Untitled Texas Attorney General Opinion ( 1939 )

- \
c 0 I’ Y COPY
OFFICE OF ‘332 hTTC!~(KY3EXT;;iiX.CF TEXAS
:dletin
February 20, 1939
Mr. Joe P. Hatchett
District Attorney
Cameron County
Brownsville, Texas
Dear Mr. Eiatchett:
Opinion Ko. O-350
Re: The right of a party litigant,
In counties where the Jury whe61 law
is applicable, to have jurors drawn
rrom the jury wheel
Ke acknowledge receipt of your letter of February 13,
1939, in which you re:ueet our opinion on the Cuestlon Wwhether
or not In the trfab,of cases In the 103rd Judicial District Court
of Cameron County, Texas, a party ~lltlgant, OS demand therefor,
Is entitled to have all the jurors, under all clrcumtances,
drawn iron the jury wheel”.
In explanatton ot your question, your letter states
‘that Cameron County 1s now, and for the past several years has
been opersticg under the jury,whebl law, being Articles 2094 through
2100, Revised Civil ,Statutes, 1925, as amended, said county having
a population In excess of 58,000 and having a city containing a
population In excess of 20,000, as shown by tk.e preceding Federal
census. You further state that there are two district court8 in
Cameron County, the 103rd Judlaial District Court and the Criminal
District Court.
;7e have carefully studied the cases cited in your Iletter
ard other authorltles pertaining to the subject OS your request.
titer such study, our opinion la that as to counties coning wlthln
the jury wheel law, your question sLould be answered as follows:
(1) In selectln(T the regular jur$-for the week,Lln.elther
civil or criminal cases, and in selecting spe%lal venlres in capital
cases, a party lltlgant Is entitled on demand to have all of the
jurors drawn from the jury wheel,
(2) Zhen the regular jury for the creek or the special
venire does not furnish a sufflc&ent number of jurors, a Party
litigant is not entitled to have the necessary additional jurors
drawn r~rom the jury wheel; a!xl the statutory method of obtaining
such necessary additional jurors Is for the court to order the
sheriff to sumon taldsmen.
!dr. Joe F. Uatohell, February 20, 1939, Fage 2
The rrethod of sblsotlbg Jurors frarJ the Jury wheels la
set out In Articles 2094 through 2100, Revised Civil Statutes,
1925, as amended. TNs method of selecting the regular jurors,
In the absence of agreement or waiver by the parties, Is the only
proper way to select In advance Jurors for the week for either
clvll or non-oapltal orlmlnal cases, in coGntles where the Jury
wheel law applies. See Northern Texas Traction Company v. Bryan,
116 Tex. 479, 294 S.X. 527 (C~mmls~loc cf A peals, 1927). answers
conformed to, 299 S.W. 325 (Clv. App. 1927 P . For example, In
a oounty where the Jury wheel law applies, it has been held to
be error for the court to compel a deterdant, In a non-oapltal
criminal ease, to to to trial before a Jury selected by Jur
oommlssioners. Click v. State, 119 Tex. Cr. 118, 44 S.VJ. (2 T 992
(1931); Ervln v. State, 119 Tsx. Cr. 204, 44 S.W. (2) 3SO (1931);
Ingram v. State, 120 Tex. Cr. 8, 47 S.‘k’. (2) 285 (19323.
In capital oases, Article 591 of the Code of Criminal
Procedure, 1923, as amended, spocitlcally provides that the
special veolre shall be,drawn rrom the jury wheel, In coudtlos
coming within the jury wheel law.
A different question, however, la presented in the
situation where the regular Jury for the week or the special venire,
although properly drawn from the wheel, does not for any reason
supply a sufrlolent number of Jurors. Sir understand, iron the last
paragraph or^ your letter, that you are espeolally Interested in
the question as ta whether “It Is the duty of the court to require
that as and when additional Jurors are needed ttey must be drawn
fz;roFe.theel from time to time, If neoessary, as In the first
Our opinion is that in this situation, the court Is
not required to order that additional Jurors be drawn iroa the
wheel, but that the deflolency in the Dumber of the jurors should
be supplied by ordering the sheriff to summon talesmen.
Article 2118, Revised Civil Statutes, 1925, provides
that if there be an insufficient number of jurors Included In
the Jury list ror t&e week ln attendance on tto court, “the
court shall direct the sherlfi to summon a sufSicie.nt number of
qualified men to miske up the rec$lslte number of jurqrs.”
titlcle 2141, Revised Civil Statutes, 1925, provides
that when there are not as many as twelve names drawn fron the
box, If In the district court, *the court shell dlroot the sherlrr
to summon such number of qualified persons as the wurt deems
necessary to complete the panel.”
utlcle 2146, Eevlsed Civil Statutes. 1925, provides
that, “It challenges reduce the number OS jurors to less than will
constitute a legal jury, the court shall order other Jurors to be
drawn or summoned and their names written upon the list Instead
of those set aside rOr cause.”
. .
Mr. Joe P. Hatohell, February 20, 1939, Page
Article :I
2150, Revised Clvll 3tatutes,,l925, provides that
-when by peremptory challenges the jury Is left Incomplete, the
court aall dlreot other Jurors to be drawn or summoned to aom-
plate the Jury; and such other jurors shall be lmpaneled as In
the first instanoe.m
The foregoing Articles of the Rovlsed Civil Statutes have
their oounterparts In the Code of Criminal Procedure In the
statutes relating to trial by jury In non-capital cases. Article
640 of the Code of Criminal Procedure, 1925, provides that, Whgn,
imm sny oause, there are no regular Juror8 for the week from
whom to select a Jury, the court shall order the sherlrr to auamon
forthwith such number of qualified persona as It may deem suiflolent,
and from those summoned, a Jury shall be foraed.w It will be noted
that these prwlslons are very similar to the provlalons of Artlale
2118, Revised Civil Statutea, 1925. Articles 629, 631 and 638 ot
the Code of Criminal,Prooedure, 1925, are Identical ln their pro-
visions, respeotively, with Articles 2141, 2146 and 2150 of the
Revised Clvll Statutes, 1925.
* In civil oases, It has been held that a party litigant has
no ri&t to have necessary additional furors drawn from the Jury
wheel, when there are not sUflcleht Jurors on tho regular weekly
jury to oomplete t!m panel. Houston Electric CO. v. Seegar.
117 s. :I-. 900 (Civ. App., 19b9) itd Id I th e case olted
the regular weekly jury selected zom t:e” y&y wPde1 was lnsuffl~lent
In number, and the court ordered the sherMi to summon talesmen. tie
derendant raised the objection that it was the intention of the
Legislature in passing the Jury wheel law to do away wlth the statu-
tory provisions as to talesmen. The Court of Civil ;,ppeals rejects
this contention. The Court points out that under Section 4 of the
.Jury wheel law (now Article 2096, Revised Civil Statutes, l925, ohe
drawing or the na?nes of jurors, from the lury wheel shall take place
not less than ten days prior to the first day of the term ot court
at uMch they are to serm, and the court concludes that this Is
the only time provided by law for the openlllg of the wheel and the
drawing of the nams of jurymen therefrom.
The case of Houston Electric Co. v. Seegar, su ra was
followed In fi. H. k S. A. By. Co. v. Ml1 I 191 5.X. % {Clv.
~pp., 1917) writ refused. In the latter odaCse,the Court points
out that, “The statute for selecting Jurors for the week Is the
same for the trial of clvll and criminal cases.n In view of the
substantial Identity of the clvll and criminal statutes, we are
of tine opinion that t2.e $a= rule for obtaining ne,cessary addl-
tlonal jurors would be a?plled tn non-oapltal orlmlnal cases aa
in civil oases, I.e., that they should be summoned as taleamen
by the sherltr.
. .
Yr. Joe P. Hatohell, February 20, 1939, Page 4
Article 596 0s the Coda or Crlalnal Prooedure, 1925,
provides that In capital oases, *on failure from any cause to
aeleot a jury iron those summoned upon the special renlre, ths
oaurt shall order the sheriff to sumon any number of mn that
It may deem advisable, for the fornation of the jury.” Under
this statute, the Court of Criminal Appeals has held dlreotly
that after the apeclal venlre Is exhausted, the defendant has
no right to have additional venlrementdrawn from the wheel and
that the court should order taleamen to be summoned by tte
sheriff. Russ611 v. State, 84 Tex. Cr. 245, 209 S. 3. 071 (1918).
Very truly yours
ATTORNEYCZN:EIiAl.CF TEXAS
By J.‘.JL?SP. EART (Signed)
Jams P. Eart
Assistant
.JPS:BT
Al.1ROVZD:
GERALDC. !+?AKN
(SLgned)
ATTORNtPGENSRALCF TZXS