                        OFFICE    OF THE   ATTORNEY     GENERAL   OF TEXAS
                                               AUSTIN


O‘**LD     c. MANIl
 . ..r.n    ..“...L                                           February 10, 1939


                      Hon. Wm. W. Allen
                      County Attorney
                      Lavaoa County
                      Hallett8ville, Texas
                      Dear Sir:
    .




                                                               s reoeipt or your
                                                               quest 8n opinion
                      a8 to whether or not                     Article lk of the
                      COll8titUtiOn                           avPfu1 for a deputy
                      8heriff   who 1‘                        lary lrom the oounty
                      ,to 8er~e and                           as a balllrf to the




                            help you Cod. ’
                                 “Art. 367b. &Iilifs8 appOinted by D18-
                            trlot Attorney
                                      The Dletrlot Atforney may appoint
                            one or more bailiffs to attend upon the Grand
                            Jury and at the time OS the appointment the
         Hon.   Wm. W. Allen,   February 10, 1939, Page 2



                Court ahall edmlnlater to eaoh OS thorn the
                following oath: 'You 8014mn1y 8wear that
                you will ralthrully and lmpartlally perform
                all the dutlee oS balllff of the Grand Jury,
                and that you ~111 keep eeoret   the prooeed-
    1.          lngs OS the Grand Jury, 80 help you God.’
                Said bailiff8 shall be paid the sum and in
                the manner now provided by law.*

                   The oonpensatlon payable to     the balllSS 18 pro-
         vided for in Aatlole 1058, a8 amended     by the Aots OS
         1935, 44th Legislature, oh. 192 and it     will be noted
         that this provision underwent several     amendment8 prior
         to the 44th hgi8latkW4.
                   Prior to the amendment by the Aote OS 1925,
         39th Legislature, said provlslons in sUb8tantl8lly the
         8ame language were lnoorporated under Artlole 1161, Code
         OS Criminal Prooedure, adopted 1911, with the pO88lbl4
.        exoeptlon OS expressly provldlng therein that the deputy
         8herlSS shall not receive pay as ballltf. The study OS
         former Artiole 1161 and subsequent amendmen~dl8OlO848
         no mention OS any CO!npen8atiOn paid to the sherlri, hi8
         deputlee or oonstablee.
                   In 1917, Hon. C. yi'.Taylor, former Assistant
         Attorney General OS Texa8, wrote a conSer4noe opinion,
         Ko. 1740, in whloh it was held that the duties OS the
         offloe OS sheriff and his'd4pUti48,   were inoompatible
         with those OS the oifioe OS bailiff with the Grand Jury.
         It was pointed out in eald. opinion that under the lan-
         guage OS said Article@ 417 and‘419 (substantially the
                                   les 307-.r.@.~-.ze.6CCode
         same as our present 4r4Lc-,---                   OS Crlmln-
         al Prooedure, 1925 revised requiring each ballifS to
         take the oath prescribed and obey in8truotions of the
         foreman OS the Grand Jury, the oSSlc4 OS ballifS v'a8
         suoh, under the law, as would oome within the prOVi8iOn8
         oS Article 16, Sec. 40 OS the Constltutlon OS .Texas,
         prohlbltlng a person Srom holding or exerolslng at the
         88me time more than one olvll OfSloe OS emolument, ex-
         oept that of Justioe CS the Peaoe, County Comml88loner,
         Notary Pub110 and Post Xaster and suoh military or re-
         served oifioers named therein. The language ueed in the
.   .




        Hon. Wm. 71. Allen, February 10, 1939, Page 3


        varfoua.emendmenta subsequently would not prevent the
        applloation of this opinion to the present statutes
        applioable.
                  We, there? ore, respectfully advise that it
        is the opinion oS.thls Department thet the deputy sher-
        iff would not be authorized to serve and aooept pay a8
        balllrr to the Grand Jury.
                                          Very truly yours




                                                        A8818tant
        .WmK:AW

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