Does a Texas county official have to follow a grand jury's recommendation, like one about using a bank night depository?

Texas AG Opinion JM-1119: Is a Grand Jury's Recommendation Binding on a County Official?

Plain-English summary

A grand jury looked at how a county tax assessor-collector was using a bank's night depository (the after-hours drop box banks provide for deposits) and made a recommendation about it. A state senator asked the Attorney General what that recommendation actually did: was the tax assessor-collector required to follow it, and who was on the hook for the money once it went into the depository?

On the first question, the Attorney General was direct: the recommendation is not binding. A Texas grand jury's role is defined by statute, and that role is to investigate offenses that could lead to indictment and then to vote on whether to return or reject an indictment. It delivers indictments to the court. Nothing in the statutes gives a grand jury authority to issue reports or recommendations about how a public office should run its day-to-day operations. A law review article the opinion cited made the same point: grand juries in Texas, like those in most states, have historically issued reports on matters of public interest, but they lack the constitutional and statutory authority to do so in a way that binds anyone. So the recommendation about the night depository, whatever its merits, lacked the legal underpinning to function as a binding order.

On the second question, liability for the deposited money, the Attorney General declined to answer. Without the specific facts of a transaction, the office could not say who would be responsible. The opinion also noted that the question appeared to arise from an indictment pending against an employee in the tax assessor-collector's office, and it is a long-standing policy of the Attorney General not to answer questions tied to pending litigation.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG 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.

The grand jury statutes cited here (Code of Criminal Procedure articles 20.09, 20.19, and 20.21) have been amended and renumbered since 1989, and the rules governing grand jury reports have their own separate history. The core principle, that a Texas grand jury's authority runs to indictments rather than to binding operational recommendations, is the takeaway, but anyone researching grand jury powers today should check the current statutes.

Who this opinion affected (as of 1989)

County tax assessor-collectors and other county officials: The opinion told them that a grand jury's recommendation about how they run their offices does not bind them. It carries whatever persuasive weight the official chooses to give it, but it is not an order.

Grand juries: The opinion marked the outer limit of their statutory role. They investigate offenses and act on indictments; issuing binding operational directives to public offices is outside that role.

The public and prosecutors: The opinion clarified that concerns a grand jury surfaces about a public office do not, by themselves, change the office's legal duties. Those concerns might inform an indictment or a policy debate, but the recommendation itself is not self-executing.

Common questions

Does a county official have to follow a grand jury recommendation?
No. The Attorney General concluded that a grand jury recommendation about the tax assessor-collector's use of a night depository is not binding on that official. A grand jury's authority runs to indictments, not to binding recommendations.

What can a Texas grand jury actually do?
Under the statutes, it investigates offenses that may lead to indictment and votes on whether to return or reject an indictment, delivering indictments to the court. The opinion, following an earlier opinion (M-1171), noted that a grand jury may only investigate alleged criminal offenses and report as to indictments returned or rejected.

Who is liable for the money in the night depository?
The Attorney General did not answer that. It said it could not resolve liability without the specific facts, and it declined to address the question because litigation was pending against an employee in the office.

Background and statutory framework

The opinion grounded its answer in the grand jury statutes. Article 20.09 of the Code of Criminal Procedure sets out the grand jury's duty to inquire into all indictable offenses of which any member has knowledge or of which it is informed by the attorney representing the State or another credible person. Article 20.19 provides for the vote on presentment of an indictment after the grand jury hears the accessible testimony, requiring nine members to concur before the foreman prepares the memorandum from which the indictment is written. Article 20.21 addresses the grand jury's report to the court, requiring the indictment to be delivered through the foreman to the judge or clerk with at least nine members present.

Reading those provisions together, the opinion followed Attorney General Opinion M-1171 (1972), which concluded that a grand jury may only investigate alleged criminal offenses and may only report as to indictments returned or rejected. See Rich v. Eason, 180 S.W. 303 (Tex. Civ. App. - Beaumont 1915, no writ). The opinion also cited a law review comment, "Grand Jury Reports: An Examination of the Law in Texas and Other Jurisdictions," 7 St. Mary's L.J. 374 (1975), which recognized that Texas grand juries have long issued reports on matters of public interest and on official misconduct, but that grand juries in Texas, like those in most other states, lack the constitutional and statutory authority to make such reports and recommendations, and that the propriety of the practice has long been debated even under the common law, where grand jury reports were not recognized. Id. at 378.

The opinion expressly did not address whether such grand jury reports or recommendations are proper. It concluded only that a grand jury recommendation about the tax assessor-collector's use of a bank's night depository lacks the statutory underpinnings to make it a binding order. As for liability for the deposited money, the opinion declined to answer, both because it could not do so without the factual context and because of the office's policy against answering questions where litigation (here, a pending indictment against an employee in the office) is pending.

Citations

Statutory authorities:

• Code of Criminal Procedure art. 20.09 (duties of the grand jury; inquiry into indictable offenses)
• Code of Criminal Procedure art. 20.19 (vote on presentment of an indictment; nine-member concurrence)
• Code of Criminal Procedure art. 20.21 (delivery of the indictment to the court)

Cases:

• Rich v. Eason, 180 S.W. 303 (Tex. Civ. App. - Beaumont 1915, no writ)

Secondary authority:

• Comment, "Grand Jury Reports: An Examination of the Law in Texas and Other Jurisdictions," 7 St. Mary's L.J. 374 (1975)

Attorney General opinions referenced:

• M-1171 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1119
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1119.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 18, 1989

Honorable Kent A. Caperton
Chairman
Finance Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JM-1119

Re: Effect and authority of a grand jury recommendation regarding a county's use of 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 representing the State, or any other credible person.

Article 20.19 of the Code of Criminal Procedure provides 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 accessible 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.

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 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 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. See Rich v. Eason, 180 S.W. 303 (Tex. Civ. App. - Beaumont 1915, no writ).

A law review article, comment, Grand Jury Reports: 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. Id. 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. Id. 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.

SUMMARY

A grand jury recommendation relative to the use of a bank's night depository is not binding on the tax assessor-collector.

Very truly yours,

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