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     Gerald C. Mann


         Honorable Paul G. Peurifoy
         Assistant Distriet.Attorney
         Dallas County
         Dallas, Texas
         Dear Sir:                       Opinion No. O-2509
                                         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.
                    Artictle367, Code   or   Criminal Procedure or Texas,
          1925, reads as follows:,
                    "The~,eeurtmay .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
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
        distri&i    called and known- by number, or whether
        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 or any named county or
        court.
             "Sec. 8. All laws and parts of laws in con-
        fliot,herewith,.asehereby 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. 'ibeact
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
Hon. Paul G. PC     iroy, Pege 3
                  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.'passedan
act applicable to the appointment of grand jury 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,..theJudge 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 or 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. 3. 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..theCriminal 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
      Hon. Paul G. Pi    ,iroy,   Page 4
      power to appoint grand jm;t~~f~~ffs     in ell counties in this
      State not havinR a oounts           x (with the eraeption of ooun-
      ties having a population of'~nctless than 290,000 nor more then
      320,000, wherein such power is iven exclusively to the judges
      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'sin said
      counties with the exception of oounties within the population
      brackets of 290,000 and 320,000 inhabitants.
                3. Dallas County has no'&&&'att&%&       andtherefore
      the power to appoint.grand jury 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, 1940
      h/&r~~;s~er~
      ATTORNEY ~GY!iNERAL
      WJF:AW:jrb
/-r
                                   APPROVED OPINION COMMITTEE
                                        BYBWB, Ohair-n
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