Can a Texas county fund a second bailiff for a multi-county district court?

Plain-English summary

The 105th District Court is a single trial court that serves three counties: Kenedy, Kleberg, and Nueces. The judge sits most of the time in Nueces County, and when the judge holds court in Kleberg County, Kleberg County had been supplementing the bailiff's pay. At the judge's request, the Kleberg County commissioners court considered and approved an additional bailiff position to serve the court when it sits in Kleberg County. The Kleberg County Attorney, Delma Rios-Salazar, asked the Attorney General whether the commissioners court had authority to create and fund that extra bailiff position.

The Attorney General concluded the Legislature had not authorized an additional bailiff for the 105th District Court. Some bailiff appointments are mandatory: Government Code subsection 53.001(b) requires a district court judge in Nueces County to appoint a bailiff, which made the court's bailiff a mandatory appointment, but the provision speaks of a single bailiff. Where the Legislature wanted multiple bailiffs, it said so, as with the criminal district courts in Tarrant County (at least three) and the 97th district court (one for each county in the district). And in a separate section, the Legislature allowed certain named courts' judges to make discretionary bailiff appointments, but the 105th District Court was not among them. Reading the statute as a whole, and applying the principle that a term used in one part of a statute but left out of another should not be implied where it was excluded, the AG concluded a court would likely find that subsection 53.001(b) authorized only one bailiff for the court.

The opinion did not leave the court without options for staffing. The limit on bailiffs did not mean the court could not hire other necessary personnel. Courts have a general statutory power to appoint appropriate staff and support personnel according to each county's needs, and they have inherent powers, flowing from the court's constitutional creation, to require staffing and facilities needed to perform their judicial functions. So if the court determined it needed additional staff to aid in its judicial work, the AG concluded it could rely on Government Code section 74.103 and its inherent power to appoint necessary personnel other than a bailiff.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Kleberg County Attorney and commissioners court (as the opinion described it): The opinion answered that the Legislature had not authorized an additional bailiff position for the 105th District Court, so the commissioners court lacked statutory authority to create and fund one, while noting the court could appoint other necessary personnel under section 74.103 and its inherent power.

The 105th District Court (as the opinion described it): The opinion described subsection 53.001(b) as authorizing a single mandatory bailiff for the court, and described section 74.103 and the court's inherent power as a basis for hiring staff other than a bailiff if needed.

District judges of multi-county courts generally (as the opinion described it): The opinion described the bailiff statutes as not uniform, with the number of bailiffs set court by court, so that multiple bailiffs are authorized only where a provision expressly says so.

Common questions

Could Kleberg County add a second bailiff for the 105th District Court?
The AG concluded no. The Legislature had not authorized an additional bailiff for that court; subsection 53.001(b) provides for a single mandatory bailiff, and no other provision authorizes more for the 105th District Court.

Why does a single bailiff apply here when other courts get several?
The AG explained that the bailiff statutes are not uniform. The Legislature expressly required multiple bailiffs for some courts, such as Tarrant County's criminal district courts and the 97th district court, but did not do so for the 105th District Court, and a term excluded from one part of a statute is not implied.

Can the court still hire more help if it needs it?
Yes, just not a second bailiff. The AG said the court could rely on Government Code section 74.103 and its inherent power to appoint necessary personnel other than a bailiff if it determined it needed additional staff for its judicial functions.

Background and statutory framework

The 105th District Court is composed of Kenedy, Kleberg, and Nueces counties (Tex. Gov't Code Ann. § 24.207(a) (West Supp. 2012)). Certain bailiff appointments are mandatory (Tex. Gov't Code Ann. § 53.001 (West 2013)), and subsection 53.001(b) requires a district court judge in Nueces County to appoint a bailiff, who is an officer of the court, part of the security force, and a peace officer for purposes of article 2.12 of the Code of Criminal Procedure (Tex. Gov't Code Ann. §§ 53.001(b), 53.006(a), 53.006(d), 53.0071; Tex. Code Crim. Proc. Ann. art. 2.12). The bailiff's salary is set by the commissioners court of the county served (Tex. Gov't Code Ann. § 53.009(i) (West 2013)). Where the Legislature wanted multiple bailiffs it said so, as for Tarrant County criminal district courts (Tex. Gov't Code Ann. § 53.001(c)), and it allowed discretionary appointments for certain named courts not including the 105th (Tex. Gov't Code Ann. § 53.002). A mandatory appointment does not displace a sheriff's separate duty to provide a bailiff (Tex. Gov't Code Ann. § 53.001(f); Tex. Code Crim. Proc. Ann. art. 36.24 (West 2006)).

The AG construed the statutes to determine legislative intent from the plain meaning of the words chosen and to harmonize the statute as a whole (Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002)), and applied the rule that a term used in one part of a statute but excluded from another is not implied (R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)). On the court's residual staffing authority, the AG relied on the general appointment power (Tex. Gov't Code Ann. § 74.103 (West 2013)) and the court's inherent powers (In re El Paso Cnty. Comm'rs Ct., 281 S.W.3d 16, 27 (Tex. App.-El Paso 2005, no pet.); Vondy v. Comm'rs Ct. of Uvalde Cnty., 620 S.W.2d 104, 110 (Tex. 1981)).

Citations

Statutes:

• Tex. Gov't Code Ann. § 24.207(a) (West Supp. 2012) (counties composing the 105th District Court)
• Tex. Gov't Code Ann. § 53.001 (West 2013), § 53.001(b), § 53.001(c), § 53.001(f) (mandatory bailiff appointments)
• Tex. Gov't Code Ann. § 53.002 (discretionary appointments for named courts)
• Tex. Gov't Code Ann. § 53.006(a), § 53.006(d), § 53.0071 (status and duties of the bailiff)
• Tex. Gov't Code Ann. § 53.009(i) (West 2013) (bailiff salary set by commissioners court)
• Tex. Gov't Code Ann. § 74.103 (West 2013) (general power to appoint staff and support personnel)
• Tex. Code Crim. Proc. Ann. art. 2.12 (peace officers); art. 36.24 (West 2006) (sheriff to furnish a bailiff during criminal trials)

Cases:

• Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012)
• Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• In re El Paso Cnty. Comm'rs Ct., 281 S.W.3d 16, 27 (Tex. App.-El Paso 2005, no pet.)
• Vondy v. Comm'rs Ct. of Uvalde Cnty., 620 S.W.2d 104, 110 (Tex. 1981)

Other authority:

• 36 David B. Brooks, Tex. Practice: County and Special District Law § 22.24 (2d ed. 2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1032
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1032.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 17, 2013

The Honorable Delma Rios-Salazar Opinion No. GA-1032
Kleberg County Attorney
Post Office Box 1411 Re: Whether the Kleberg County
Kingsville, Texas 78364-1411 commissioners court may create and fund an
additional bailiff position for the 105th
District Court (RQ-1133-GA)

Dear Ms. Rios-Salazar:

You ask whether the Kleberg County commissioners court "is authorized to create and fund a separate full time bailiff position" for the 105th 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 district judge 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 the judge holds court in Kleberg County.[2] Request Letter at 1-2. You tell us that, at the judge'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. Id. at 2; see also Attachment at 1-2. You question the authority of the commissioners court to create and fund this additional bailiff position. Request Letter at 2-3. In your view, "there is to be one bailiff appointed for each district court in Nueces County and if the district is composed of more than one county, the bailiff is to serve each county in the district." Id. at 3.

By statute, certain bailiff appointments are mandatory. See TEX. GOV'T CODE ANN. § 53.001 (West 2013). Subsection 53.001(b) of the Government Code requires that "[a] district . . . court judge in Nueces County shall appoint a bailiff," making the Court's bailiff a mandatory appointment. Id. § 53.001(b) (emphasis added).[3] See also id. §§ 53.006(a) (bailiff appointed under section 53.001 "is an officer of the court"); 53.006(d) (bailiff appointed under Section 53.001(b) "shall serve as part of the security force for the district . . . courts in the county and shall perform other duties" as required by the judge); 53.0071 (unless otherwise ordered, bailiff appointed under subsection 53.001(b) is a "peace officer" for purposes of article 2.12 of the 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. § 53.001(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 court judge to "appoint a bailiff for each county in the district"). In a separate section, the Legislature has authorized the discretionary appointment of bailiffs by the judges of certain named courts, not including the judge of the 105th District Court. Id. § 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 of the words chosen." Traxler v. Entergy Gulf States, 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 of a particular construction. Moreover, we must always consider a statute as a whole and attempt to harmonize its various provisions." Marcus Cable Assocs., 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 of bailiffs, as in the 105th District Court, those rules must be followed.

"When the Legislature uses a word or phrase in one portion of a statute but excludes it from another, the term should not be implied where it has been excluded." R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). The Legislature mandated multiple bailiffs for other courts but not the 105th District Court. Moreover, the Legislature authorized discretionary judicial appointment of bailiffs for some judges but not for the district judge of the 105th 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.

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 staff and 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.-El Paso 2005, no pet.). "The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity," including the "power to require the legislative and judicial branches to provide staffing and facilities for it to properly perform its judicial functions." Id.; see also Vondy v. Comm'rs Ct. of Uvalde 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 if those officials who are responsible for carrying out certain duties in that process are not properly compensated"). If the Court determines that it needs additional staff to aid the Court in the exercise of its judicial functions, the Court may rely on Government Code section 74.103 and its inherent power to appoint necessary personnel other than a bailiff.

SUMMARY

The Legislature has not authorized the creation of an additional bailiff position for the 105th District Court. However, if the Court determines that it needs additional staff to aid the Court in the exercise of its judicial functions, the Court may rely on Government Code section 74.103 and its inherent power to appoint necessary personnel other than a bailiff.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] 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").

[2] A bailiff appointed pursuant to Government Code subsection 53.001(b) "is entitled to receive a salary set by the commissioners court of the county in which the bailiff serves." TEX. GOV'T CODE ANN. § 53.009(i) (West 2013).

[3] See also id. § 53.001(f) (noting that a mandatory appointment pursuant to Government Code section 53.001 does not affect the separate duty of a sheriff to provide a bailiff for each court); TEX. CODE CRIM. PROC. ANN. art. 36.24 (West 2006) (mandating the sheriff to "furnish the court with a bailiff" during criminal trials to attend to the jury and act at the direction of the court).