                                 ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                   March 3,2004



The Honorable Ken Armbrister                               Opinion No. GA-0161
Chair, Natural Resources Committee
Texas State Senate                                         Re: Whether a municipal court may reschedule a
P.O. Box 12068                                             qualified, nonexempt prospective juror’s jury
Austin, Texas 78711                                        service for medical or hardship reasons without
                                                           requiring the veniremember to appear in court
                                                           (RQ-01 09-GA)

Dear Senator Armbrister:

        On behalf of The Fayette County Record in La Grange, you ask whether a municipal court
may reschedule a qualified, nonexempt prospective juror’s jury service for medical or hardship
reasons without requiring the veniremember to appear in court.’

         In connection with your request, we have received a letter from the City of La Grange (the
“City”) setting out facts that the City indicates underlie the request. See City of La Grange Letter,
supra note 1, at 1. Preliminarily, the City states that its municipal court is not a court of record. See
id. According to the City, prior to September 2003, the municipal court judge interpreted the law
to preclude the court from verbally granting, prior to the specified court setting, a veniremember’s
“telephonic request[] to be excused from jury service for reasons other than the existence of a
statutory exemption or a matter of statutorily established disqualification.”           Id. Under that
interpretation, the court would grant such a request only when the prospective juror was present in
court on the date set forth in the summons. See id. In September 2003, however, the court, with the
advice of the city administrator and the city attomey,2 established a new procedure for rescheduling
a prospective juror’s jury service:

                  Under the. . . procedure, a [prospective] juror may submit a request
                  in writing prior to the date set forth in the summons for the date of his
                  or her jury service to be rescheduled for the next jury court setting.



         ‘See Letter from Honorable Ken Armbrister, Chair, Natural Resources Committee, Texas State      Senate, to Ms.
Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General (Sept. 18, 2003) (on file         with Opinion
Committee); see also Letter fromMaria Angela Flores Beck, La Grange City Attorney, to Honorable Greg     Abbott, Texas
Attorney General, at 1 (Oct. 27, 2003) (on file with Opinion Committee) [hereinafter City of La Grange    Letter].

         2See Telephone   Conversation   with Maria Angela Flores Beck, La Grange City Attorney (Jan. 13,2004).
The Honorable Ken Armbrister      - Page 2          (GA-0161)




               Thus, the [prospective] juror seeks, in writing, a rescheduling of
               his/her jury service, not an excuse from service altogether.     That
               request may. . . be considered and granted prior to the date set forth
               in the summons.

Id. at 2.

        A municipal court is established by statute in each municipality. See TEX. GOV’T CODEANN.
5 29.002 (Vernon 1988); see also id. $9 29.001, .003 (Vernon 1988 & Supp. 2004) (defining the
term “municipality” and defining municipal courts’ jurisdiction). If a defendant in municipal court
does not waive trial by jury, the judge must command “the proper officer to summon a venire from
which six qualified persons shall be selected to serve as jurors in the case.” TEX. CODEGRIM. PROC.
ANN. art. 45027(a) (Vernon Supp. 2004). A prospective juror “who fails to attend may be fined an
amount not to exceed $100 for contempt.” Id. art. 45.027(c).

                       A person is disqualified    from serving on a municipal           court
              jury if he or she:

                        (1) is less than 18 years of age;

                      (2) is not a citizen of the municipality,       county, and state in
               which the court sits;

                        (3) is not qualified to vote in the municipality,      county, and
               state;

                        (4) is not of sound mind or of good moral character;

                        (5) is unable to read and write in English;

                       (6) has served as a petit juror for six days during the preceding
               three months in the county court or during the preceding six months
               in the district court;

                        (7) has been convicted of a felony; or

                      (8) is under indictment     or other legal            accusation      of
               misdemeanor or felony theft or any other felony.

See id. arts. 35.12, .16 (Vernon 1989 & Supp. 2004); TEX. GOV’T CODE ANN. §§ 62.102,
.501 (Vernon 1998); see also TEX. MUN. COURTSEDUC. CTR., BENCH BOOK 8-13 to 8-14 (4th ed.
2001), available at http://www.tmcec.com/benchbook4.html [hereinafter MUNICIPAL COURTS’
BENCH BOOK] (listing disqualifying factors).
The Honorable Ken Armbrister         - Page 3            (GA-0161)




        A qualified veniremember may be exempt from jury service; if so, he or she may, but is not
required to, claim an exemption from serving. See TEX. GOV’T CODE AN-N. 5 62.106(a) (Vernon
Supp. 2004); see also MUNICIPAL COURTS’ BENCH BOOK, supra, at 8-14 to 8-16 (listing
exemptions). A qualified juror may establish an exemption if he or she:

                          (1) is over 70 years of age;

                          (2) has legal custody of a child or children younger than 10
                  years of age and the person’s service on the jury requires leaving the
                  child without adequate supervision;

                          (3) is a student of a public or private secondary school;

                          (4) is. . . enrolled and in actual attendance at an institution of
                  higher education;

                           (5) is an officer or an employee of the senate, the house of
                  representatives, or any department, commission, board, office, or
                  other agency in the legislative branch of state government;

                           (6) is summoned for service in a county with a population of
                  at least 200,000, unless that county uses [an electronic or mechanical
                  method of selection authorized by section 62.011 of the Government
                  Code,] and the period authorized under Section 62.01 l(b)(5) exceeds
                  two years, and the person has served as a petit juror in the county
                  during the 24-month period preceding the date the person is to appear
                  for jury service;

                          (7) is the primary caretaker of a person who is an invalid
                  unable to care for himself;

                          (8) [unless the county’s jury wheel has been reconstituted
                  since the person’s prior jury service,] is summoned for service in a
                  county with a population of at least 250,000 and the person has
                  served as a petit juror in the county during the three-year period
                  preceding the date the person is to appear for jury service; or

                          (9) is a member of the United States military forces serving on
                  active duty and deployed to a location away from the person’s home
                  station and out of the person’s county of residence.

TEX. GOV’T CODE ANN. 9 62.106(a) (Vernon Supp. 2004); see also MUNICIPAL COURTS’BENCH
BOOK, supra, at 8-14 to 8- 16 (listing exemptions). Medical excuses and other hardship excuses are
not permissible   statutory reasons for disqualification    or an exemption.
The Honorable Ken Armbrister      - Page 4         (GA-0161)




          We understand that the municipal court modeled its rescheduling procedure on the system
that may be used in county courts. See Telephone Conversation, supra note 2. Section 62.0111 of
the Government Code, in conjunction with sections 62.011 and 62.110, expressly permits a county
commissioners court to implement a system for postponing jury service in its county courts prior to
the date the venire is to appear in court. See TEX.GOV’T CODEANN. 85 62.011, .Ol 11,. 110 (Vernon
 1998 & Supp. 2004). Under these statutes, a county that implements an electronic or mechanical
system for selecting veniremembers may allow a prospective juror to respond to a jury summons
via computer, an automated telephone system, or by “appearing before the court in person.” Id.
8 62.011 l(a) (V emon Supp. 2004); see id. 8 62.01 l(a) (Vernon 1998) (permitting a commissioners
court to adopt a plan for selecting a venire using “electronic or mechanical equipment instead of
drawing the names from a jury wheel,‘). In a response by computer or automated telephone system,
the veniremember may submit information that he or she is disqualified for or exempt from jury
service or may request that his or her jury service be postponed. See id. 8 62.0111 (b). A designee
of the court may hear a prospective juror’s “reasonable excuse . . . and . . . release him from jury
service until a specified day of the term.” Id. 8 62.11 O(b) (V emon 1998); accord TEX. CODE CRIM.
PROC. ANN. art. 35.03, 4 2 (Vernon 1989) (permitting,             “[ulnder a plan approved by the
commissioners court,” a court’s designee to hear a veniremember’s excuse, and ifhe finds the excuse
 sufficient, to postpone the juror’s service). But see TEX. GOV’T CODE ANN. 8 62.11 O(c) (Vernon
 1998) (prohibiting a court or a court’s designee from excusing “a prospective juror for an economic
reason unless each party. . . is present and approves”).

        No statute expressly authorizes a municipal court to implement a rescheduling system such
as the City describes. Section 62.0111 applies only to county courts. See id. § 62.0111 (Vernon
Supp. 2004). Two statutes, article 35.04 of the Code of Criminal Procedure and section 62.107 of
the Government Code, authorize a prospective juror who is disqualified or who wishes to raise an
exemption to establish that fact before the juror is scheduled to appear in court by filing a statement
with the clerk of the court. See TEX. CODE GRIM.PROC.ANN. art. 35.04 (Vernon 1989); TEX. GOV’T
CODE ANN. 8 62.107(a) (Vernon 1998). But these statutes do not apply to rescheduling jury service
for reasons other than disqualification or exemption.

         Nevertheless, a court has inherent authority to excuse or reschedule veniremembers, even
before the date set to appear for service. See Ott v. State, 627 S.W.2d 218, 227 (Tex. App.-Fort
Worth 198 1, writ ref d). In Ott v. State the Fort Worth Court of Appeals considered whether a trial
court could excuse certain veniremembers from jury service “prior to trial on the court’s own motion
in the absence of counsel” for reasons relating to business or work, id. at 225, and reasons relating
to scheduled vacation, id. at 227-28. The court concluded that the trial court did not abuse its
discretion:

                        We think it important to note that the problems of jurors,
               presented to the trial judge in this case, are somewhat typical and
               exist in every county in which juries are selected. While jury service
               is vital and essential, and while most citizens of this state are aware
               of this, some people called for jury service on relatively short notice[]
The Honorable Ken Armbrister      - Page 5         (GA-0161)




               simply have insurmountable problems in serving in a particular week
               that must be recognized by the trial judge.

                        Prior commitments    of jurors, made sometimes weeks and
               months before their call to duty, are extremely difficult, if not
               impossible, to change or postpone. To do so, in many cases, would
               work severe hardship on the very people on which the jury system in
               this state depends. The trial court must be allowed some leeway and
               authority to use some judgment in excusing jurors entirely or in
               postponing jury service for those individuals.

Id. at 227; accord id. at 228 (concluding that the trial court did not abuse its discretion to grant
vacation requests by either “entirely excus[ing] or . . . postpon[ing] the service to another week,‘);
see also BouchiZZon v. State, 540 S.W.2d 3 19, 323 (Tex. Crim. App. 1976) (stating that a district
court’s procedure of postponing veniremembers’ service “is proper upon a request from a juror”);
cj: Matchett v. State, 941 S.W.2d 922,932 n.11 (Tex. Crim. App. 1996) (en bane) (recognizing a
court’s inherent power to adopt procedural rules for managing and administering cases).

        Given the court’s inherent authority, we conclude that a municipal court may adopt a policy
under which it may reschedule a qualified, nonexempt veniremember’s jury service for medical or
hardship reasons without requiring the prospective juror to appear in court.
The Honorable Ken Armbrister       - Page 6       (GA-0161)




                                        SUMMARY

                       A municipal court may adopt a policy under which it may
               reschedule a qualified, nonexempt prospective juror’s jury service for
               medical or hardship reasons without requiring the veniremember to
               appear in court.

                                              Very truly yours,




                                                         eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
