# ·**4'** ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable DelmaRios-Salazar Kleberg County Attorney Post Office Box 1411 Kingsville, Texas 78364-1411

DearMs. Rios-Salazar: December 17, 2013
OpinionNo. GA-1032 Re: Whether the Kleberg County commissioners court may create and fund an additional bailiff position for the 1 05th DistrictCourt (RQ-1133-GA)

You ask whether the Kleberg County commissioners court "is authorized to create and fund a separate full time bailiffposition" for the 1 05th District Court (the "Court") in Kleberg County. 1 "The 105th District Court is composed of Kenedy, Kleberg, and Nueces counties." TEX. Gov'T CoDE ANN. § 24.207(a) (West Supp. 2012). You explain that the districtjudge of the Court "serves the majority of the time in Nueces County" and that Kleberg County has supplemented the bailiff's pay for the days thejudge holds court in Kleberg County.2 Request Letter at 1-2. You tell us that, at thejudge's request, the Kleberg County commissioners court considered and approved an additional bailiff position to serve the Court when it is held in Kleberg County. ld at 2; see also Attachment at 1-2. You question the authority of the commissioners courtto create and fund this additional bailiffposition. RequestLetter at 2-3. In your view, "there is to be one bailiffappointed for each district courtin Nueces County and ifthe district is composed ofmore than one county, the bailiffis to serve each county in the district." ld at 3.By statute, certain bailiff appointments are mandatory. See TEX. Gov'T CODE ANN. § 53.001 (West 2013). Subsection 53.001(b) ofthe Government Code requires that "[a] district

.

. . courtjudge in Nueces County shall appoint a bailiff," making the Court's bailiffa mandatory
'Letter and Attachment from Honorable Delma Rios-Salazar, Kleberg Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1(June 26, 2013), http://www.texasattorneygeneral.gov/opin (Attachment on file with the Op. Comm.) ("Request Letter" and "Attachment").
2A bailiffappointed pursuant to Government Code subsection 51.003(b) "is entitled to receive a salary set by the commissioners court ofthe county in which the bailiffserves." TEX. Gov'T CODE ANN. § 53.009(i) (West 2013).The Honorable DelmaRios-Salazar

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appointment. !d. § 53.001(b) (emphasis added).3 See also id. §§ 53.006(a) (bailiff appointed under section 53.001 "is an officer ofthe court"); 53.006(d) (bailiff appointed under Section 53.001(b) "shall serve as part ofthe security force for the district

... courts in the county and shall perform other duties" as required by thejudge); 53.0071 (unless otherwise ordered, bailiff appointed under subsection 53.001(b) is a "peace officer" for purposes of article 2.12 ofthe Code of Criminal Procedure). Subsection 53.001(b) mandates a single bailiff, whereas other provisions in section 53.001 addressing multi-county courts explicitly mandate multiple bailiffs. See, e.g., id. § 53.00l(c) (mandating that each criminal district court in Tarrant County have "at least three bailiffs assigned regularly to the court"); (d) (requiring the 97th district courtjudgeto "appoint a bailiff for each county in the district"). In a separate section, the Legislature has authorized the discretionary appointment ofbailiffs by thejudges ofcertain named courts, not includingthejudgeofthe 1 05thDistrictCourt. !d. § 53.002. In construing a statute, "our primary objective is to determine the Legislature's intent, which, when possible, we discern from the plain meaning ofthe words chosen." Traxler v. Entergy GulfStates, Inc., 376 S.W.3d 742, 747 (Tex. 2012). "We may also consider other factors, including the object the statute seeks to obtain, legislative history, and the consequences ofaparticularconstruction. Moreover, we must always consider a statute as awhole and attempt to harmonize its various provisions." Marcus CableAssocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002) (citations omitted). Beyond the separation of appointments into mandatory and permissive categories, the statutory provisions governing the designation of bailiffs for the various courts are not uniform. See also 36 DAVID B. BROOKS, TEX. PRACTICE: COUNTY AND SPECIAL DISTRICT LAw § 22.24 (2d ed. 2002). Rules governing such matters as appointment, number, eligibility, and salary of bailiffs are presented in piecemeal fashion in individual provisions applicable to specific courts. Nonetheless, where statutory rules govern the appointment ofbailiffs, as in the 1 05th District Court, those rules mustbe followed. "When the Legislature uses a word or phrase in one portion ofa statute but excludes it from another, the term should not be implied where ithas been excluded." R.R. Comm 'n of Tex
. v. Tex. Citizensfor a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). The Legislature mandated multiple bailiffs for other courts but not the 1 05th District Court. Moreover, the Legislature authorized discretionary judicial appointment of bailiffs for some judges but not for the districtjudge ofthe I05th District Court

. Therefore, a court would likely conclude that, by enacting subsection 53.001(b), the Legislature has authorized the Court to appoint only one bailiff.

3 See also id § 53

.00l(f) (noting that a mandatory appointment pursuant to Government Code section 53.001 does not affect the separate duty ofa sheriffto provide a bailifffor each court); TEX. CODE CRIM. PROC. ANN

. art
. 36.24 (West 2006) (mandating the sheriffto "furnish the court with a bailiff' during criminal trials to attend to thejuryand act atthe direction ofthe court).The Honorable DelmaRios-Salazar

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The limitation of subsection 53.001(b), however, does not mean that the Court cannot hire other necessary personnel. Courts have the general power to "appoint appropriate staffand support personnel according to the needs in each county." TEX. Gov'T CODE ANN. § 74.103 (West 2013). In addition, courts have inherent powers derived not "from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities." In re El Paso Cnty. Comm 'rs Ct., 281 S.W.3d 16, 27 (Tex. App.-ElPaso 2005, no pet.). "The inherentpowers ofa court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and inthe preservation ofits independence and integrity," includingthe "power to require the legislative andjudicial branches to provide staffing and facilities for it to properlyperform itsjudicialfunctions." Id.; see also Vondy v. Comm 'rs Ct. ofUvalde Cnty., 620 S.W.2d 104, 110 (Tex. 1981) (recognizing the inherent power of courts to hire and require salaries be paid to secretaries, clerks, probation officers, and assistants, and noting that "[t]he judicial system
... cannot function properly ifthose officials who are responsible for carrying out certain duties in that process are not properly compensated"). Ifthe Court determines that it needs additional staffto aid the Court in the exercise ofitsjudicial functions, the Court may rely on Government Code section 74.103 and its inherentpowerto appoint necessarypersonnel other than abailiff.The Honorable DelmaRios-Salazar

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SUMMARY The Legislature has not authorized the creation of an additional bailiffpositionfor the 1 05thDistrictCourt. However, if the Court determines that it needs additional staffto aid the Court in the exercise of its judicial functions, the Court may rely on Government Code section 74.103 and its inherentpowerto appoint necessarypersonnel otherthan abailiff.

DANIEL T. HODGE FirstAssistantAttorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee Becky P. Casares Very truly yours,

AssistantAttorney General, OpinionCommittee