                      The Attorney              General             of Texas
                                            July   7,    1978

JOHN L. HILL
Attorney General


                   Honorable A. D. Clark, III                       Opinion No. H- 1204
                   Criminal District Attorney
                   Smith County                                     Re: Repeated service on justice
                   ‘Qler, Texas 75702                               court juries.

                   Dear Mr. Clark:

                          The Smith County Auditor has questioned jury-service         payments to
                   certain jurors who have been repeatedly appointed to serve in justice courts,
                   and accordingly you ask: “Is the [repeated] use of the same jurors [in a
                   justice court] a violation of Texas Rules of Civil Procedure . . . ?‘I

                         Rule 523, Texas Rules of Civil Procedure, states that all rules governing
                   the district and county courts shall also govern the justice courts insofar as
                   they can be applied, except where otherwise provided by law or by the rules.
                   Generally, the Jury Wheel Law governs the selection of jurors in district and
                   county courts. See
                                   -   V.T.C.S. arts. 2094 - 2ll8; Tex. R. Civ. P. 223 - 225.

                         That law, however, appears inapplicable to justice court juries. Names
                   can be withdrawn from the jury wheel only to compose lists for district court
                   and county court panels, and only under the direction of a district or county
                   judge. V.T.C.S. arts. 2096, 2101. Cf. Texas Electric Service Company v.
                   3,      494 S.W.2d 271 (Tex. Civ. AppT El Paso 1973, writ ref’d n.r.e.1 (illegal
                   to use district court panel in county court).

                         Since 1876 it has been the statutory duty of a justice of the peace to
                   order the sheriff or constable to summon a number of legally qualified jurors
                   to attend as a jury whenever there are any jury cases pending for trial.
                   V.T.C.S. art. 2413. The sheriff or constable is sworn to select none but
                   impartial, sensible, and sober men having the qualifications     of jurors under
                   the law, and to do hit without bias or favor toward any party.      V.T.C.S. art.
                   2413. -Cf. former article 2106, V.T.C.S. (oath of jury commissioner).

                         A person is a “qualified juror”     if the tests    of articles 2133 and 2134,
                   V.T.C.S., are met. Although article         2133 makes     it a qualification that a
                   person not have served as a juror in      the district    court or the county court
                   within certain preceding time periods,     the statutes    do not make prior service




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    Honorable A. D. Clark, Ill   -   Pege 2    (B-1264)



    as a juror in the justice court a disqualification.  In practice, the Code of Criminal
    Procedure contemplates that all cases’in such courts may be heard by the same
    jurors. Code Crim. Proc. art. 45.25. A justice court juror is disqualified, however,
     if the juror sat as a petit juror in a former trial of the same case or another case
    involving the same questions of fact. V.T.C.S. art. 2134. Cf. Alvarado v. State, 508
    S.W.2d 74 (Tex. Crim. App. 1974) (prior service in district=urt);      Man m v. State
                                                                          .+j
     493 S.W.%d 798 (Tex. Crim. App. 1973) (no prior service qua11 matton waived ;
    Natural Gas Pipeline Co. of America v. Mitchell, 440 S.W.2d 415 (Tex. Civ. App. -
    Beaumont 1969, writ ref’d n.r.e.) (use of jurors with prior service not abuse of
    discretion).

            Jurors for jury service in a justice court are summoned orally by the officer,
     V.T.C.S. article 2414, and if they fail to appear, or if the jury is otherwise
    incomplete, the justice may order the officer to summon others. V.T.C.S. article
    2418: Tex. R. Civ. P. 552. Cf. Code Crim. Proc. arts. 45.25. 45.29 (criminal iurv in
    justice court). Juries in ju&e       court, thus, are often “picked-up; juries. L-1
                                                                                     Cf *St
    Louis Southwestern Ry. Co. of Texas v. York, 252 S.W. 890 (Tex. Civ. App. -
    Beaumont 1923. no writ) (objections to oicked-un iurv in counts court waived). If
    litigants believe the office-r summoning the jury has acted-corruptly,          and has
    willingly summoned jurors known to be prejudiced or biased, they may challenge the
    array. Tex. R. Civ. P. 221, 547. Or individual jurors may be challenged for cause.
    Tex. R. Civ. P. 549. Cf. Code Crim. Proc. art. 45.28. But each juror in a justice
    court is entitled to reave      not less than five dollars nor more than thirty dollars
    per day for each day or fraction of a day that he serves as a juror or attends court
     in response to the process of the court. V.T.C.S. art. 2122. There are no provisions
    to deny a juror pay because of repeated service. Your question is directed to the
     Rules of Civil Procedure and accordingly we do not address any question which
     might arise in a criminal trial.

                                       SUMMARY

                The repeated use of the same jurors in a justice court is not
                a per   violation of the Texas Rules of Civil Procedure.

                                                   Very truly yours,   ,




    APPROVED:



?
    DAVID M. KENDALL, First Assistant




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C. ROBERT HEATl?,$hirman
Opinion Committee

jsn




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