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Section 71.04 is the immunity provision for organized criminal activity cases. It allows the State to compel testimony from a participant — and it defines, importantly, exactly how far the protection extends.

What the Statute Says

(a) A party to an offense under this chapter may be required to furnish evidence or testify about the offense.

(b) No evidence or testimony required to be furnished under the provisions of this section nor any information directly or indirectly derived from such evidence or testimony may be used against the witness in any criminal case, except a prosecution for aggravated perjury or contempt.

Use Immunity, Not Transactional Immunity

This is the distinction that matters most, and it is widely misunderstood:

What it protects
Transactional immunityThe witness cannot be prosecuted at all for the transaction testified about
Use and derivative-use immunity (Section 71.04)The compelled testimony, and anything derived from it, cannot be used — but the witness can still be prosecuted from independent evidence

A person who testifies under this section is not safe from prosecution. They are protected only from the State's use of what they said and what it led to.

The Independent-Source Burden

If the State later prosecutes an immunized witness, it carries a heavy burden — under the framework associated with Kastigar v. United States — to show that every item of its evidence came from a source wholly independent of the compelled testimony. That includes investigative leads, witnesses identified as a result, and documents located because of it.

In practice this means the prosecution team must be walled off, the pre-testimony evidence must be documented and sealed, and any later case is subject to a taint hearing. It is a genuine and frequently decisive protection — but it only works if it is litigated.

The Two Exceptions

The immunity does not extend to a prosecution for:

  • Aggravated perjury — a witness who lies under the grant can be prosecuted for that; and
  • Contempt — a witness who refuses to answer after immunity is conferred.

Those exceptions are the leverage that makes compelled testimony work, and they are the reason a witness needs counsel before the first question.

If You Have Been Subpoenaed

Get your own lawyer — not the defendants' lawyer

A witness in an organized criminal activity investigation has interests that diverge from every other participant and from the State. You need counsel who represents only you, to evaluate the scope of the immunity offered, to negotiate its terms in writing, to prepare you so that an aggravated perjury charge never becomes available, and to preserve the record for any later taint litigation.

Related

Charged in Harris County?

Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.

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Frequently Asked Questions


What does Texas Penal Code 71.04 provide?
A party to an offense under Chapter 71 may be required to furnish evidence or testify about the offense. No evidence or testimony so required, and no information directly or indirectly derived from it, may be used against the witness in a criminal case — except a prosecution for aggravated perjury or contempt.
Is this the same as full immunity?
No. It is use and derivative-use immunity, not transactional immunity. The witness can still be prosecuted for the offense, provided the State proves its case from sources wholly independent of the compelled testimony.
Can I refuse to testify?
Once immunity is conferred, the Fifth Amendment privilege is supplanted to the extent of the immunity, and refusing can result in contempt. Whether the immunity conferred is adequate is a question for counsel before you answer anything.
What is the Kastigar problem?
If a witness is later prosecuted, the State bears the burden of proving that all of its evidence came from legitimate sources independent of the compelled testimony. That is a heavy burden and it is the central protection for the witness.
Should I get my own lawyer?
Yes, always. A witness compelled to testify needs counsel independent of the defendants and independent of the State — the scope of the immunity, the risk of an aggravated perjury charge, and the later taint litigation all require it.

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