                        November 22, 1961

Ronorable Richard %. Rudeloff
County Attorney, Ree County
Beeville, Texas
                           Opinion No. WW-1198
                          Re:   Whether the County Court of Bee
                                County can legally draw a jury
                                from the jury wheel during the
                                current term of court, to be
                                used during such term.
Dear Mr. Rudeloff:
          You have requested the opinion of the Attorney General
as to whether, when a jury wheel county, for reasons not here
relevant, did not have a jury list during the preceding year and
has now prepared a proper jury list and placed the same in the
jury wheel at the proper time, i.e., between August 1 and August
15, and the County Court term began the third Monday in July, a
legally qualified jury may be drawn for such County Court from
such jury wheel in the face of Article 2096, Vernon's Civil Stat-
utes, which states that the panel for the week be drawn not less
than 10 days prior to the first day of a term of Court. Article
2096, Vernon's Civil Statutes, reads in relevant part as follows:
          "Not less than ten (10) days prior to the
     first day of a term of court, . . . the clerk
     of the county court, or one of his deputies, and
     the sheriff or one of his deputies, in the pres-
     ence and under the direction of the county judge,
     if the jurors are to be drawn for the county
     court, shall draw from the wheel containing the
     names of jurors after the same has been well
     turned so that the cards therein are thoroughly
     mixed, one by one the names of thirty-six jurors,
     or a greater or less number where such judge has
     so directed, for each week of the term of the
     . . . county courts for which a jury may be re-
     quired, . . .'I
          It was held in DeVault v. State, 159 Tex.Crim. 360,
264 S.W.2d 126 (19541, that Article 2096 was not so severely vio-
lated by drawing the names in handfuls rather than individually
as to cause reversible error in a murder prosecution.
Honorable Richard E. Ruaeloff, page 2   (~~-1198)


          It is our opinion that the DeVault case is authority
that Article 2096 is directory only and not mandatory, and that
when no jury list existed at the time required under Article
2096 compliance therewith at the earliest practicable time
woul4 be sufficient in the absence of a showing of prejudice
arising therefrom. See also Williams v. State, 164 Tex.Crim.
381, 298 S.W.2d 833 (1957).

                             SUMMARY
           Where the term of court began before a jury
      list could be placed in the jury wheel and a jury
      is drawn therefrom after the list is properly
      placed therein, the jury so drawn is a valid jury
      notwithstanding that Article 2096, V.C.S. calls
      for the drawing to be done not less than 10 days
      before the opening of the term of court,in the
      absence of a showing of prejudice.

                                Sincerely yours,
                                WILL WILSON




J-EL:wb
APPPGVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
William Colburn
Howard Mays
Dualey McCalla
REVIEWED FOR THE ATTORNEY GENERAL
BY:     Houghton Brownlee
