ann. arts. 20.10, 20.11, 24.15 (Vernon 1989). This may be done for any offense subject to indictment, including misdemeanors. Tex.Code Crim.P.Ann. art. 20.03, 20.09 (Vernon 1989); Tex. Const, art. V, § 17; see also Tex.Code Crim.P.Ann. arts. 21.26, 21.27, 21.29, 21.30 (Vernon 1989) (authorizing transfer of indicted cases to lower courts, including justice courts); art. 25.04 (Vernon 1989) (authorizing service of indictment in misdemeanor cases); and art. 12.02 (Vernon 1989) (setting limitations period for indictment for misdemeanors).
¶4Imagine the opportunities for political vendettas, personal revenge, and garden variety bureaucratic abuse of power. If a partisan prosecutor wanted to know if a presidential candidate of the opposite party had cancer, or was cured of it, he or she could subpoena hospital, laboratory, or physicians’ records. If leaders of the executive branch of government wanted to see who leaked the Pentagon Papers, they would not have to burglarize the office of Daniel Ellsberg’s psychiatrist — a friendly prosecutor could simply subpoena the records. If a partisan prosecutor wanted to know whether a political opponent had been treated for mental illness or for a venereal disease, he or she could subpoena the opponent’s medical records. Under our law, there is no requirement that a grand jury even be in session. Tex.Code Crim.PAnn. art. 20.12, 20.13 (Vernon 1989). There is no advance showing required that the material subpoenaed may be relevant to an existing or contemplated investigation, or even that there be an existing or contemplated criminal investigation. Judicial authority over the process is almost totally lacking. I know of no other part of the judicial process more open to abuse.
¶5Narrowly drafted legislation should be enacted to put reasonable limits upon the use of grand jury subpoenas for things as intimate as medical records. Such an act might include the following limitations designed to balance the valued right of personal privacy with the State’s need to freely investigate crime.
¶6First, limit the number of prosecutors in the district attorney’s office who could issue a grand jury subpoena for medical records to the elected district attorney only or to the elected district attorney and one designated *102assistant. Precedent for this very limitation is found in Tex.Code CrimP.Ann. art. 44.-01(d), (i) (Vernon Supp.1993), which allows only the elected district attorney to sign a State’s notice of appeal and specifically prohibits the State from appealing if the notice is signed by any assistant. State v. Muller, 829 S.W.2d 805, 811-12 (Tex.Crim.App.1992).
¶7A second limitation would limit grand jury subpoenas for medical records to instances where the prosecutor and the grand jury foreman have sworn that a grand jury investigation is in progress, or at least contemplated, and that the evidence sought is believed to be material to that investigation. These very procedures are already required to subpoena an out-of-county witness. Tex.Code CRImP.Ann. art. 20.11 (Vernon 1989).
¶8A third limitation would restrict grand jury subpoenas for medical records to investigations of certain designated serious offenses.
¶9A fourth limitation would require some form of notice and right to be heard by a party whose medical records were sought. Exceptions should exist for extraordinary circumstances where speed or secrecy was found to be essential by a district judge after a non-public hearing on a prosecutor’s application for subpoena. Such a provision might provide, for example, that the State must attempt to notify in writing the party whose records are sought at least 20 days before executing the subpoena. If the person notified moves to quash the subpoena, the district judge should quash it unless it meets the three requirements set out above, and, in addition, the judge determines that the public interest in seizing the evidence outweighs the person’s right to privacy. The State could issue and execute the subpoena without notice if authorized to do so by a district judge upon a sworn and sealed showing of exigent circumstances requiring speed or secrecy. If only speed justifies the seizure without notice and there is no need for secrecy to be maintained after the seizure, the State should seal the subpoenaed materials immediately after seizing them, without viewing or copying them, and deposit them under seal in court custody for safe keeping while the person whose medical records were seized is notified and given an opportunity to challenge the subpoena. Very similar procedures have been required by unanimous vote of the Supreme Court of New Jersey. State v. Dyal, 97 N.J. 229, 478 A.2d 390, 396-97 (1984).
¶10I respectfully make these recommendations to our legislators.
¶11HEDGES and BASS, JJ., join in this opinion.