Untitled Texas Attorney General Opinion ( 1965 )

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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. Crim. 604, 95 S.W. 539;
Moody v. State, 57 Tex. Crim. 76, 121 S.W.
1117; Porter V. State, 72 Tex. Crim. 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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