                               AhUSIIN   11.   -rExaS

   FVIIAL   WIISO~
A-RNEY          GENER*L


                               August 22, 1961

     Honorable Stanley C. Kirk             Opinion No. WW-1115
     District Attorney
     Wichita County Courthouse            Re:       Whether ,a grand jury may
     Wichita Falls, Texas                           interrogate an accused
                                                    witness without the witness'
     Dear Mr. Kirk:                                 counsel being present?
               You have asked this office for an opinion on the follow-
     ing:
                  JMay 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 point
     hold that such a witness does not have a right to have his
     attorney with him in the grand jury room. In re Black, 47 F.,2d
     tl$ZD(;.C.A.2d 1931), United States Y. Priest, '77F.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;on, 77 F:Sup& gl2*tB.D;tio;;-@& . The
     witness Inust 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 com-
     plete 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.,~1929), Browning v. StE;e6r;i2.S.W. 1 (T;;;z;m.,
     1911), Shaw v. State, 165 S.W. 930 (T           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 inde-
pendently, secretly, and in their own way so as not to be in-
fluenced 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 pro-
       ceedings."
As stated in Wickline v. Alvis, supra:
           "Proceedings of the grand jury are not a
       trial but are more in the nat.ureof 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 investi-
       gated 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 through-
out 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.
