AUST~. TEXAS
.
April 8, 1950
Hon. R. L. Whitehead
Criminal District Attorney
Longview, Texas opinion Ho. V-1041.
Re: The applioabilltpto
Gregg County of Arti-
cle 21160, V0C.3., ra-
lative to selection of
juries, under the sub-
Dear MrirWhitehead: mitted facts.
Your request for au opinion is as follows:
"At presentswe are seleatlng oup juries
under Art.2094,Q.C.8. We would like to se-
lect our juries under Art. 2116c, V.C.S. Sec.
1 of ~rt~2116c,V.C.S. says that this Article
applies only to such counties wherein two or
more Distriot Courts are q alntalned.
"The County of Gregg is composed of the
124th Judicial District Court, and is over-
lapped~by the 71st Judicial District Court,
both having jurisdictionover civil and crim-
inal matters. This would seem, In this writ*
er's opinion, to qualify this county.
"Under Sec.10 of Art- 2116c, V.C.S., It
states,.thatthis act shall be cumulatiye of
and in addition to the methods now authoriz-
ed by the General Laws for the selection of
a jury panel in the counties named and that
this Article is optional with and in the dFs-
cretion of a majority of the Distriat and
county Judges.
"It is this writer's opLnion that a vote
of the Judges favoring the method instigated
in art. 21160, V.C.S., would make that method
appllaablcto Gregg County.
"After making diligent search I oan find
no cases Pelative to Art. 2116c, V.C.S* and
Hon. R. L. Whitehead, page 2 (Q-1041)
we respeotfullyrequest that yonr office
render an opinion as to whether this ooun-
ty might select its jurymen under Art.21160,
Q.C.S."
Gregg County has a population of 58,027 inhab-
itants according to the last precedingFederal Censns.
Artiole 2094, Q.C.S., was first enacted by the
Legislature in 1907 and amended by the Aots of 1911. It
was further amended by Ii.B. 163, Aots 4lst Leg., R. 9.
1929, oh.43, p.89, to read as follows:
"Artiole 2094. Between the first and
fifteenth days of August of each year, in
each county having a population of at least
fifty-eightthousand or having therein a
city containing a population of at least
twenty thousand, as shown by the preoeding
Federal Census, the Tax Colleotor or one of
his deputies, together with the Tax Asses-
sor or one of his deputies, together with -.
the Sheriff or one of his deputies, and the
County Clerk or one of his deputies, and
the Distriot Clerk or one OS his deputies,
shall meet at the aourt house of their coun-
tg and seleot from the llst of qualified
jurors of such county as shown by the tax
lists In'the Tax Assessor*8 office for the
current year, the jurors for service in the
District and County Courts of such county
tar the ensuing year in the manner herein-
after provided.*
Article 2116c, Q.C.S., passed in 1935 (B.B.IIl,
Acts 44th Leg., 2nd C.S. 1935, oh.&%, p.1744) Is also
applioableto oounties in the State wherein two or more
Distrlot Courts have been oreated and maintained or in
which two or more Distriot Courts may hereafter bs ore-
eted and maintained. The pertinent portion of the Act
reads as follows:
"In each county under this law, the
Judges of the District and Count Conrt
shall meet together every two (23 months,
or at suoh times as they may agree upon,
and determine approximatelythe number of
J-M that are reasonable and necessary
for Jury service In all of the District and
Eon. R. L. Whitehead; page 3 (Q-1041)
qounty courts _ such ~county,for each ,week
_ of
dwlng a perloa of two (2) months, beginning
ten (10) days after the date of such meeting,
,OP POP as many weeks in advance as they deem
proper. After agreeing upon the number of
weeks and upon the number of Jurors neoessary
for each of said weeks the presiding Judge
shall appoint a Jury Commission in acoordanae
with and under the provisions of the already
existing @enera Laws ~governingthe appoint-
ment of a Jury Commission,and with the same
qualificationsas are therein stated, who
shall proaeed to select the number of Jurors
for each of the weeks designated by the pre-
siding Judge, said Jurors to be selected by
said Jury Commission in the mode and manner,
and with the same qualifioations,as is now
fixed by existing Statute. The said Jury,
so limited in number fop each of said weeks,
after having been regularly selected by said
Jury Commission,shall be served by the Sher-
iff, OP any other officer authorized under
the law to serve Jurors, to appear and re-
port for Jury service before the said pre-
siding Judge, so designated,for the week for
which it has been selected. Said Jury shall
be known as the general panel of Jurors for
servioe in all of the District and County
Courts of such Connty, for the respeotlve
weeks fop whioh they are designated to.serve.
Said JLWOPS, after being summoned shall re-
port for Jury service before the presiding
Judge* shall organize said panel, hear the
exouses of said Jurors and swear them in for
service for the week they,have been selected,
to try all cases that may be submitted to
them in any of said Courts."
Article 21160, Q.C.S., further provides that
such act is cumulative of and in addition to the methods
now authorizedby general laws for the selection of a
jury panel in the aountles herein named and the adoption
of the method provided is,optional with and in the dis-
cretion of a majority of the District and County Judges
l "Who" probably omitted.
.
Hon. R. L. Whitehead, page 4 (Q-1041)
of any county coming under the provisions of the Aot.
Article 2094, Q.C.S., was later amended by S.B.
36, Acts 51st Leg., R.S. 1949, ch.467, p.868, and reads
in part as follows:
"Between the first and fifteenth days of
August of eaoh year, in each county having
a population of at least forty-six thousand
(46,000),or having therein a oity oontaining
a population of at least twenty thousand (20,-
000), as shown by the last preceding Federal
Census, and in each county having two or more
District Courts holding sessions therein, re-
gardless of population,the Tax Collector or
one of his deputies, together with the Sher-
iff or one of his deputies, and the County
Clerk or one of his deputies, and the Dls-
triot Clerk or one of his deputies, shall
meet at the court house of their county and
seleot from the list of qualified jurors of
suoh county as shown by the tax lists in the
Tax Assessor's office for the current year,
the jurors for servioe in the District and
County Courts of suoh oountg for the ensuing
year, in the manner hereinafter provided.*
The 1949 amendment to Article 2094, contained
the following emergency clause:
"The fact that there are now some coun-
ties in Texas which do not have the popula-
tions provided in Article 2094, to require
selections of jurors from a jury wheel, but
have two or more District Courts, holding
sessions therein, where, at present, each
Dlstriot Judge has to appoint separate jury
commissionersto select jurors for his par-
ticular court, and such prooeeding results
in confusion and an unfair distributionof
jury servvioe,and often in duplicationain
the separate jury lists for swh Courts,
create an emergenoy . . .'
In Popham v. Patterson, 121 Tex. 615, 51 S.W.
2d 680 (1932), the Court said:
"In construing statutes it is the duty
of the court to asoertain the legislative
Hon. R. L. Whitehead, page 5 (Q-1041)
intent and, when swh intent is onoe arriv-
ed at, it should ba giveneffeot; in faot,
swh intent is the law. In determiningthe
legislativeintent, the court should not look
alone to any one phrase, olauae, or sentenoe
of the Clot,but to the entire act; and this
includes the caption, the body of the aot,
and the emergenog olause. In this oonneotion
we hold that, even when the emergenay olause
cannot be given effect as such, still its pro-
tisions may be looked to if they aid the court
in asoertainingthe legislativeintent. . . .
“As to the question whether the sot of
1931 repeals the act of 1930, we are of the
opinion that it does. In this oonnection it
will ba noted that the sot of 1931 is a lat-
er aot, and, in 80 far as prescribingthe
terms of offioe is concerned, it ahaolutelf
conflicts with the 1930 rot. The former aot
fixes the term of office at four years, while
the latter act fixes suoh term at two years.
The sot of 1931 does not mention that of 1930,
but in so far as the term of office is oonoern-
ed, the two aots are absolutely antagonistlo
to each other. It follows that the letter sot
repeals the former by implioation.*
Also see: Parshall 8. State, 62 Tex. Grim. 177, 138 S.W.
70 Tex. Grim. 307, 159
z: Terrell,
Southwestern
118 Gas
Tex.and
463,
Eleo-
1.6
26 b75 (1946); A.G.
Inasmuoh as Artiole 2094, as amended in 1949,
is mandatory and la a later expresslou of the Legisla-
ture than Article 21160 and in view of the inoonslaten-
cy between Articles 2096 and 216, "it follovs that the
latter Act repeals the former by implioation." This is
supported by the emergewy olause in the 1949 amendment
to Artiole 2094, evidencing an intention of the LegisIa-
ture for the method provided to be exclusive in select-
ing juries in the counties ooming within the p~ovisiorm
of the Aot.
Subsequent to the repeal of Artiole 2116~ by
the amendment to Aptiol'e2094 in 1949, Artiale 2094 was
amended by H. B. 36, Acts 518% Leg., 1st C. S., 1950,
Eon. R. L. Whiteheed, page 6 (Q-1041)
effectiveHaroh 3, 1950. This amendment,?whlchreenact-
ed Article 2094 and added a provision excluding counties,
with a population of less than 24,000:inhabitantsand
with two District Courts from,the provisions of the hat,
has no effect on the oonclusionareaohed herein.'
Therefore, it is our opinion that the,provi-
siona of Artiole 2094 will prevail and will govern the
method of jury selection in Gregg County.
SlEOdARY
Artiole 2094, Q.C.S.; and Article 2116c,
Q.C.S., whioh provide a method o-f _jury
. selec-
tion in Gregg County are ln oo~llot ano an-
tagonistio to each other. Artiole.2094,being
a later expression of the Legislature, ~111
prevail over Artiole 2116c, and the method of
seleotlon for juries in said county is by the
system oommonly referred to as the "Jury Wheel
Law." am v. Patterson, 121 Tex. 615, 51
S.W.2d (1932);Parshall v. State, 62 Tex.
Grin. 177, 138 S.W. 759 (1911); Robertson v.
State, 70 Tex. Grim. 30 713 (l!XY)
'poppeendv. Terrell, 11P Ti? k:* 16 S.W.2d'
Ob3 (1929). State v. Southwester& Gas and
Electric Co&any 145 T 24 193 3 ti 2d 675
946); A.G. Opi&on no?+-996, Janu& 26,
1950.
Yours very truly,
PRICE DARIRL
APPROQRD: Attorney General '
J. C. Davis, Jr.
County Affairs Division
Charles D. Mathews
Rxeoutive Assistant Aaslstant
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