MS 2023-01-A-Nowak-January-19-2023-Riding-Bailiffs January 19, 2023

Can a Mississippi judge appoint a constable to serve as a riding bailiff in circuit, chancery, or county court?

Short answer: No. Mississippi's riding bailiff statute (§ 19-25-31) authorizes circuit, chancery, county, and eminent domain court judges to appoint sheriff riding bailiffs only. There is no parallel authority for constables to serve as riding bailiffs. Constables can serve as bailiffs in justice court (§ 19-19-8) and as civil court bailiffs (§ 25-7-27), but they cannot fill the riding bailiff role in the higher courts.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

DeSoto County's board attorney asked the AG a clean two-part question: (1) can the judges of the circuit, chancery, county, or special eminent domain courts authorize a constable to serve as a "riding bailiff," and (2) if yes, does the county pay the constable the same fees as sheriff riding bailiffs.

The AG answered no on the first question, which mooted the second.

Riding bailiffs are a specific creature of § 19-25-31. The statute lets the named judges, in their discretion and by minute order, "allow the sheriff riding bailiffs to serve in the respective court of such judge, not to exceed four (4) bailiffs." A 2015 Mississippi Supreme Court footnote in Lewis v. Hinds County Circuit Court, 158 So. 3d 1117, 1121 n.1 (Miss. 2015), described riding bailiffs as "hired under the judge's discretion by a court order" to "allow the sheriff additional bailiffs," distinct from regular deputies or sheriff's bailiffs. The statute also expressly forbids paying full-time deputy sheriffs as riding bailiffs.

Constables are different. They are elected county law enforcement officers under § 19-19-5. Their statutory bailiff role is in justice court (criminal under § 19-19-8) and civil court (§ 25-7-27). When constables serve in those statutory bailiff roles, they are paid at the riding bailiff rate, but that is a fee-rate cross-reference, not an authorization to act as a riding bailiff in the higher courts.

There is no statute that authorizes a circuit, chancery, county, or eminent domain court judge to deputize a constable as a riding bailiff for the sheriff. The AG declined to read one in by analogy. Statutory authority is required, and the legislature has not provided it.

The fee question (would the constable be paid sheriff-riding-bailiff rates) became moot. If the underlying authority to appoint does not exist, the fee question never reaches the table.

What this means for you

If you are a circuit, chancery, county, or special eminent domain court judge in Mississippi

You cannot appoint a constable to serve as a riding bailiff in your court. § 19-25-31 limits the riding bailiff role to sheriff personnel, capped at four bailiffs total per court, and excludes full-time deputies. If your court needs additional bailiff capacity, the path is through the sheriff. Coordinate with the sheriff to identify reserve deputies or special deputies who can serve as riding bailiffs (subject to the four-bailiff cap and the no-full-time-deputies rule).

If you are working with a constable for justice court matters, the constable's role and fee are governed by §§ 19-19-8 and 25-7-27. That is a different statutory scheme.

If you are a Mississippi constable

You can serve as a bailiff in justice court (criminal, § 19-19-8) and in civil court (§ 25-7-27), and your fee for that work is set by reference to the riding bailiff rate. You cannot serve as a riding bailiff in circuit, chancery, county, or eminent domain court. If a higher-court judge has been routing assignments to you on a riding-bailiff theory, the legal basis is missing. Your statutory bailiff role stops at justice court.

If you are a county supervisor or county attorney

Audit your court-personnel arrangements. If a circuit, chancery, or county court is paying constables under a riding-bailiff theory, the arrangement lacks statutory authority and the AG just said so. Talk with the affected court(s) about whether sheriff personnel can fill the role, or whether the court's bailiff need can be met through the sheriff's regular bailiff budget.

If the county has been processing fee claims for constables serving in circuit court roles, those claims are likely improperly paid. Get specific advice on whether to recoup or how to handle prospectively.

If you are a sheriff

Riding bailiffs are your personnel. The statute caps the count at four per court and excludes your full-time deputies. The AG opinion underlines that no other office can substitute. Coordinate with the courts on which judges want riding bailiffs and which of your reserve deputies can fill the role. If a court has been borrowing constables to fill in, expect that to stop.

If you are a citizen who saw a constable acting in a higher court role

The constable likely had statutory authority for some of what they were doing (executing process, serving papers, securing custody), but not specifically for the "riding bailiff" job. The 2023 Nowak opinion clarifies the line. The remedy is administrative: the courts and county officials reorganize who serves where.

Common questions

Q: What exactly is a "riding bailiff"?
A: § 19-25-31 authorizes additional bailiffs (beyond the regular ones) hired under the judge's discretion by court order. The Mississippi Supreme Court explained in Lewis (2015) that they "allow the sheriff additional bailiffs" and "differ from deputies or bailiffs of the sheriff." They typically support the court during sessions, providing security and prisoner transport.

Q: Why does § 19-19-8 reference the riding bailiff rate if constables cannot be riding bailiffs?
A: § 19-19-8 governs the fee a constable gets when serving as a justice court bailiff. It uses the riding bailiff rate as the dollar amount. The cross-reference is just borrowing the fee number, not granting status as a riding bailiff. The AG was specific on this distinction.

Q: Can a constable be sworn in as a special deputy sheriff and then serve as a riding bailiff?
A: That is a different question. If the constable becomes a special deputy through the sheriff's office under the relevant special-deputy statutes, they may then qualify as sheriff personnel for riding bailiff purposes. The AG opinion did not address that possibility because the question was framed as constable-serving-as-riding-bailiff. Consult specific advice if this is the planned arrangement.

Q: How many riding bailiffs can a court have?
A: Up to four per court under § 19-25-31. The cap is per court, not per county.

Q: Can a full-time deputy sheriff be paid extra as a riding bailiff?
A: No. § 19-25-31 expressly says: "No full-time deputy sheriff shall be paid as a riding bailiff of any court." Reserve deputies and other sheriff personnel may be eligible.

Q: Does this opinion change anything about the constable's regular bailiff role in justice court?
A: No. The constable's authority to serve as justice court bailiff under § 19-19-8 (criminal) and § 25-7-27 (civil) is unchanged. Only the riding bailiff role in circuit, chancery, county, and eminent domain courts is at issue.

Q: What if the sheriff cannot supply enough riding bailiffs?
A: Talk to the legislature, not the AG. The current statute caps the number at four sheriff bailiffs per court and excludes others. If counties need broader capacity, that is a legislative fix.

Background and statutory framework

§ 19-25-31 is the riding bailiff statute. It authorizes circuit, chancery, county, and eminent domain court judges, in their discretion and by minute order, to allow the sheriff up to four riding bailiffs per court. The riding bailiff is paid by the county at a per-day or per-hour rate set by the statute. Full-time deputies are excluded from the riding bailiff role.

§ 19-19-5 establishes constables as elected county law enforcement officers and sets their general duties. § 19-19-8 makes the constable a bailiff in criminal justice court. § 25-7-27 establishes the constable's role and fees in civil justice court.

The Lewis v. Hinds County Circuit Court footnote provides the practical description of the riding bailiff role and confirms the statutory limits.

The AG's reading is straightforward: a constable serving as a riding bailiff would require statutory authority. None exists. The AG declined to imply such authority from related statutes, applying the standard rule that public officials' powers must be expressly conferred by statute.

Citations

Miss. Code Ann. § 19-19-5 (constable duties)
Miss. Code Ann. § 19-19-8 (constable as criminal justice court bailiff)
Miss. Code Ann. § 19-25-31 (sheriff riding bailiffs)
Miss. Code Ann. § 25-7-27 (constable as civil court bailiff)
Lewis v. Hinds County Circuit Court, 158 So. 3d 1117, 1121 n.1 (Miss. 2015) (riding bailiff role distinguished from regular deputies)

Source

Original opinion text

January 19, 2023

Anthony E. Nowak, Esq.
Attorney, DeSoto County Board of Supervisors
Post Office Box 346
Hernando, Mississippi 38632
Re:

Riding Bailiffs

Dear Mr. Nowak:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. May a constable be authorized by the judges of the circuit, chancery, county courts, and
special courts of eminent domain, to serve as a riding bailiff?
2. If the answer to question one above is in the affirmative, is the county to pay the constable
serving as a riding bailiff the same fees as authorized to be paid to the sheriff's riding
bailiffs?
Brief Response
1. No. A constable is not authorized to serve as a riding bailiff.
2. Due to our response to your first question, your second question is moot.
Applicable Law and Discussion
Mississippi Code Annotated Section 19-25-31 provides authority for certain judges to allow a
sheriff riding bailiffs to serve in the respective court of the judge. Section 19-25-31 states, in
pertinent part:
Each judge of a circuit, chancery or county court, or a court of eminent domain
may, in the judge's discretion, by order entered on the minutes of the court, allow
the sheriff riding bailiffs to serve in the respective court of such judge, not to exceed
four (4) bailiffs. . . . No full-time deputy sheriff shall be paid as a riding bailiff of
any court.
This section provides that certain judges may allow the sheriff to have additional, "riding" bailiffs
to serve in court. See Lewis v. Hinds County Circuit Court, 158 So. 3d 1117, 1121 at n.1 (Miss.
2015) ("Riding bailiffs are hired under the judge's discretion by a court order and allow the sheriff
additional bailiffs . . . , and they differ from deputies or bailiffs of the sheriff.")
Constables are elected county law enforcement officers and their duties are set forth in Section 19-19-5. They may serve as justice court bailiffs in criminal court under the purview of Section 19-19-8 and may serve as bailiffs in civil court under Section 25-7-27. The statutes do not provide for
constables to serve as riding bailiffs, only that they be paid the rate set forth in the riding bailiff
statute when fulfilling their statutory role as bailiff under Sections 19-19-8 and 25-7-27.
There is no statutory authority authorizing a judge of the circuit, chancery, or county court, or a
court of eminent domain, to order a constable to serve as a riding bailiff for the sheriff.
Due to our response to your first question, your second question is moot.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General