AhUSIIN 11. -rExaS 

FVIIAL WIISO~ 

A-RNEY GENER*L 

August 22, 1961 

Honorable Stanley C. Kirk 

District Attorney 

Wichita County Courthouse 

Wichita Falls, Texas 

Dear Mr. Kirk: 

Opinion No. WW-1115 

Re: Whether ,a grand jury may 

interrogate an accused 

witness without the witness' 

counsel being present? 

ing: 

You have asked this office for an opinion on the followJMay a grand jury interrogate an accused 

witness without the witness' counsel being 

present?" 

There is no Texas authority on this particularquestion. 

However, all other jurisdictions which have ruled on this 

hold that such a witness does not have a right to have his 

point 

attorney with him in the grand jury room. In re Black, 47 F. ,2d 

tl$ZD(;.C.A.2d 1931), United States Y. Priest, '77 F.Supp. 812 

o., 1948) United States v. Central Supply Association, 

~~'::~~~; 241 iN.D.Ohio, 1940) Peovle V. Dale, 179 P.2d 870 

1947) Wickline v.'Alvis 144 N.E.2d 207 (C.A.Ohio, 

19;7),*Unitid Stat& v. Levine. 127 FISuoo. 651 (D.Mass., 1955), 

United States v. Blanl . The 

witness I 

;on, 77 F:Sup& gl2*tB.D;tio;;-@& 

nust rely for any needed protection on his personal 

privilege against self-incrimination to be invoked when the 

occasion arises. In Texas, the established rule that a person 

shall not be compelled to give~evidence against himself in a 

criminal prosecution may be invoked by a witness called to 

testify before a grand jury unless he has been guaranteed complete immunity from prosecution in giving such testimony or 

unless he has waived his privilege by appearing voluntarily or 

by consenting to be interrogated. Fx carte Smelley, 21 S.W.2d 

299 (Tex.Crim.,~ 

1911), Shaw v. State, 165 S.W. 930 (T 

1929), Browning v. StE;e6r;i2.S.W. 1 (T;;;z;m., 

1914). 

the witness will be held to have waived'his &vilege, however, 

it must be shown that he was duly cautioned as to his rights. 

Allen v. State, 188 S.Wb 979 (Tex.Crim., 1916), Simmons v. State, 

184 S.W. 226 (Tex.Crim., 1916). 
Honorable Stanley C. Kirk, Page 2 (WW-1115) 

The reason and theory behind the holding by the courts 

of various jurisdictions is that the grand jury is a secret 

proceeding which meets, receives and sifts evidence independently, secretly, and in their own way so as not to be influenced or swayed by passions or improper motives. The accused 

witness certainly has no right to appear before the grand jury 

either personally or by counsel. In United State v. Levine, 

supra, the court said: 

"Defendant's right to the assistance of 

counsel accrues with the returning of the 

indictments against him. He is not entitled 

to counsel at the grand jury stage of the proceedings." 

As stated in Wickline v. Alvis, supra: 

"Proceedings of the grand jury are not a 

trial but are more in the nat.ure of an inquest. 

There are no parties, and no defendant has a 

right to appear before the grand jury . . . and 

:~:;a no right to take his attorney along with 

In People v. Dale, supra, it was held that: 

"It is clear that one who is being investigated by a grand jury is not entitled to be 

represented by counsel before that body." 

The State Grand Jury Hand Book prepared by the American 

Bar Association was printed in its final form only after ,a copy 

of it had been "placed in the hands of every State judge throughout the United States." (Preface) The Hand Book states: 

"Finally, bear in mind that neither a 

defendant nor an ordinary witness, when 

appearing before a Grand Jury, is entitled 

to have his counsel present in the Grand 

Jury Room. To do so would be unlawful." 

To answer your inquiry, a grand jury may interrogate an 

accused witness without the witness' counsel being present. This 

agrees with your view of the law on this subject. 
Honorable Stanley C. Kirk, Page 3, (WW-1115) 

SUMMARY 

A grand jury may interrogate an accused 

witness without the witness' counsel being 

present. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Glenn R. Brown 

Assistant Attorney General 

GRB:ca 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Ben Harrison 

Leon Pesek 

Ralph Rash 

John Reeves 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.