Honorable Franklin Smith                        OpinZon No.       ,M- 734
County Attorney
Nueces County Courthouse                        Re:   Refilling     destroyed     jury
Corpus Christi, Texas 78401                           wheel.

Dear Mr.   Smith:

        This is in response to your inquiry      concerning       the refilling   of
the jury wheel in your county.

         You have stated that the inclement weather has caused the gummed
labels which were used to fill your jury wheel to become so badly stuck
together as to effectively   “destroy”   the contents.  You have also outlined
the difficulty of re-constructing    the contents of the jury wheel from several
                                            ‘.
lists.   You then ask the following questtons:

       1. If the officials   of Nueces County who are responsible
       for furnishing the jury whee~l, i. e, P Tax Assessor,         Sheriff,
       District Clerk and County Clerk,         determine that the con-
       tents of the jury wheel have been “destroyed”          and that such
       wheel should be refurnished.        and such officials determine
       that the voter registration    list fairly and reasonably      re-
       flects a cross-section    of the population of the county suit-
       able in character and intelligence       for jury duty, and the
       use of the voter registration      list exclusively  is not tanta-
       mount to a subterfuge to discriminate         against identifiable
       elements of the population,      is it legally permissible     for
       them to refurnish the jury wheel using only the voter regis-
       tration list, in view of Article      2q94, et seq, P Revised Civil
       Statutes of Texas?

        2. In the event this question is answered in the negative,
        what are the proper sources from which jurors’ names
        should be taken?




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Honorable   Franklin      Smith,   Page   2    (M- 734)



        Article   2094,    Revised   Civil    Statutes,   provides   in pertinent   part:

        “0 . D The tax collector   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 District Clerk or
        one of his deputies,  shall meet at the Courthouse    of their
        county and select from the list of qualified jurors of such
        county as shown by the tax lists in the Tax Assessor’s
        office for the current year, the jurors for service     in the
        District and County Courts of such county for the ensuing                      ~,~I
        year, in the manner hereinafter    provided.”    (Emphasis
        added. )

        We make     no comment       as to the validity     of your factual   presump-
tion.

        We feel that the following language from Northern Texas Traction
Co. v. Bryan, 294 S. W. 527, 530 (Tex,Comm.App,       1927, Opinion adopted
by Sup. Ct. ), is controlling:
                                                               .’
              “In the Original Jury Wheel Act of 1907 there was
        disclosed   no purpose on the part of the Legislature       to
        modify these pre-existing      statutes in their application
        to the class of counties to which the act related,       OP to
        render unavailable     for jury service in these counties any
        man having the qualifications      prescribed   in such statutes,
        The primary purpose of said act as may fairly be gathered
        from the act as a whole, was to abolish in counties con-          .
        taining a city of large population the element of discretion                  ~’
        that is involved in the selection.     by jury commissioners,
        of the individual jurors to make up jury panels and to sub-
        stitute a mode of procedure for securing jury panels by
        mechanical     means,   whereby the exercise     of choice in the
        selection of men for jury service is eliminated.          That 2
        was the intention of the Legislature      to provide means for
        the collection   of the names of all men in the county who
        had the qualifications    of jurors under existing law, and
        for the placing of these names in the jury wheel from which




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Honorable   Franklin   Smith,   Page   3    (hl- 734)



       jury panels were to be drawn from time to time as pro-
       vided in the act appears with reasonable           certainty from
       the title and body of the act.        The title recites the purpose
       of the act to be “to provide for the selection of jurors in
       all counties in Texas having a city or cities therein,
       which city or cities contain a population,          aggregating
       20,000     or more people”; and to repeal,        so far as the
       above-mentioned        counties are affected by them, the pro-
       visions of existing statutes relating to the selection of
       jurors by Jury Commissioners.             Section 1 of the act
       provided that the officers designated therein shall “select
       from the qualified jurors of the county the jurors for ser-
       vice in the district and county courts in such county for
       the ensuing two years,        in the manner hereinafter       provided.”
       Section 2 provided,       as is now provided in the first clause
       of article 2095 quoted above, that “the aforesaid            officers
       shall write the names of all men who are known to be qual-
       ified jurors under the law, residing in their respective
       counties,     on separate cards of uniform size and color,
        writing also on said cards, whenever possible,            the post-
       office address of the jurors so selected.”           Section 3 pro-
       vided for the deposit of these cards in the jury wheel, as
       is provided in article 2095 quoted above; and the remaining
       sections of the act provided the mode of drawing jury panels
       from the wheel, by a different set of officers,           from time to
       time as needed by the courts.          It is to be observed that the
       only means afforded by the act for the ascertainment               and
       collection    of names to be placed in the jury wheel was the
       personal knowledge of the officers designated.              These officers
       were under no specific duty to resort to any other expedient
       than mental operations        in attempting to call to mind the names
       of all those men known to them to be qualified jurors of the
       county.     This being the case, the number of men rendered
       available for jury service,        by having their names placed in
       the jury wheel, was subject to be regulated by the extent of
       information     possessed    by said officers and the powers of
       recollection     of these officers,    unaided by reference      to any
       other source of information.
             “[l]   In 1911 (chapter 82) the Legislature        amended
       article 1 of said act by replacing the clause thereof which



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Honorable   Franklin   Smith,    Page   4    (M-734)



       has been quoted with the clause of article 2094 set out
       above.     Aside from changing the time of filling the jury
       wheel from every second year to every year, the only
       change effected in the Jury Wheel Law by said amendment
       was to require said officers to look to the tax lists in the
       tax assessor’s       office in making selection of names to be
       placed in the jury wheel; but did not relieve them of the duty
       to place in the jury wheel the names of all men residing
       in the county who were known to them to be qualified jurors
       under the law, as was prescribed               by section 2 of the original
       act.   We think, therefore,          that the provisions      of articles
       2094 and 2095 contemplate            a reasonably     diligent effort,     on
       the part of the officers designated therein,              to collect and
       place in the jury wheel the names of all men in the county
       having the qualifications         of jurors as prescribed        by the
       statutes on that subject,        to the end that these men shall be
       available as jurors when jury panels are drawn from the
       wheel.     The information        contained in the tax lists in the tax
       assessor’s     office for the current year is but an aid provided
       by law for the performance             of his duty.
             “There is no room to doubt that the officers who are
       required to fill the j,ury wheel have no authority to arbitrarily
       withhold from the wheel the names of men appearing on the
       tax lists in the tax assessor’s           office, who are known by such
       officers to be qualified jurors of the county.               It is further-,
       more reasonably         clear,   however,      that these officers have
       authority under the law, and it is their duty, to place in the
       wheel the names of all men who, through any other means,
       are found by them to be qualified jurors of the county.                   In
       the exercise     of reasonable       diligence in the performance           of
       their duty in this respect,         it is proper for said officers to
       have recourse       to the latest approved tax rolls of the county.
       This course was pursued on the occasion in question here,
       and the requirements          of law were substantially         satisfied in,
       all respects.
             1’[2] It is deemed proper to say here that, in seeking the
       legislative    intent in the clause of the statute in question,              we
       have kept in mind the rule that a statute should not be given
       a meaning which renders its validity doubtful, if it be reason-
       ably susceptible       of another meaning.         If, as contended by

                                                                                     ?.

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    Honorable   Franklin   Smith,   Page   5   (M-734)    r’



            counsel,   the clause in question has for its purpose the ex-
            clusion from jury service,      in counties containing a city
            with the population named in the act, of all men whose
            names do not appear on the tax lists in the assessor’s          of-
            fice, irrespective    of other qualifications    possessed,  the
            validity of the clause would be open to doubt.         The Legis-
            lature has undoubted authority to prescribe,         by general
            law, the qualifications    of jurors.    But, since we have been
            unable to discover any relation between a man’s capacity
            and fitness for jury service and the size of population of
            the county in which he resides,       or of a city of such county,
            we should entertain grave doubts as to the constitutionality
            of a law which undertook to establish a standard, by which
            the capacity and fitness of men for jury service are deter-
            mined, which varies in the different. counties of the state,
            with no basis for such variation other than population.          our
            interpretation   of the meaning and purpose of the clause in
            question frees it of this doubt.”      (Emphasis added. )

             In view of the foregoing authority,       that portion of Article 2094 re-
    ferring to use of the tax rendition list is to be construed as an aid, and the
    proper interpretation      of the statute is that it does not justify the use of the
    voter registration    list as the sole or only source to refurnish the jury wheel.
    Article 2095, Vernon’s       Civil Statutes,   directs the officials to place into the
    jury wheel “the names of all persons who are known to be qualified jurors
    under the law, residing in their respective          counties.”     Article 2133, Vernon’s
    Civil Statutes,  provides that the “failure to register to vote as required by
    law shall not be held to disqualify a ~ o for jury service in any instance.”
    Since the Legislature     has recognized     and directed that tax lists (rendition
    lists) shall be used, public officials are required to follow such directory
    provisions   and it is to be legally presumed that they will do so.           This is not
    to say, however,    that failure to do so will necessarily         result in reversible
    error of a case where harm is not shown to have resulted to the defendant.
    See Harrington v. State, 424 S. W. 2d 237, 243-244             (Tex.Civ.App.     1968).

             To require officials arbitrarily   to use voter registration  lists only
    and to prohibit use of tax rendition lists and other sources is tantamount to
    preventing qualified jurors from being selected in the jury wheel only because
    of their failure to register to vote.    Such action would violate express legis-
    lative intent and direction in Article 2133.     We, therefore,    must reject such



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Honorable   Franklin   Smith,   Page   6   (M- 734)



a construction   and apply that construction      which will harmonize    the statutes.

         It is, therefore,    our opini,on that the jury wheel in Texas may not
be filled by reference     to the voter registration   list as the sole eource for
jurors,   since the officers    required to fill the jury~wheel have an affirma-
tive legal duty to exercise     reasonable   diligence to place therein all,who may
be found by them,to be qualified jurors,        with the right of recourse  to the
latest approved tax rolls of the county as well as ‘the voter r~egistration list.

        We are unable to answer your second question as it necessarily~~re-
quires factual determinations   this office has no authority to make.,    For
general guidelines  in this regard,  you are referred to the’cited,authorities.



                                 SUMMARY


             Where the contents of a jury wheel have been “destroyed”
        it must be refilled under the provisions    of Article    2094 and
        not by reference   solely to the voter registration    list.
                            .,,




                                                          era1 of Texas


Prepared    by Howard M. Fender
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,     Chairman
W. E. Allen,     Co-Chairman
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    Honorable   Franklin    Smith,   Page   7   (M- 73+)




    Jay Floyd
    Max Flusche
    John Reese
    Jack Sparks

    MEZADE F. GRIFFIN
    Staff Legal Assistant

    ALFRED    WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant




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