    OFFICE   OF THE   ATTORNEY   GENERAL   . STATE   OF   TEXAS

    JOHN     CORNYN




                                                     August 28,200l



The Honorable E. Bruce Curry                                      Opinion No. JC-0405
District Attorney
2 16th Judicial District                                          Re: Whether and when a district clerk must
Bandera, Gillespie, Kendall, Kerr Counties                        provide jury lists to litigants in civil and criminal
521 Earl Garrett Street                                           trials (RQ-0353-JC)
Kerrville, Texas 78028

Dear Mr. Curry:

         You have asked this office a series of questions concerning when the district clerk must
release jury lists to the parties in both civil and criminal actions. In examining the relevant statutes
and the cases interpreting them, we find no controlling legal authority as to when the clerk may
provide such information in either civil or non-capital criminal actions beyond the clear limitation
that it be presented to both sides when the parties have announced ready for trial. See TEX.R. CIV.
PROC. 224; TEX. CODE CRIM. PROC. ANN. art. 35.01 (Vernon 1989).* We have not been directed to,
and our research has not disclosed, “any prohibition to the District Clerk, in her discretion, providing
this list to the parties at any time after the list is prepared.“2 The legislature and the courts, which
have not spoken on this matter, have thereby effectively granted the district clerk, a constitutional
officer, discretion in it. The ultimate management of either civil or criminal trials, of course, is in
the hands of the presiding judge.

          Discretion granted to a public officer in the exercise of his or her functions is, of course, not
unbounded. You have asked, in that regard, “If the District Clerk provides the jury list to one of the
litigants, is it mandatory that the District Clerk provide the list to the other litigants at the same
time?” Request Letter, supra note 2, at 2. While there appears to be no statutory directive in this
regard, the district clerk must not show undue favoritism to any party. See, e.g., Mann v. Ramirez,
905 S.W.2d 275 (Tex. App.-San Antonio 1995, writ denied) (actions of district clerk in improperly



          ‘Article 34.04 of the Code of Criminal Procedure provides that “No defendant in a capital case in which the
state seeks the death penalty shall be brought to trial until he shall have had at least two days (including holidays) a copy
of the names of the persons summoned as veniremen, for the week for which his case is set for trial. . . .” TEX. CODE
GRIM.PROC. ANN. art. 34.04 (Vernon Supp. 2001).

         *Letter from Honorable E. Bruce Curry, District Attorney, 2 16th Judicial District, to Honorable John Comyn,
Texas Attorney General, at 2 (Feb. 21, 2001) (on file with Opinion Committee) [hereinafter Request Letter].
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excusing jurors for reasons stemming from personal relationship         with corporate representative   of
party resulted in fundamentally unfair trial).

         Generally, the organization of petit juries in the district court is governed by chapter 62 of
the Government Code. This is true in both civil and criminal cases, since article 33.09 of the Code
of Criminal Procedure provides that “Jury panels, including special venires, for the trial of criminal
cases shall be selected and summoned (with return on summons) in the same manner as the selection
of panels for the trial of civil cases except as otherwise provided in this Code.” TEX. CODE GRIM.
PROC.ANN. art. 33.09 (Vernon 1989). Depending on the county, an appropriate number of names
to meet jury requirements will be drawn either from the jury wheel by the clerk and the sheriff or
constable “in the presence and under the direction of the district judge,” TEX. GOV’T CODE ANN. 8
62.004(a) (Vernon 1998), or in counties which use a computer pursuant to section 62.011 of the
Government      Code “by random selection computer programming.”                    OFFICE OF COURT
ADMINISTRATION,DISTRICTCLERKPROCEDUREMANUAL II-5 (1998). A plan for computerized jury
selection pursuant to section 62.011 must “designate the district clerk as the officer in charge of the
selection process and define his duties.” TEX.GOV’T CODEANN. 8 62.011 (b)(4) (Vernon 1998); see
Tex. Att’y Gen. Op. No. DM-34 (1991). Section 62.012 of the Government Code provides:

                         (a) When a justice of the peace or a county or district judge
                requires a jury for a particular week, the judge, within a reasonable
                time before the prospective jurors are summoned, shall notify the
                county clerk, for a county court jury, or the district clerk, for a justice
                or district court jury, to open the next consecutively numbered
                envelope containing a jury list that is in the clerk’s possession and has
                not been opened. The judge shall also notify the clerk of the date that
                the prospective jurors are to be summoned to appear for jury service.

                        (b) On receiving the notice from the judge, the clerk shall
                immediately write on the jury list the date that the prospective jurors
                are to be summoned to appear and shall deliver the jury list to:

                          (1) the sheriff, for a county or district court jury; or

                          (2) the sheriff or constable, for a justice court jury.

TEX. GOV’T CODE ANN. 0 62.012 (Vernon          1998).

        While the point at which the jury list is opened and delivered to the sheriff is the first point
at which it would be possible for the clerk to permit access to this information to any person, section
62.012 does not expressly authorize or require such access at that time. Rule 224 of the Texas Rules
of Civil Procedure provides that “when the parties have announced ready for trial,” the clerk shall
The Honorable       E. Bruce Curry - Page 3                 (JC-0405)




write the names of the week’s jurors on separate slips of paper, place the slips in a box, draw out (in
the district court) twenty-four names, write them on two slips of paper, and present the slips to each
party. TEX.R. CIV. PROC.224. Similarly, article 35.01 of the Code of Criminal Procedure provides
that “When a case is called for trial and the parties have announced ready for trial, the names of those
summoned as jurors in the case shall be called.” TEX.CODECRIM. PROC.ANN. art. 35.01 (Vernon
1998).3 There is therefore a final point - when the parties announce ready - at which, in both civil
and criminal cases, the identities of potential jurors must be made known to the parties. The statutes
are, however, silent as to whether this information may be provided to the parties at any earlier time
after the jury list has been opened and delivered to the sheriff. We have discovered no statutory
provision which would forbid the clerk, in the exercise of his or her discretion, from providing the
parties with the list at any such time. We note that the district clerk is a constitutional officer,
elected by the voters, TEX. CONST.art. V, 5 9, and as such is vested with much discretion in the
operation of his or her office.

         As we understand, and as you suggest, parties would prefer to receive as much such
information as far in advance of voir dire as possible, in order to aid them in the process of jury
selection. See Request Letter, supra note 2 (Attached Brief at 3). We note that a similar question
was posed in Attorney General Opinion C-239 (1964)’ in which this office was asked whether a
criminal defendant in a misdemeanor case had a right of access to the list of prospective jurors for
the county court prior to the date of trial, and if not whether the county judge had the discretion to
permit the defendant such access. After reciting the statutory predecessor of Government Code
section 62.012, and noting that the only express right of access of this sort was that granted to a
capital defendant by the statutory predecessor of article 34.04 of the Code of Criminal Procedure,
the opinion noted that, while there was no absolute right of such access to the defendant, “the custom
in most counties is to make the jury list available to any attorney who requests the same on Friday
prior to the trial on Monday. We see no reason to upset this practice. . . .” Tex. Att’y Gen. Op. No.
C-239 (1964) at 3.

         Attorney General Opinion C-239 accordingly decided that since “there is no provision in [the
statutory predecessor to section 62.0121 prohibiting knowledge of the array to defendant, we are led
to believe it was not meant by the Legislature to prohibit the practice of allowing attorneys to obtain
a list of jurors. Policy in this regard should apply equally to prosecution and to defense counsel.”
Id. Noting the power of the judge over the management of the case before him, the opinion
concludes that “if the judge wishes to follow the custom of making the jury panel list available prior
to the time of the trial, he may do so.” Id. at 4. The conclusion of Attorney General Opinion C-239
remains sound. Therefore, in our view, while the district clerk must provide the jury lists when the



           3Your brief also inquires concerning the jury list referenced in article 35.11 of the Code of Criminal Procedure.
However, that list, unlike the general jury lists we are considering, is only prepared “on the demand of the defendant
or his attorney, or of the State’s counsel” by a shuffle of the general panel. TEX. CODE GRIM. PROC.ANN. art. 35.11
(Vernon Supp. 2001). It is thereupon presented to both sides. Id.
The Honorable E. Bruce Curry - Page 4               (JC-0405)




parties announce ready, the decision to provide the parties such lists in advance of that time is within
the clerk’s discretion, subject to the direction of the judge presiding. The clerk must of course show
no undue favoritism. See Mann, 905 S.W.2d at 275. While we have discovered no cases dealing
with this matter, we are persuaded that were a clerk to provide jury lists to one party in either a civil
or criminal matter and withhold such lists from the other party, a court would likely hold such action
to be an abuse of the clerk’s discretion.

         You have also asked whether the clerk may disclose personal information that has been
provided by jurors to the parties in either civil or criminal cases. In our view, two statutes are
particularly relevant to your inquiry - section 62.0132 of the Government Code, which generally
governs the gathering and dissemination of jury information, and article 35.29 of the Code of
Criminal Procedure, which limits the dissemination of such information as it pertains to jurors in
particular criminal cases.

         Section 62.0132 of the Government Code directs the Office of Court Administration to
develop and maintain a jury questionnaire accompanying the jury summons. “The questionnaire
must require a person to provide biographical and demographic information that is relevant to
service as a jury member . . . .” TEX. GOV’T CODEANN. 8 62.0132(c) (Vernon Supp. 2001). The
questionnaire is to be completed and submitted “when the person reports for jury duty.” Id. 9
62,0132(d). The information contained in such questionnaires “is confidential and is not subject to
Chapter 552 [of the Government Code, the Public Information Act].” Id. 9 62.0132(f). Information
under section 62.0132 is confidential with respect to third parties rather than litigants. “The
information contained in a completed questionnaire may be disclosed to . . . a litigant and a litigant’s
attorney in a cause of action in which the respondent to the questionnaire is a potential juror.” Id.
8 62.0132(g)(3).

        While personal information concerning jurors serving           in particular criminal proceedings is
confidential pursuant to article 35.29 of the Code of Criminal        Procedure, and may not be disclosed
by the district clerk absent an order from the trial court, article   35.29 does not preclude the provision
of such information concerning the general panel to counsel           for the purpose of voir dire. Article
35.29 of the Code of Criminal Procedure provides:

                         Information collected by the court or by a prosecuting
                attorney during the jury selection process about a person who serves
                as a juror, including the juror’s home address, home telephone
                number, social security number, driver’s license number, and other
                personal information is confidential and may not be disclosed by the
                court, the prosecuting attorney, the defense counsel, or any court
                personnel except on application by a party in the trial or on
                application by a bona fide member of the news media acting in such
                capacity to the court in which the person is serving or did serve as a
The Honorable E. Bruce Curry - Page 5             (JC-0405)




                juror. On a showing of good cause, the court shall permit disclosure
                 of the information sought.

TEX. CODECRIM.PROC.ANN. art. 35.29 (Vernon Supp. 2001).

          Article 35.29 raises two questions: first, whether its provisions are applicable to the parties
in the case; and second, whether those provisions apply to the entire venire, or to the jury ultimately
impanelled to sit in a particular case. At least one jurist has taken the view that article 35.29
prohibits the release of such information to third parties, rather than to the parties in the litigation.
Concurring in the judgment in Hooker v. State, 932 S.W.2d 712,717 (Tex. App.-Beaumont               1996,
no writ), Justice Burgess wrote, “I disagree [with the view that article 35.29 prohibits the parties
from having access to personal information about jurors]. I read the statute to only prohibit
disclosure of that information to third parties, except by application and a showing of good cause.”
Id. at 7 17. However, the weight of authority is against this view. See id. at 7 16-l 7 (majority holding
that good cause not shown for unsealing information because defendant’s trial counsel had “a couple
of thoughts” regarding trial); see also Mayo v. State, 971 S.W.2d 464,465 (Tex. App.-Fort Worth
 1998)’ rev’d on other grounds, 4 S.W.3d 9 (Tex. Crim. App. 1999); Esparza v. State, 31 S.W.3d
338, 340-41 (Tex. App.-San Antonio 2000, no pet.). “Texas Code of Criminal Procedure article
35.29 cloaks jurors’ addresses in confidentiality and prevents disclosure of those addresses except
upon a showing of good cause. . . . Plainly, article 35.29 is intended to protect jurors by keeping
their addresses and other personal information confidential in the absence of a trial court order.”
Mayo, 971 S.W.2d at 465. We therefore follow the weight of authority and conclude that personal
information concerning the jurors in a particular criminal matter may not be disclosed by the district
clerk to the parties absent an order of the trial court.

         While, as we note, the case law indicates that personal information of those who have sat on
a particular criminal jury is confidential and unavailable even to the parties absent a court order, the
cases are not generally concerned with release to the trial counsel of information on the general
panel, but see Mayo, 97 1 S. W.2d at 465 (“If article 35.29 requires an accused to carry a burden of
proving good cause before knowing whether venire members are truly challengeable as non-citizens,
then the accused is saddled with a dilemma.” dicta); and the legislative history of article 35.29
indicates that the statute was not intended to apply to access by counsel to such information during
voir dire.

        In the public hearing before the Senate Committee on Criminal Justice concerning Senate
Bill 12 - now article 35.29 - on March 16, 1993, the author, Senator Brown, described the
purpose of the legislation as to prevent convicted criminals from obtaining personal information
concerning the jurors in their trials:

                        What this bill will do, it makes personal information available
                only to the lawyer in the case and specifically it’s designed so that if
The Honorable    E. Bruce Curry - Page 6              (JC-0405)




                a criminal appeals his case after conviction, pro se . . . , then the
                personal information about the juror is not going to be a part of the
                record that is sent up for his consideration. . . .

Hearings on Tex. S.B. 12 Before the Senate Comm. on Criminal Justice, 73d Leg., R.S. (Mar. 16,
1993) (statement of Senator Brown) (audio tape available from Senate Staff Services Office).

         In reply to certain concerns raised concerning voir dire by Senator Royce West, Mr. Tom
Crumpett of the District and County Attorneys’ Association specifically indicated that the intent of
the legislation was not to prohibit the use of such information by attorneys in voir dire:

                          Our primary intent on this was not to hamstring any of the
                jury selection process. I think Senator West asked the question. I
                think it’s fairly typical when you put together juror information cards
                that information is made available to both sides. . . . I was concerned
                 originally that this bill would prevent us from doing that fact finding
                 as far as both sides finding out as much as we could about the
                background and qualifications of potential jurors and I think that’s
                why it was revised several times so that now it only applies to those
                 folks who finally are picked. . . .

Id. (statement of Mr. Tom Crumpett, District & County Attorneys Ass’n) (audio tape available from
Senate Staff Services Office). In response to these assurances, Mr. Chris Elliott of the Texas
Criminal Defense Lawyer’s Association said: “I think our concerns have basically been addressed
with this expression of intent that [the bill is] not going to affect the jury selection process and the
information available.” Id. (statement of Mr. Chris Elliott, Texas Criminal Defense Lawyer’s Ass’n)
(audio tape available from Senate Staff Services Office).

       A colloquy at second reading on April 1, 1993 between Senator Brown and Senator John
Montford is to the same effect:

                Senator Montford: I want to be sure in the analysis. I think I agree
                with what you’re trying to do, but you’re not in any way attempting
                to restrict the rights of trial counsel to select and make their jury
                selection?

                Senator Brown:    Absolutely   not.

                Senator Montford: And they have full access to this inforrnation?
                Sometimes you need to know where somebody lives in order to make
                a determination for instance on a peremptory challenge.
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                Senator Brown: And this does not interfere at all with the defense
                and prosecution seeking and getting that information. It’s just after
                the trial, what’s done with that information.

Debate on Tex. S.B. 12 on the Floor of the Senate, 73d Leg., R.S. (Apr. 1, 1993) (audio tape
available from Senate Staff Services Office).

        In the light of this legislative history, we conclude that article 35.29 of the Code of Criminal
Procedure does not apply to information regarding the general panel available to the trial counsel
for the purpose of voir dire in a criminal case, and thus does not preclude the provision of such
information to counsel for that purpose.
The Honorable E. Bruce Curry - Page 8            (JC-0405)




                                       SUMMARY

                        In both civil and criminal actions, jury lists must be disclosed
              to the parties when the parties announce ready for trial. Subject to the
               direction of the presiding judge the district clerk may, in his or her
               discretion, release such information to the parties at any time after the
              jury list has been delivered to the sheriff to summon the jurors. The
              clerk must not show undue favoritism, and may not provide the list
              to one party while withholding          it from another.      Information
              contained in jury questionnaires        completed pursuant to section
               62.0132 of the Government Code, while confidential with respect to
              third parties, is available to the litigants in the cause of action in
              question. While personal information concerning jurors serving in
              particular criminal proceedings is confidential pursuant to article
               35.29 of the Code of Criminal Procedure, and may not be disclosed
              by the district clerk absent an order from the trial court, article 35.29
              does not preclude the provision of such information concerning the
              general panel to counsel for the purpose of voir dire.




                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
