:
ORNEY ENERAL
OF TEXAS
September 21, 1950
Han. Wm. L. Taylor opinion Ho0 v-1107.
County Attorney
HaPrison county Ren Legality of selecting
Marshall, Texas lists of petit jurors
POP each jury week
rather than for each
pear Sir: calendar week.
You request an opinion from this office concern-
ing the interpretation of Article 2097 of Vernon’s Civil
Statutes o We quote from your brief as follows:
aHa~~is~n County, under Article 2094 as
amended by the First Called Session of the
51st Legislature, has had to begin use of
the jury wheel. It has been the practice in
this County for a number of years to draw
some three or four jury lists for each term
of the Mstrlct Court and approxtitelg the
same number for each term of the County Court.
Because the lltlgation in this County does not
ustifg drawing a jury list for each week of
i he court term, only the necessary number of
jury lists have been drawn.
“The Mstrlct Clerk has asked me to get
your interpretatZon of Article 2097 of the
Revised Civil Statutes of Texas. This Stat-
ute provides in part that after the lists of
the names have been drawn, that each list
shall be sealed in a separate envelope and
each envelope indorsed as follows: ‘List of
the Petit Jurors for the Week of the
Term of the c of coun-
md provides th&&ese blanksi3hlall be
filled in properly. The writer has instruct-
ed the Mstrict Clerk that In his opinion the
law would be fully and substantially caplied
with if the blanks were filled In as follows:
tList of the Petit Jurors for the First Jury
Week of the September Tern! of the Mstrlct
Court of Ha-County”, it being the writer’s
interpretation that this list of jurors could
Hon. Wm. L. Taylor, page 2 (v-1107)
be used for the first jury week of the term
even assuming that the first jury list was
not needed and not called until the 5th, 6th,
or 7th week of the tern; and the second list
called could be filled in %ist of Petit Ju-
rors for the Second Jury Week of the Septem-
ber Term of the Mstrict Comt of Harrison
county’, even though this list were not called
until the 10th or 11th week of the tern. 0 e .*
you further state that the Mstrict Clerk feels
there is a conflict between Articles 2097 and 2117, V.C.S.,
and you also request our opinion on this question.
Articles 2096, 2097, and 2117, V.C,S., provide:
Art. 2096: ‘Rot less than ten days prior
to the first day of a term of court,~ the dis-
trict clerk or one of his deputies, and the
sheriff, OF one of his deputies, in the pres-
ence and under the dfrection of the district
judge, if the jurors are to be drawn for ,the
district court, OP the clerk of the county
court, OP one of his deputies, and the sher-
iff, OP one of his deputies, in the presence
and under the direction of the county judge,
If the ~UPOPS are to be drawn for the county
cot&, shall draw from the wheel containing
the names of jurors, after the same has been
well turned so that the cards therein are thor-
oughly mlxed, one by one the names of thirty-
six jurors, or a greatep or less number where
such judge has so directed, for each week of
the term of the district OP county courts for
which a jury may be required, and shall record
such names as they are drawn upon as many sep-
arate sheets of paper as there are weeks for
such term OP terms for which jurors will be
required e At such drawing, no person other
than those above named shall be permltted to
be present o The officers attending such draw-
ing shall not divulge the name of any person
that may be drawn as a jurop to any person.”
Art. 2097: “The several lists of names
so drawn, shall be certified under the hand
of the clerk OP the deputy doing the drawing,
and the district or county judge In whose
presence said names were drawn from the wheel,
bon, I&I., L. Taylor, page 3 (V-1107)
to be the list drawn by said clerk for the
Said several weeks, and shall be sealed up
in separate envelopes lndorsed, PLiSt &$t;t
urors for the week of the
I!he court??- county,rTpiili in
the blanks properly)= the clerk doing 2 he
drawing shall write his name across the seals
of the envelopes and shall then lmtnediately
deliver the same to the judge In whose pres-
ence such names were drawn, or to his succes-
SOP In office in case such judge dies before
such delivery can be made to him,”
Art. 2117: "At any time when the Judge
of the County OP Mstrict Court needs a jury
for any particular week of such Court, he
shall notify the Clerk of such Coupt to open
the next consecutive unopened list of jurors
In his possession, and Shall direct him as to
the date for which such jurors shall be sum-
monsed. Such notice shall be given to the
Clerk within a reasonable time prior to the
time when such jurors are to be sununonsed.
The Clerk shall immediately note on the list
the date for which the jurors are to be sum-
monsed, and deliver said list to the sheriff.
On receipt of such list, the sheriff shall
lmmedlately notify the several persons named
therein to be in attendance on Court on the
date so designated by the Judge.’
It 1s observed that Article 2096 provides that
the names of jurors shal,l be drawn from the ~jury wheel
*for each week of the term of the district OP county
courts for which a jury xbe required." This lndl-
cates that there would be no need to draw names from
the jury wheel for those weeks of the term for which a
jury is not required. Therefore, we are ~ln accord with
your opinion that there would be a substantial compli-
ance If the envelope containing the list of names drawn
from the jury wheel is $.ndorsed as outlined by you. We
believe we are supported in this view when the statutes
relating to challenges of jury panels are considered.
Article 608, V.C C.P., provides for challenge
to the array in capital cases and is as follows:
“Either party may challenge the array
only on the ground that the officer susanon-
ing the jury has wilfully sununoned jurors
Ron. Wm. L. Taylor, page 4 (V-1107)
with a view to securing a conviction or an
acquittal. All such challenges must be in
writing setting forth distinctly the grounds
of such challenge. When made by the defend-
ant, it must be supported by his affidavit or
the affidavit of any credible person. When
such challenge is made the judge shall hear
evidence and decide without delay whether OP
not the challenge shall be sustained. This
article does not appl when the jurors sum-
moned have been selec e ed by jury commlsslon-
era.”
Article 641, V.C.C.P., relating to noncapital
cases provides:
“The array of jurors may be challenged
by either party for the causes and in the
manner provided In capital cases,” __ ~~.
,.-~
Rule 221 of Vernon”s Texas Rules of Civil Pro-
cedure provides:
“When the jurors summoned have not been
selected by jury cormnissloners or by drawing
the names from a jury wheel, any party to a
suit which is to be tried by a jury may, be-
fore the jury Is drawn challenge the array
upon the ground that the officer smumoning
the jury has acted corruptly, and has wllfnl-
ly summoned jurors known to be prejudiced
against the party challenging or biased in
favor of the adverse party. All such chal-
lenges must be in writing setting forth dls-
tlnctly the grounds of such challenge and
supported by the affidavit of the party OP
some other credlble person. When such chal-
lenge is made, the court shall hear evidence
and decide without delay whether or not the
challenge shall be sustained.*
The above statutes and Rule have reference to
those jurors sunsnoned by the offiaer, other than those
selected by a jury commission or those drawn from the
jury wheel, because in these latter instanoes the offl-
cer has no discretion as to which persons he will sum-
mon, but must summon only those persons whose names have
been selected by the jury commission or drawn from the
ury wheel and which appear on the list furnished him by
i he Clerk.
Hon. Wm. L. Taylor, page 5 (V-1107)
In Roundtree v. Gilroy 57 Tex, 176, 180 (18%2),
where there was a challenge to tie array which had been
selected by a jury coEa@ssion, it is staied:
“The statute provides how, and for what
causes, a challe e to the array may be made.
It provides that Y any~party to a suit which is
to be tried by a jury, may, before the jury
Is drawn, challe e the array of jurors upon
“&
making it appear hat the officer swmonLng
the jury has acted corruptly, and has will-
fully summoned urors known to be prejudiced
against the par2 y challenging, OP biased in
favor of the adverse party.” R, S., 3074.
Neither of the grounds of challenge given by
the statute were relied upon la this cause
and none others exist, and the cgurt did not
em in overruling the challenge.
Accopd, Galveston. 11. & S. RY. V. Yorth, 116 S-W. 365
(Tex.Civ.App. 1909, error ref.).
Also in Roberts v. State, 17 S.Y. 450, 451 (TAX.
Grim. 1891), It Is stated:
“Statutes directing the mode of proceed-
in by public officers are directory, and aPe
no & to be regarded as essential to the valid-
ity of the proceedings themselves, unless SO
declared in the statutes.’
We agree with you that the lists of petit ju-
rors be selected for each jury week rather than each
calendar week of the term of court and we also agree that
there is no conflict between Articles 2117 and 2097.
Lists of petit jurorsmay be selected
for each jury week rather than each calen-
dar week of the term of court.
APPROVED: Yom23 very truly,
J. C. Davis, Jr. PRICE IMIEL
County Affairs Mvlslon Attorney General
Everett Hutchlason
Executive Asslstant
Charles D. Mathews
First Assistant
BAlliw