    OFFICE   OF THE ATTORNEY       GENERAL   OF TEXAS
                          AUSTIN




Honorable Burl Brittain
County Auditor
San Patricio County
San Antonio, Texas
Dear Sir:




          Your request for                   the folio
                                                     d4 ng
questions:

                                         by the court,
    entitled to a                       ewe or.mileage
    See over ana
                                         0119sAnnotated
                                         or Article 1058,
                                        xas, 1925, as
                                        ounty, Texas?"
                                y considered by this Depart-
                                lation of San Patricia County
                             last preceding Federal census.
                                           respectfully call
                                           a, Vernon's Anno-
                    al Procedure of Texas has no official
                    ion as a law of Texas. This Article is
                    icle 1058, Code of Criminal Procedure,
Ronorable Burl Brittain, Page 2


1925, These articles are identical and are derived from
Acts 1925, 39th Legislature, Chapter 98, p. 273. Article
1058, code of Criminal Procedure is carried ana placed in
the 1925 Code of Criminal Procedure. There is no Article
267a, Coae of Criminal Procedure to be found in said Code,
Vernon's Article 367a, referred to above, shows on its
fact that it was inserted by its compiler. This insertion
was clearly erroneous ana wholly tiecessary.
          Article 1058, Code of Criminal Procedure of Texas,
1925, as amended by Acts 1935, 44th Legislature of Texas,
p. 476, Ch. 192, reads as follows:
          "BE IT ENACTm   BY THE LEGISLATUHE OF 'IKESTATE
     OF TEXAS:
         "Section 1. Thet Article 1058 under Section
    1, Chapter 98, Page 273, Acts of 1929, shown as
    Article 1058 of the Code of Criminal Procedure, 1925
    Revision, as amende,dby Acts of 1927, Fortieth Leg&
    islature, Page 320, Chapter 217, Section 1, as fur-
    ther emended by Acts of 1927, Fortieth Legislature,
    First Called Session, Page 154, Chapter 54, Section
    1, as further amended by Acts of 1930, Forty-first
    Legislature, Fourth Called Session, Page 93, Chapter
    32, Section 1, and further amended by Acts of 1931,
    Forty-second Legislature, Page 222, Chapter 130,
    Section 1, be and the same is hereby amended so as
    to read as follows:
         "Section 1, Article 1058. Each walking grand
  _ jury bailiff appointed as such bailiff shall receive
    as cornensation for his services the sum of Four Dol-
    lars (i4.,00)for each day he may serve and each riding
    grand jury bailiff appointed in scunties of a popula-
    tion of one hundred and fifty thousand (150,000) or
    more, according tothe last Federal Census, shall re-
    ceive as compensation for his services the sum of Six
    Dollars ($6.00) for each day he may serve, and shall
    further receive One Dollar ($1.00) per day for automo-
    bile expense and upkeep; provided, however, that not
    more than ten (10) such bailiffs shall be employed at
    any one time, and providing further that the Sheriff
Ronorable Burl Brittain, F%ige3


    or Deputy Sheriff attending any County or Dis-
    trict Court in counties of over three hundred and
    fifty thousand (350,000) according to the last
    preceding Federal Census shall be paid the sum of
    Six Dollars ($6.00) for each day the Sheriff or
    Deputy Sheriff shall serve in any of such said
    courts as bailiffs, and one dollar ($1.00) per day
    as automobile expense and upkeep for each day he
    may use said automobile.
         "?The compensation herein provided for shall
    be paid from the General oz?Jury Fund of the county
    affected, as may be determined by the Commissioners
    Court thereof, upon sworn accounts showing the Court
    in which or the Grand Jury for which, said Bailiff,
    Sheriff, or Deputy Sheriff serves, with a statement
    showing the dates on which the service was performed
    and the amounts due. No such claim shall be paid un-
    til approved by the foreman of the Grand Jury or the
    Judge of the Court 'for which the service was performed,
    and said claim shall be presented to the Commissioners
    Court or to the County Auditor in counties provided by
    law for so much thereof as may be found due, and no
    warrant in payment of the'amount due shall be paid un-
    less countersigned by the County Auditor, if any.*
         Vection 2. The fact that under the existing law
    there is confusion in the amount paid Bailiffs, and
    Deputy Sheriffs creates an emergency and an imperative
    public necessity requiring that the Constitutional
    Rule providing that bills be read on three several days
  . be suspended, and said Rule is hereby suspended, and
    that this bill shall take effect and be in force from
    and after its passage, and it is so enacted."
          Opinion No. O-1124 of this Department, written by
Hon. Ardell Williams Assistant Attorney General, holds that
grand jury bailiffs in counties with a population of less than
150,000 inhabitants are entitled to $4.00 per day, but are not
entitled to mileage, traveling expense or any other compensa-
tion for their services. We enclose herewith a copy of Opinion
No. O-3124 which contains a full discussion of saia matter.
Honorable Burl Brittain, Page 4


          In answer to your first question you are respect-
fully advised that it is the opihion of this Department that
the same should be answered in the negative and it is so
answered,
         In answer to your second question you are respect-
fully advised that it is the opEnion of this Depertment that
the provisions of Article 1058, Code of Criminal Procedure,.
of Texas, as amended, supra, which are applicable to counties
having a population of less than 150,000 inhabitants acaora-
ing to the last preceding Federal census, apply.to San
Patricia County, Texas.
                                       Yours very truly
                                  ATT?RNEY GENERAL OF TEXAS


                                  BY
                                            Wm. J. Fanning
                                                 Assistant
WJF:BBB
APPROVED FEB 29, 1940
(81 Gerald C. Mann
AT'NRNEYGEBERAL OF TEXAS



                                              APPROVED
                                   opinion committee
                                             BP BWB
                                             chZi?iZn
