AhUSIIN 11. -rExaS

FVIIAL WIISO~ A-RNEY GENER*L August 22, 1961

Honorable Stanley C. Kirk DistrictAttorney Wichita County Courthouse Wichita Falls, Texas Dear Mr. Kirk: OpinionNo. WW-1115 Re: Whether ,agrand jurymay interrogatean accused witness without the witness' counselbeing present? ing: You have asked this office for an opinion on the followJMay a grand jury interrogatean accused witness without the witness' counselbeing present?" There is no Texas authority on this particularquestion. However, all other jurisdictionswhich have ruled on this hold that such a witness does not have a right to have his point attorneywith him in the grand jury room. In re Black, 47 F. ,2d tl$ZD(;.C.A.2d1931),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;;-@&

nustrely for any needed protection on his personal privilege against self-incriminationto be invokedwhen the occasion arises. In Texas, the establishedrule that a person shall not be compelled to give~evidenceagainst himself in a criminalprosecutionmay be invokedby 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 privilegeby appearing voluntarily or by consentingto 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 cautionedas 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 proceedingwhich meets, receives and sifts evidence independently, secretly, and in their own way so as not to be influenced or swayed by passions or impropermotives. The accused witness certainlyhas no right to appearbefore the grand jury eitherpersonally or by counsel. In United State v. Levine, supra, the court said:

"Defendant'sright to the assistance of counsel accrueswith the returning of the indictmentsagainst him. He is not entitled to counsel at the grand jury stage of the proceedings." As stated in Wickline v. Alvis, supra:

"Proceedingsof the grand jury are not a trial but are more in the nat.ureof an inquest. There are no parties, and no defendanthas a right to appearbefore 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 representedby counselbefore that body." The State Grand Jury Hand Book preparedby the American Bar Associationwas printed in its final form only after ,acopy of it had been "placed in the hands of every State judge throughout the United States." (Preface) The Hand Book states:

"Finally,bear inmind that neither a defendant nor an ordinarywitness, when appearing before a Grand Jury, is entitled to have his counselpresent in the Grand Jury Room. To do so would be unlawful." To answeryour inquiry, a grand jurymay interrogatean accusedwitness without the witness' counselbeing present. This agrees with your view of the law on this subject.Honorable Stanley C. Kirk, Page 3, (WW-1115)

SUMMARY A grand jurymay interrogatean accused witness without the witness' counselbeing present. Yours very truly, WILL WILSON Attorney General of Texas

Glenn R. Brown AssistantAttorney 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.