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    Honorable Neal E. Birmingham   Opinion No. C-500
    Criminal District Attorney
    Cam County                     Re: Does the presence of the
    Linden, Texas                  County Sheriff in the Grand
                                   Jury Room during Interrogation
                                   of witnesses, but not during
                                   deliberation,create any error
                                   in the Grand Jury proceedings
                                   that would Invalidate the re-
                                   turned indictmentsand related
    Dear Mr. Birmingham:           question.
             Your letter requestingthe opinion of this office reads
    fn part as follows:
               "Does the presence of the County Sheriff
            in the Grand Jury Room during interrogation
            of witnesses, but not during deliberation,
            create any error in the Grand Jury proceed-
            ings that could invalidatethe indictments
            returned?
               "We rarely use a Court Reporter or steno-
            grapher; however, would the presence of a
            Court Reporter or stenographerin the Grand
            Jury Room for the sole purpose of taking down
            the testimony of witnesses Invalidatean in-
            dictment returned by the Grand Jury, assuming
            that she was present during interrogationonly
            and not during the deliberation;and further
            assuming that she was sworn by the foreman in.
            a manner similar to a witness and not by the
            Court as a bailiff?"
             Article 3’74, Vernon's Annotated Code of Criminal Pro-
    cedure, provides:
               "The deliberationsof the grand jury shall
            be secret. Any grand juror or bailiff who
            divulges anything transpiringbefore them in
            the course of their official duties shall be
            'liableto a fine as for contempt of the court,
            not exceeding one hundred dollars, and to im-
            prisonment not exceeding five days."
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Honorable Heal E. BlrmI.ngham,
                             page 2 (C-500)


        Article 20.02 of Senate Bill No. 107 establishingand
adopting a new Code of Criminal Procedurefor the State of ,
Texas to become effective January 1, 1966, provides:

           “Deliberationssecret. The deliberations
        of the grand jury shall be 8ecret. Any grand
        juror or bailiff who divulges anything trans-
        piring before them in the course of their of-
        flclal duties shall be liable to a fine a8 for
        contempt of the court, not exceeding five
        hundred dollara, and to imprisonmentnot ex-
        ceeding thirty days.”
        Where a statute 16 reenacted without any substantial
change in Its verbage, it ie presumed that the Legislature
intended it to be given the same conetz%tlon ae that prevlous-
ly given the or1 inal Act by the Courta. Cunningham v. Cunning-
&,   40 S.W.W 4i?; Lane v. Ross, 249 S.w.23 591.
        The Court of Criminal Appeals In the case of Tinker v.
State, 253 S.W. 531, consideredthe question of whether or not
-presence    of a sheriff in the grand Jury room while a wlt-
nesa was being Interrogatedconstitutedgrounds to quash the
returned indictment. The Court therein held:
           !I     It was shown and admitted that
        becaus; of the timidity and youth of the
        alleged Injured female ahe was accompanied
        into the grand jury room by the sheriff of
        the county in which she lived, who was pre-
        sent while she was being questioned. It was
        also shown without contradictionthat no one
        was present with the grand jury when they
        were deliberatingupon the question of the
        finding of the Indictmentherein. This court
        has held, in regard to the presence of per-
        sons acting in various capacitiesduring the
        Investigationof crime, that such presence,
        extending no further than while testimonywas
        being had before the grand Jury, would not
        come within the forbiddanceof such presence
        while the said grand jury was deliberating
        upon the finding of the indictment. McElroy
        v. State, 49 Tex.Cr.R. 604, 95 S.W. 539;
        Moody v. State, 57 Tex.Cr.R. 76, 121 S.W.
        1117; Porter V. State, 72 Tex.Cr.R. 71, 160
                    See other case8 cited in Branch's
        fki: i?:‘, 486. . . .”

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    Honorable Real~E. Birmingham,page 3 (C-500)


             The presence of a stenographeror a court reporter
    for the purpose of,taklng testimony for the prosecuting of-
    ficer or the grand jury la recognizedas proper and Is not
    a sufficientground for setting aside an Indictment,without
    some showing of prejudice to the accutied. To this effect
    see: Sims v. State, 45 S.W. 705; Porter v. State, 160 S.W.
    1194; Tinker v. state, 253 S.W. 531.
             It Is, therefore, the opinion of this office that
    the presence of the County Sheriff, Court Reporter, or steno-
    grapher, while the grand jury is Interrogatingwitnesses In
    the grand jury room will not invalidatean indictment so as
    to be a ground for quashing,thereturned Indictment,unless
    said persons are proven present when the grand jury Is actual-
    ly deliberatingupon the Indictment.                        11%

             In your letter of request you have Informed us that
    these questions are not Involved in any pending prosecutions.
    Therefore you are advised that our opinion, as expressed here-
    in, is specificallyintended to apply to future investigations
    before the grand jury and in no way applies to prosecutions
    which may be presently pending before the courts.


            The pre6enc.eof the County Sheriff, Court
            Reporter or stenographerin the Grand Jury
            Room during Interrogationof witnesses, but
            not during deliberationdoes not create any
            error in the Grand Jury proceedings that
            would invalidate the returned Indictments.
                               Very truly yours,
                               WAGGORRR CARR
                               Attorney General of Texas


                               By:
                                     Asslstant'AttorneyGeneral
    DHC/ass/br




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Honorable Neal E. BInnIngham,page 4 (C-500)


APPROVED:
OPINION COMMITTEE
W. 0. SHULTZ, Chairman
Dean Arrlngton
Ralph Rash
Roger Tyler
Sam Kelley
APPROVED FOP THE ATTORMEX GENERAL
BY: T. B. Wright




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