Let it be understood in the beginning that if the term "arbitrary" disregard of a statute may be found herein it is not used in an ugly or critical sense, but only as meaning that there was a purposeful or intentional failure to follow the statute.
The legal proposition involved is very clearly stated in the State's brief in support of its motion for rehearing, as follows: " * * * whether or not Article 333, C. C. P., with reference to the selection of jury commissioners was rendered directory only by the amendment of Article 348, C. C. P., passed at the Regular Session of the 43d Legislature in 1933, * * *."
Articles 333-338 provide for the appointment of jury commissioners at each term of the district court to select grand jurors to serve at the next term of court. Article 348, C. C. P. (prior to its amendment in 1933), provided that: "If there should be a failure from any cause to select and summon a grand jury as herein directed," the district court should direct the sheriff to summon persons to serve as grand jurors. By an unbroken line of authorities it has been held that an intentional failure to have a grand jury selected at a preceding term of court would not authorize the court to select them under Article 348. It seems perfectly plain that in amending Article 348 the only purpose of the Legislature was to say that if any of those reasons which excused selecting the grand jury at the preceding term of court was present then the court, instead of having the sheriff summon men from whom a grand jury could be impaneled for the instant term, should appoint commissioners to select the grand jurors for the instant term. In amending said Article 348, C. C. P., the Legislature employed the very *Page 187 same language found therein before, viz.: "If there should be a failure from any cause to select and summon a grand jury as herein directed," etc.
We quote from 39 Tex Jur., p. 267, as follows: "When a statute is re-enacted without material change, it is generally presumed that the Legislature knew and adopted or approved the interpretation placed upon the original act, and intended that the new enactment should receive the same construction as the old one. Accordingly the construction of the old act is regarded as a part of the new, and a different interpretation will be given only 'for impelling and cogent reasons.' " Many cases both civil and criminal are cited in support of the text. See also the later case of Parrish v. State, 126 Tex. Crim. 308,71 S.W.2d 274. Giving effect to the rule quoted, it seems inescapable that the Legislature intended the same construction to be given the words "a failure from any cause," to select a grand jury at the preceding term of court as had been given it in prior opinions. No change was made in Articles 333 to 338. To follow the suggestion of the State would require us to hold that the amendment of Article 348 in 1933 had the effect of modifying Articles 333-338, leaving it discretionary with the trial court to select his grand jury either at the preceding term or the instant term for any reason which might appeal to him, regardless of the former opinions pointing out that the reasons for not following Articles 333-338 must not be arbitrary. If the Legislature had intended to leave it discretionary with the trial judge to select his grand jury either at the preceding term or the instant term it would have been a simple matter for it to have said so, but it would be quite a serious matter for this Court to read into the statute something which was omitted by the law-making body.
The State's motion for rehearing is overruled.