Untitled Texas Attorney General Opinion

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 APFBovED: ATTO3??3Y GFXWAL OF TiXAS - Y Yf