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
P. 5887