             THE   ATTORNEY    GENERAL
                      OF TEXAS


                         December 18, 1989



Honorable Kent A. Caperton      Opinion   NO.   JM-1119
Chairman
Finance Committee               Re:   Effect and authority of
Texas State Senate              a grand jury recommendation
P. 0. Box 12068                 regarding a county's use of
Austin, Texas   78711           night depositories  (RQ-1859)

Dear Senator Caperton:

     You ask about the effect of a grand jury recommendation
relative to the tax assessor-collector's use of a bank's
night depository.  You also ask about the liability for the
money once it has been deposited.

     Article 20.09 of the Code of Criminal Procedure      sets
forth the "duties of the grand jury," as follows:

           The grand jury shall inquire into all
        offenses liable to indictment of which any
        member may have knowledge, or of which they
        shall be informed by the attorney     repre-
        senting the State, or any other credible
        person.

     Article 20.19 of the Code of Criminal Procedure  pro-
vides for voting on the presentment  of an indictment   by
members of the grand jury voting after hearing testimony.
Article 20.19 states:

          After all the testimony which is acces-
       sible to the grand jury shall have been given
       in respect to any criminal accusation,    the
       vote shall be taken as to the presentment  of
       an indictment, and if nine members concur  in
       finding the bill, the foreman shall make a
       memorandum of the same with such data as will
       enable the attorney who represents the State
       to write the indictment.




                               P. 5885
Honorable Kent A. Caperton - Page 2    (JM-1119)




     Article  20.21 of the Code of Criminal    Procedure
addresses the matter of the grand jury's report to the
court. Article 20.21 states:

          When the indictment  is ready to be pre-
       sented, the grand jury shall go through their
       foreman, and deliver the indictment to the
       judge or clerk of the court. At least nine
       members of the grand jury must be present  on
       such occasion.

     Attorney General Opinion M-1171 (1972) concluded that a
grand jury may only investigate   alleged criminal  offenses
and may only report as to indictments returned or rejected.
&B Rich v. Eason, 180 S.W. 303 (Tex. Civ. App. - Beaumont
1915, no writ).

     A law review article, comment, Grand Jurv Renorts:   An
Examination of the Law in Texas and Other Jurisdictions,   7
St. Mary's L.J. 374 (1975), recognized that grand juries  in
Texas over the years have issued numerous reports   relating
to matters of public interest as well as those relating   to
misconduct of public officials.  Grand juries in Texas, like
the vast majority of other states, lack constitutional   and
statutory authority  to make reports and recommendations.
&    The comment notes that the propriety of such action has
long been the source of discussion, pro and con, even under
common law where grand jury reports were not recognized.
&   at 378.

     You do not ask nor do we address the matter of the
propriety  of    grand jury    reports or   recommendations.
However, we conclude that a grand jury recommendation
regarding the tax assessor-collector's use of a bank's night
depository lacks the statutory underpinnings to render same
a binding order.

     You also ask about the liability for the money once it
has been deposited.  Absent the factual context in which the
transaction arises we are unable to answer your question.
Further, it appears from the information you have furnished
us that this question is prompted by an indictment pending
against an employee in the tax assessor-collector's  office.
It is a long standing policy of this office not to answer
questions about which litigation is pending.




                             P* 5886
Honorable Kent A. Caperton - Page 3     (JM-1119)




                       SUMMARY

           A grand jury recommendation    relative to
        the use of a bank's night depository is not
        binding on the tax assessor-collector.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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