Case Information

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,-

Gerald C. Mann

Honorable Paul G. Peurifoy

Assistant Distriet.Attorney

Dallas County

Dallas, Texas Opinion No. O-2509

Dear Sir:

Re: Appointment of Grand Jury Bailire

Your request for opinion upon the following ques- tion:

"In oounties having a population of more than 355,000 should the grand jury bailiffs be appointed by the oriminal district judges or by the distriat attorney?"

has been received and carefilly considered by this department.

Artictle 367, Code Criminal Procedure or Texas, 1925, reads as follows:,

"The~,eeurt may .eppoiiit one er more bailirfs to attend upon the grand jury, and, at the time of the appointment, the following oath shall be administered to each of them by the court, or under its direction:

W'You solmenly'swear that you will faithfully and impartially perform all the duties or bailifr or the grand jury, and that you will keep secret the proceed- ings of the grand jury, so help you Go~.'~ Article 367b, Vernon's Texas Annotated code of Crimin- al Procedure, reads as rdi0ws:

"The Distriat Attorney may appoint one or more bailiffs to attend upon the Grand Jury and at the time of the appointment the Court shall administer to each of them the following oath: 'You solemn- ly swear that you will faithfully and impartially perform all the duties of bailiff of the Grand Sury, and that you will keep secret the proaeed- ings of the Grand Jury, so help you God.' SE&d bailiffs shall be paid the sum and in the manner now provided by law."

The above quoted article is Section 6 of Senate Bill No. 78, Regular Session, 40th Legislature of Texas, chapter *2 Eon. Paul G. F$ rifoy, Page 2

67, p. 93, Acts 1927. We quote from Senate Bill No. 78, supra, as r0iiOws:

” . . . .

*;Sec.6. The district attorney may appoint one or,more bailiffs to attend upon the grand jury and at the time of the appointment the court shall administer to eaah of them the following oath: 'You solemnly swear that you will raith- fully end impertially perform all the duties or bailiff of the grand jury, end that you will keep secret the proceedings of the grand jury, so help you God.' Said bailiffs shell be paid the sum and in the manner now provided by law. Veo.7. The provisions of this Aot shell

apply.$o every diStriot attorney within the &ate of,Texas. within counties of a population of ,more than 150.000 inhebitants and having a oounty attor- z, to be determined as above provided, whether the said district attorney be of' and for 8 jndigial and known- by number, or whether distri&i called called and known as a criminal judicial district, or whether of end fer any court called or known as a criminal district oourt; and whether suoh disi triot attorney be aalled and known as a distrlat attorney or a criminal district attorney, or a oriminal district attorney any named county or court.

"Sec. 8. All laws and parts of laws in con- fliot,herewith,.ase hereby repealed, whether rererr- ed to herein er mot, provided, however, thet this Aot is not intended and shall not be considered or construed as repeeling or affecting Chapter 121, page 315, Acts of the Thirty-fifth Legislature, Re- gular Session, and Chapter 167 of the Acts of the Regular Session of the Thirty-fifth Legisleture of the State of Texas, appearing on page 378 thereof, and provided further that nothing herein is intend- ed to nor shall be considered or construed to re- peal or in anywise arrect Chapter 21 of the Acts of the 38th Legislature passed at the Third Called Session thereof, but shall be cumulative thereof, and providing further, shell be oumulative of all laws uot in confliot with the provisions hereof,~ nor shell it be construed as repealing any law re-. parding grand jury bailiffs. except the appointment thereof by the oourt. which is hereby expressly repealed...." (Undersooring ours)

Thus, we see that the Legislature by said act trans- ferred the power from the district judges to the district attorneys, to appoint grand jury bailiffs in oounties having a county attorney where there was a population in excess Or one hundred and fifty thousand (150,000) inhabitants. 'ibe act was not applicable to oounties not having a county attorney. Hence, we see that upon the passage-of this Act in 1927, ~the district judges had the right to appoint grand jury bailiffs in each of the counties of the State in which there was no *3 Hon. Paul G. PC iroy, Pege The distriat judges then had the right te

Ury bailiffs in ell oounties in the State hSv- ing a county ettornee where the population of the cpunty G not in excess of one hundred and fifty thousand (150,000).

In 1937, the 45th Legislature of Texas.'passed an act applicable to the appointment of grand bailiffs, Acts 1937, 45th Legislature of Texas, Ch. 1.66, p. 328, codi- fied as Article 367c, Vernon's Texas Annotated Code or Cri&nal Procedure, known as Senate Bill.No. 454, and reads in part as r0ii0wS :

"E!% IT ENACTED BY THE LEGISLATURE OF THE STATE OF -TEXAS: ~~ .-

"Section 1. Any county in this State having a population of not less then two hundred and nine- ty thousand (290,000) inhabitants and not more than three hundred and twenty thousand (320,000) inhabi- tants according to the United State's Census 0riq30 and all future Federal Qensus,..the Judge of the Criminal District Court-in such county may appoint grand jury bailiffs not exceeding seven (7) whose compensation shall be Twenty-four Hundred ($2400.00) Dollars per annum, each; said compensationto be payable in twelve (12) equal monthly installments. f~ Bailiffs thus appointed are subject to removal for cause, or without cause, at the will of the Judge of the Criminal District Court.

*Wee. 2. In addition to the salary herein pro- vided-for grand jury bailiffs serving the Criminal District Court in such county shall eaoh be allowed the sum of Twenty-five ($25.00) Dollars per month for repair, maintenance, at&traveling expenses an automobile used by each of said grand jury bailiffs while on official business in the investigation of orime and the service of prooess. Seid allowances together with the s&erg of eaah of-said grand jury bailiffs to be paid monthly by said county out of the Jury Funds of said county.

"Sec. All laws and parts of laws in so far

as they oonfliot with this Aot are hereby repealed. " .a..

*Thus we see that after the passage Or this act in all counties having a population of not less then two hundred and ninety thousand (29O,OOO) inhabitants and not more then three hundred and twenty thousand (320,OO) inhabitants accord- ing to the United State's Census of' 1930 and all future Feder- al Census, the Judge of..the Criminal District Court in such county was given the power to appointgranijury bailiffs. This power applied toaounties having county attorneys as well as to counties not having county attorneys.

You are therefore respectfully advised that it is the opinion of this department that:

1. Judges of the district courts have the exalusive *4 Hon. Paul G. Pi ,iroy, Page 4

power to appoint grand in ell counties in this jm;t~~f~~ffs x (with the eraeption of ooun- State not havinR a oounts ties having a population of'~nct less than 290,000 nor more then iven exclusively to the judges 320,000, wherein such power is of the criminal distriot court. 7

2. Distriot Attorneys~in counties having e '&6&!&y attorney and having a population in exoess of 150,000 inhabi- tents have the power to appoint grend jury bailiff's in said counties with the exception of oounties within the population brackets of 290,000 and 320,000 inhabitants. Dallas County has no'&&&'att&%& andtherefore

the power to appoint.grand bailiffs is in the oourt and not in the Distriot Attorney of said oounty.

Yours very truly ATTORNEY GENERAL OF TEXAS By /s/ Wm. J. Finni& Km0 J. Fanning Assistant APPROVED JULY 12,

h/&r~~;s~er~

ATTORNEY ~GY!iNERAL

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APPROVED OPINION COMMITTEE BYBWB, Ohair-n ,.I,,.