### THE ATTORNEY GENERAL OF TEXAS

December 18, 1989

Honorable KentA. Caperton Opinion NO. JM-1119 Chairman Finance Committee Re: Effect and authority of Texas State Senate agrand 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 ofagrand 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 ithasbeen 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 ofwhich any member may have knowledge, or ofwhich they shall be informed by the attorney representing the State, or any other credible person. Article 20.19 of the Code of Criminal Procedure provides for voting on thepresentment of an indictment by members of the grand juryvoting after hearing testimony. Article 20.19 states:

After all the testimony which is accessible to the grand jury shall have been given inrespect to any criminal accusation, the vote shall be taken as to thepresentment of an indictment, and ifninemembers concur in finding the bill, the foreman shallmake a memorandum of the samewith such data aswill enable the attorney who represents the State towrite the indictment.

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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 tobe presented, 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 jurymust bepresent on such occasion. Attorney General Opinion M-1171 (1972)concluded that a grand jurymay only investigate alleged criminal offenses andmay only report as to indictments returned or rejected. &B Rich v. Eason, 180 S.W. 303 (Tex.Civ.App. - Beaumont 1915,nowrit).
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 tomatters ofpublic interest aswell as those relating to misconduct ofpublic officials. Grand juries inTexas, like thevast majority of other states, lack constitutional and statutory authority to make reports and recommendations. & The comment notes that thepropriety of such action has longbeen the source ofdiscussion, pro and con, even under common law where grand jury reports were not recognized. & at 378. Youdo not ask nor dowe 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 abank's night depository lacks the statutory underpinnings to render same abinding order.
You also ask about the liability for themoney once it has been deposited. Absent the factual context inwhich the transaction arises we are unable to answer your question. Further, itappears 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 isa long standing policy of this office not to answer questions about which litigation ispending.

P* 5886Honorable KentA. Caperton -Page 3 (JM-1119)

SUMMARY Agrand jury recommendation relative to the use ofa bank's night depository is not binding on the tax assessor-collector.

JIM MATTOX Attorney General ofTexas MARY KELLER First Assistant Attorney General LOUMCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared byTom G. Davis Assistant Attorney General

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