The Attorney General of Texas
October 8, 1980
MARK WHITE
Attorney General
Honorable Ben Z. Grant, Chairman Opinion No. m-250
House Judiciary Committee
Capitol Building Re: Whether the state may compel
Austin, Texas 78711 active United States military
personnel to engage in jury service
Dear Chairman Grant:
You have requested our opinion es to whether a state may compel
active United States military personnel to engage in jury service.
Federal law exempts from federal jury service “members in active
service in the Armed Forces of the United States.” 28 U.S.C. 51863(b)(6). It
has been held that the grant of such an exemption &es not contravene a
defendant’s right to an impartial jury or his sixth amendment right to a jury
trial. Government of the Canal Zone v. Scott, 502 F. 2d 566, 569 (5th Cir.
1974). Although this decision makes clear that a state could grant an
exemption to United States military personnel, it does not specifically reach
the question of whether it must do so.
806eroadway.suite 312
Lubbock,TX. 79401 The law is well-settled that states may not interfere with the
806”47-5238 performance of proper federal functions. Thus, one factor to be considered
in answering your question is whether compelling federal military personnel
to serve on state juries would unduly burden the operations of the federal
government. The Scott court, m, seemed to indicate that it might:
. . . because it is the ‘primary business of armies end
navies to fight or be ready to fight wars should the
occasion arise ‘, . . . the exclusion of military
personnel from jury duty is reasonable and for the
good of the community. . . .
502 F. 2d at 569. A case of direct interference was held impermissible in
United States v. McLeod, 385 F. 2d 734 (5th Cir. 1967), in which a federal
court stated that a state grand jury lacked the authority to investigate the
operation of a federal agency. The court said that:
merely calling employees of the federal government
before the grand jury would have the prescribed
disruptive effect on the administration of a federal
agency.
385 F. 2d,at 752.
p. 787
Honorable Ben Z. Grant - Page Two (I@-250)
A decision even more relevant to your inquiry is In re McShane’s Petition, 235 F.
Supp. 262 (N.D. Miss. 1964). There, the court held that a state was without authority
to indict a federal marshal for using tear gas in violation of state law. The marshal
had been acting under express statutory authority and under the express, specific
orders of his superiors. 235 F. Supp. at 271.
Other states provide an exemption from jury service for United States military
personnel. See, e&, California Civ. Proc. Code 5200 (West). New York law states
that “[ml embers in active service in the armed forces of the United States” are
disqualified from service as jurors. N.Y. Jud. Law 5511(MeKinney). A 1972 opinion of
the Attorney General of Florida states that United States military officers “are
absolutely disqualified to serve as grand or petit jurors.” Fla Attorney General
Opinion 072-155 (1972).
In our opinion, the stistantial weight of authority indicates that an active
member of the United States armed forces, acting under federal law and pursuant to
the valid orders of a superior, may not be compelled by a state to engage in jury
service.
SUMMARY
An active member of the United States armed forces, acting
under federal law and pursuant to the valid orders of a superior,
may not be compelled by a state to engage in jury service.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY Hl
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Susan Bradshaw
Rick Gilpin
p. 786
Untitled Texas Attorney General Opinion
Combined Opinion