                      AUST~.      TEXAS

                                   .



                       April 8,    1950

Hon. R. L. Whitehead
Criminal District Attorney
Longview, Texas                   opinion Ho. V-1041.
                                  Re: The applioabilltpto
                                      Gregg County of Arti-
                                      cle 21160, V0C.3., ra-
                                      lative to selection of
                                      juries, under the sub-
Dear MrirWhitehead:                   mitted facts.
         Your request for au opinion is as follows:
         "At presentswe are seleatlng oup juries
    under Art.2094,Q.C.8. We would like to se-
    lect our juries under Art. 2116c, V.C.S. Sec.
    1 of ~rt~2116c,V.C.S. says that this Article
    applies only to such counties wherein two or
    more Distriot Courts are q alntalned.
          "The County of Gregg is composed of the
     124th Judicial District Court, and is over-
     lapped~by the 71st Judicial District Court,
     both having jurisdictionover civil and crim-
     inal matters. This would seem, In this writ*
     er's opinion, to qualify this county.
          "Under Sec.10 of Art- 2116c, V.C.S., It
     states,.thatthis act shall be cumulatiye of
     and in addition to the methods now authoriz-
     ed by the General Laws for the selection of
     a jury panel in the counties named and that
     this Article is optional with and in the dFs-
     cretion of a majority of the Distriat and
     county Judges.
          "It is this writer's opLnion that a vote
     of the Judges favoring the method instigated
     in art. 21160, V.C.S., would make that method
     appllaablcto Gregg County.
          "After making diligent search I oan find
     no cases Pelative to Art. 2116c, V.C.S* and
Hon. R. L. Whitehead, page 2   (Q-1041)


     we respeotfullyrequest that yonr office
     render an opinion as to whether this ooun-
     ty might select its jurymen under Art.21160,
     Q.C.S."
          Gregg County has a population of 58,027 inhab-
itants according to the last precedingFederal Censns.
          Artiole 2094, Q.C.S., was first enacted by the
Legislature in 1907 and amended by the Aots of 1911. It
was further amended by Ii.B. 163, Aots 4lst Leg., R. 9.
1929, oh.43, p.89, to read as follows:
           "Artiole 2094. Between the first and
     fifteenth days of August of each year, in
     each county having a population of at least
     fifty-eightthousand or having therein a
     city containing a population of at least
     twenty thousand, as shown by the preoeding
     Federal Census, the Tax Colleotor or one of
     his deputies, together with the Tax Asses-
     sor 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 Distriot Clerk or one OS his deputies,
     shall meet at the aourt house of their coun-
     tg and seleot from the llst of qualified
     jurors of such county as shown by the tax
     lists In'the Tax Assessor*8 office for the
     current year, the jurors for service in the
     District and County Courts of such county
     tar the ensuing   year in the manner herein-
     after provided.*
          Article 2116c, Q.C.S., passed in 1935 (B.B.IIl,
Acts 44th Leg., 2nd C.S. 1935, oh.&%, p.1744) Is also
applioableto oounties in the State wherein two or more
Distrlot Courts have been oreated and maintained or in
which two or more Distriot Courts may hereafter bs ore-
eted and maintained. The pertinent portion of the Act
reads as follows:
          "In each county under this law, the
     Judges of the District and Count Conrt
     shall meet together every two (23 months,
     or at suoh times as they may agree upon,
     and determine approximatelythe number of
     J-M    that are reasonable and necessary
     for Jury service In all of the District and
Eon. R. L. Whitehead; page 3 (Q-1041)


    qounty courts   _ such ~county,for each ,week
                 _ of
    dwlng a perloa of two (2) months, beginning
    ten (10) days after the date of such meeting,
    ,OP POP as many weeks in advance as they deem
    proper. After agreeing upon the number of
    weeks and upon the number of Jurors neoessary
    for each of said weeks the presiding Judge
    shall appoint a Jury Commission in acoordanae
    with and under the provisions of the already
    existing @enera Laws ~governingthe appoint-
    ment of a Jury Commission,and with the same
    qualificationsas are therein stated, who
     shall proaeed to select the number of Jurors
     for each of the weeks designated by the pre-
     siding Judge, said Jurors to be selected by
     said Jury Commission in the mode and manner,
     and with the same qualifioations,as is now
     fixed by existing Statute. The said Jury,
     so limited in number fop each of said weeks,
     after having been regularly selected by said
    Jury Commission,shall be served by the Sher-
     iff, OP any other officer authorized under
     the law to serve Jurors, to appear and re-
     port for Jury service before the said pre-
     siding Judge, so designated,for the week for
     which it has been selected. Said Jury shall
     be known as the general panel of Jurors for
     servioe in all of the District and County
     Courts of such Connty, for the respeotlve
     weeks fop whioh they are designated to.serve.
     Said JLWOPS, after being summoned shall re-
     port for Jury service before the presiding
     Judge* shall organize said panel, hear the
     exouses of said Jurors and swear them in for
     service for the week they,have been selected,
     to try all cases that may be submitted to
     them in any of said Courts."
          Article 21160, Q.C.S., further provides that
such act is cumulative of and in addition to the methods
now authorizedby general laws for the selection of a
jury panel in the aountles herein named and the adoption
of the method provided is,optional with and in the dis-
cretion of a majority of the District and County Judges


l   "Who" probably omitted.
                                                              .




Hon. R. L. Whitehead, page 4   (Q-1041)


of any county coming under the provisions of the Aot.
          Article 2094, Q.C.S., was later amended by S.B.
36, Acts 51st Leg., R.S. 1949, ch.467, p.868, and reads
in part as follows:
           "Between the first and fifteenth days of
      August of eaoh year, in each county having
      a population of at least forty-six thousand
      (46,000),or having therein a oity oontaining
      a population of at least twenty thousand (20,-
      000), as shown by the last preceding Federal
      Census, and in each county having two or more
      District Courts holding sessions therein, re-
      gardless of population,the Tax Collector or
      one of his deputies, together with the Sher-
      iff or one of his deputies, and the County
      Clerk or one of his deputies, and the Dls-
      triot Clerk or one of his deputies, shall
      meet at the court house of their county and
      seleot from the list of qualified jurors of
      suoh county as shown by the tax lists in the
      Tax Assessor's office for the current year,
      the jurors for servioe in the District and
      County Courts of suoh oountg for the ensuing
      year, in the manner hereinafter provided.*
         The 1949 amendment to Article    2094,   contained
the following emergency clause:
           "The fact that there are now some coun-
      ties in Texas which do not have the popula-
      tions provided in Article 2094, to require
      selections of jurors from a jury wheel, but
      have two or more District Courts, holding
      sessions therein, where, at present, each
      Dlstriot Judge has to appoint separate jury
      commissionersto select jurors for his par-
      ticular court, and such prooeeding results
      in confusion and an unfair distributionof
      jury servvioe,and often in duplicationain
      the separate jury lists for swh Courts,
      create an emergenoy . . .'
          In Popham v. Patterson, 121 Tex. 615,     51 S.W.
2d 680 (1932), the Court said:
           "In construing statutes it is the duty
      of the court to asoertain the legislative
Hon. R. L. Whitehead, page 5   (Q-1041)


    intent and, when swh intent is onoe arriv-
    ed at, it should ba giveneffeot; in faot,
    swh intent is the law. In determiningthe
    legislativeintent, the court should not look
    alone to any one phrase, olauae, or sentenoe
    of the Clot,but to the entire act; and this
    includes the caption, the body of the aot,
    and the emergenog olause. In this oonneotion
    we hold that, even when the emergenay olause
    cannot be given effect as such, still its pro-
    tisions may be looked to if they aid the court
    in asoertainingthe legislativeintent. . . .
         “As to the question whether the sot of
    1931 repeals the act of 1930, we are of the
    opinion that it does. In this oonnection it
    will ba noted that the sot of 1931 is a lat-
    er aot, and, in 80 far as prescribingthe
    terms of offioe is concerned, it ahaolutelf
    conflicts with the 1930 rot. The former aot
    fixes the term of office at four years, while
    the latter act fixes suoh term at two years.
    The sot of 1931 does not mention that of 1930,
    but in so far as the term of office is oonoern-
    ed, the two aots are absolutely antagonistlo
    to each other. It follows that the letter sot
    repeals the former by implioation.*
Also see: Parshall 8. State, 62 Tex. Grim. 177, 138 S.W.
                                 70 Tex. Grim. 307, 159
                          z: Terrell,
                             Southwestern
                                      118 Gas
                                          Tex.and
                                               463,
                                                  Eleo-
                                                     1.6
                                   26 b75 (1946); A.G.

          Inasmuoh as Artiole 2094, as amended in 1949,
is mandatory and la a later expresslou of the Legisla-
ture than Article 21160 and in view of the inoonslaten-
cy between Articles 2096 and 216,   "it follovs that the
latter Act repeals the former by implioation." This is
supported by the emergewy olause in the 1949 amendment
to Artiole 2094, evidencing an intention of the LegisIa-
ture for the method provided to be exclusive in select-
ing juries in the counties ooming within the p~ovisiorm
of the Aot.
          Subsequent to the repeal of Artiole 2116~ by
the amendment to Aptiol'e2094 in 1949, Artiale 2094 was
amended by H. B. 36, Acts 518% Leg., 1st C. S., 1950,
Eon. R. L. Whiteheed, page 6     (Q-1041)


effectiveHaroh 3, 1950. This amendment,?whlchreenact-
ed Article 2094 and added a provision excluding counties,
with a population of less than 24,000:inhabitantsand
with two District Courts from,the provisions of the hat,
has no effect on the oonclusionareaohed herein.'
          Therefore, it is our opinion that the,provi-
siona of Artiole 2094 will prevail and will govern the
method of jury selection in Gregg County.
                      SlEOdARY
          Artiole 2094, Q.C.S.; and Article 2116c,
     Q.C.S., whioh provide a method o-f _jury
                                          .   selec-
     tion in Gregg County are ln oo~llot    ano an-
     tagonistio to each other. Artiole.2094,being
     a later expression of the Legislature, ~111
     prevail over Artiole 2116c, and the method of
     seleotlon for juries in said county is by the
     system oommonly referred to as the "Jury Wheel
     Law."      am v. Patterson, 121 Tex. 615, 51
     S.W.2d      (1932);Parshall v. State, 62 Tex.
     Grin. 177, 138 S.W. 759 (1911); Robertson v.
     State, 70 Tex. Grim. 30              713 (l!XY)
     'poppeendv. Terrell, 11P Ti? k:*      16 S.W.2d'
      Ob3 (1929). State v. Southwester&   Gas and
     Electric Co&any 145 T       24 193 3 ti 2d 675
       946); A.G. Opi&on no?+-996, Janu& 26,
     1950.
                                     Yours   very   truly,

                                       PRICE DARIRL
APPROQRD:                            Attorney General '
J. C. Davis, Jr.
County Affairs Division
Charles D. Mathews
Rxeoutive Assistant                           Aaslstant
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