THE ATTORNEY GENERAL
OF TEXAS
June 15, 1989
Honorable Johnny W. Actkinson Opinion No. JM-1059
District Attorney
Bailey County Re: Summoning of jurors for
P. 0. Box 286 justice of the peace court
Farwell, Texas 79325 (RQ-1698)
Dear Mr. Actkinson:
You ask a number of questions relative to the summoning
of persons for jury service in the justice of the peace
court.
In your first question you ask from what source jurors
are to be selected. In Cantu v. Samvles, 581 S.W.2d 195
(Tex. Civ. App. - San Antonio 1979, no writ), it was urged
that the clerk of the municipal court must draw the names of
prospective jurors from a jury wheel. In rejecting this
contention, the court held that the jury wheel law is only
applicable for the selection of jurors in county and
district courts in the absence of special le islation. The
court noted that article 2414, V.T.C.S., 4 (now section
62.403 of the Government Code) "provides for juries in the
justice of the peace court to be summoned orally by the
proper officer." Cantu, suvra, at 196.
Section 62.401 of the Government Code provides that the
justice of the peace shall order the sheriff or constable to
summon the number of qualified persons that the justice
considers necessary to serve as jurors. Section 62.402 of
the Government Code sets forth the oath to be administered
to the officer by the justice. The oath contains the guide-
lines to be observed by the officer in summoning the number
1. The court in Cantu noted that article 33.09 of the
Code of Criminal Procedure provides that jurors shall be
selected and summoned in criminal cases in the same manner
as juror panels are selected in civil cases.
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I
Honorable Johnny W. Actkinson - Page 2 (JM-1059)
of persons ordered by the court.2 Section 62.403 states
that the officer shall immediately notify the prospective
juror that he is required to appear for jury service at the
2. Section 62.402 provides that the justice of the
peace shall administer the following oath to the officer:
You do solemnly swear that you will, to
the best of your skill and ability, and
without bias or favor toward a party in a
case, summon the number of persons ordered by
the court: that you will summon only
impartial, sensible, and sober persons who
are qualified under the law to serve as petit
jurors; that you will not, directly or
indirectly, converse or communicate with a
juror about a case pending for trial; and
that you will not, by any means, attempt to
influence, advise, or control a juror in his
opinion in a case that may be tried by a jury
on which he serves: so help you God.
A portion of the oath requires the officer to summon
only persons "qualified under the law" to serve as jurors.
Section 62.102 of the Government Code sets out the general
qualifications for jury service, as follows:
A person is disqualified to serve as a
petit juror unless he:
(1) is at least 18 years of age:
(2) is a citizen of this state and of the
county in which he is to serve as a juror;
(3) is qualified under the constitution
and laws to vote in the county in which he is
to serve as a juror;
(4) is of sound mind and good moral
character;
(5) is able to read and write;
(6) has not served as a petit juror for
(Footnote Continued)
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Honorable Johnny W. Actkinson - Page 3 (JM-1059)
specified time and place. The officer is directed by
section 62.403 to orally deliver the summons to the person.
In your second question you ask whether the officer may
draw names from the jury wheel for justice court. No
provision is made for the sheriff or constable to draw names
from the jury wheel in selecting prospective jurors to be
summoned for the justice of the peace court.
The provisions for the use of the jury wheel, found in
chapter 62, subchapter A, of the Government Code, refer to
the use of the jury wheel only in connection with county and
district courts. See Gov't Code 55 62.004 (who draws names
of prospective jurors for county and district courts
respectively), 62.005 (observation of drawing by parties in
jury cases in district or county courts), 62.007 (receipt of
envelopes containing jury lists by county or district
judge), 62.016 (in certain counties, district judges
determine number of prospective jurors needed each week in
district and county courts), 62.017 (in certain counties,
jury panel may be constituted for service in both district
and county courts), 62.020 (use of alternate jurors in
district and county courts respectively).
Section 62.012 provides that a county or district judge
who requires a jury shall notify the county or district
clerk to "open the next consecutively numbered envelope
containing a jury list" (of names drawn from the jury
wheel). The clerk notifies the sheriff who then summons the
jurors for such courts pursuant to section 62.013. In
contrast, section 62.401 provides simply that a justice of
the peace needing jurors for his court **shall order the
sheriff or constable to summon for jury service" the
necessary number of qualified persons.
(Footnote Continued)
six days during the preceding three months in
the county court or during the preceding six
months in the district court;
(7) has not been convicted of a felony:
and
(8) is not under indictment or other legal
accusation of misdemeanor or felony theft or
any other felony.
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Honorable Johnny W. Actkinson - Page 4 (JM-1059)
We do not think that the statutory scheme of chapter
62, which makes distinct provisions for obtaining jurors for
county and district courts, as opposed to justice courts,
contemplates that jurors in justice court are to be selected
by means of the jury wheel. See also Cantu v. Samvles,
suvra.
In your third question you ask whether jurors must
reside in the justice court precinct for which the court is
established to qualify as jurors.
Section 62.102(2) of the Government Code states that a
person is disqualified to serve as a petit juror unless he
"is a citizen of this state and of the county in which he is
to serve as a juror." The oath the justice of the peace
administers to the officer under section 62.402 requires
that the officer summon persons "who are qualified under the
law." While section 62.501 of the Government Code requires
that a person must be a resident of the municipality for
which the court is established to serve on a jury in
municipal court, section 62.402 only directs the officer to
summon persons "qualified under the law" to serve as jurors
in justice court. We construe "qualified under the law" to
mean a person who meets the qualifications set forth in
section 62.102. "Qualified under the law" requires that the
person be a resident in the county. We are unable to find
any requirement that a juror be a resident of the precinct
to qualify for service in the justice court.
In your last series of questions you ask about the
methods an officer may utilize in summoning persons for jury
service in the justice court. Specifically, YOU inquire
about the validity of notifying the prospective juror
l'orally in person," by "written notice" and by "telephone
call to the [prospective] jurors."
Section 62.403 provides:
(a) The officer shall immediatelv summon
the required number of persons to appear for
jury service as ordered by the justice of the
peace.
(b) The summons must notify the person
that he is required to appear for jury
service before the justice at the specified
time and place. The officer shall orally
deliver the summons to the verson. (Emphasis
added.)
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Honorable Johnny W. Actkinson - Page 5 (JM-1059)
The word *'shalll'is an imperative term and requires the
performance of the act to be performed unless it is apparent
that the legislature intended otherwise. Halios v. Texas
Dev't of Public Safetv, 733 S.W.2d 308 (Tex. App. - Amarillo
1987, writ ref'd). Section 62.403 provides the officer
"shall orally deliver the summons to the person." Delivery
of summons by written notice is not authorized. The reguir-
ement that the officer immediately summon persons for juror
service further supports the conclusion that it be delivered
orally.
Oral is defined as "uttered by the mouth or in words:
spoken, not written." Black's Law Dictionary 987 (5th ed.
1979). t*DeliverylVis defined as "[tjhe act by which the res
or substance thereof is placed within the actual or con-
structive possession or control of another." Id. at 385.
No reason is perceived why the officer may not orally summon
jurors in person or by telephone.
SUMMARY
The sheriff or constable summons persons
for jury service in the justice of the peace
court in accordance with the guidelines set
forth in the oath administered under section
62.402 of the Government Code. The officer
is not authorized to draw names of persons
from the jury wheel for jury service in the
justice of the peace court. A juror need not
reside in the precinct for which the justice
court was created but must be a resident of
the county. The officer may summon prospec-
tive jurors for the justice of the peace
court orally in person or by calling the
individual by telephone. The officer is not
authorized to use a written notice to summon
persons for jury service in the justice of
the peace court.
JIM MATTOX '~
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
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Honorable Johnny W. Actkinson - Page 6 (JM-1059)
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 5519
Untitled Texas Attorney General Opinion
Combined Opinion