:




                          ORNEY            ENERAL

                         OF   TEXAS




                              September 21, 1950

    Han. Wm. L. Taylor                 opinion   Ho0 v-1107.
    County Attorney
    HaPrison county                    Ren Legality of selecting
    Marshall, Texas                        lists   of petit jurors
                                           POP each jury week
                                           rather than for each
    pear Sir:                              calendar week.
              You request an opinion from this office   concern-
    ing the interpretation  of Article 2097 of Vernon’s Civil
    Statutes o We quote from your brief as follows:
                aHa~~is~n County, under Article    2094 as
         amended by the First Called Session of the
         51st Legislature,    has had to begin use of
         the jury wheel.     It has been the practice   in
         this County for a number of years to draw
         some three or four jury lists    for each term
         of the Mstrlct     Court and approxtitelg    the
         same number for each term of the County Court.
         Because the lltlgation    in this County does not
           ustifg drawing a jury list for each week of
         i he court term, only the necessary number of
         jury lists    have been drawn.
                “The Mstrlct    Clerk has asked me to get
         your interpretatZon      of Article 2097 of the
         Revised Civil Statutes of Texas.           This Stat-
         ute provides in part that after the lists            of
         the names have been drawn, that each list
         shall be sealed in a separate envelope and
         each envelope indorsed as follows:            ‘List of
         the Petit Jurors for the               Week of the
                  Term of the          c         of        coun-
         md        provides th&&ese          blanksi3hlall be
         filled   in properly.     The writer has instruct-
         ed the Mstrict      Clerk that In his opinion the
         law would be fully and substantially           caplied
         with if the blanks were filled          In as follows:
          tList of the Petit Jurors       for the First Jury
         Week of the September Tern! of the Mstrlct
         Court of Ha-County”,           it being the writer’s
         interpretation    that this list of jurors could
Hon. Wm. L. Taylor,    page 2   (v-1107)


     be used for the first   jury week of the term
     even assuming that the first   jury list was
     not needed and not called until the 5th, 6th,
     or 7th week of the tern; and the second list
     called could be filled   in %ist of Petit Ju-
     rors for the Second Jury Week of the Septem-
     ber Term of the Mstrict    Comt of Harrison
     county’, even though this list were not called
     until the 10th or 11th week of the tern.      0 e .*
           you further state that the Mstrict   Clerk feels
there is a conflict   between Articles 2097 and 2117, V.C.S.,
and you also request our opinion on this question.
          Articles    2096, 2097, and 2117, V.C,S.,     provide:
            Art. 2096:     ‘Rot less than ten days prior
     to the first      day of a term of court,~ the dis-
     trict    clerk or one of his deputies,      and the
     sheriff,     OF one of his deputies,     in the pres-
     ence and under the dfrection         of the district
     judge, if the jurors are to be drawn for ,the
     district     court, OP the clerk of the county
     court, OP one of his deputies,         and the sher-
     iff,   OP one of his deputies,       in the presence
     and under the direction       of the county judge,
     If the ~UPOPS are to be drawn for the county
     cot&,     shall draw from the wheel containing
     the names of jurors,      after the same has been
     well turned so that the cards therein are thor-
     oughly mlxed, one by one the names of thirty-
     six jurors,     or a greatep or less number where
     such judge has so directed,        for each week of
     the term of the district       OP county courts for
     which a jury may be required,         and shall record
     such names as they are drawn upon as many sep-
     arate sheets of paper as there are weeks for
     such term OP terms for which jurors will be
     required e At such drawing, no person other
     than those above named shall be permltted to
     be present o The officers       attending such draw-
     ing shall not divulge the name of any person
     that may be drawn as a jurop to any person.”
           Art. 2097: “The several lists  of names
     so drawn, shall be certified  under the hand
     of the clerk OP the deputy doing the drawing,
     and the district or county judge In whose
     presence said names were drawn from the wheel,
bon, I&I., L. Taylor,   page 3   (V-1107)


     to be the list drawn by said clerk for the
     Said several weeks, and shall be sealed up
     in separate envelopes lndorsed,      PLiSt &$t;t
       urors for the        week of the
     I!he        court??-        county,rTpiili       in
     the blanks properly)=       the clerk doing 2 he
     drawing shall write his name across the seals
     of the envelopes and shall then lmtnediately
     deliver the same to the judge In whose pres-
     ence such names were drawn, or to his succes-
     SOP In office    in case such judge dies before
     such delivery    can be made to him,”
           Art. 2117:   "At any time when the Judge
     of the County OP Mstrict     Court needs a jury
     for any particular   week of such Court, he
     shall notify the Clerk of such Coupt to open
     the next consecutive   unopened list of jurors
     In his possession,   and Shall direct him as to
     the date for which such jurors shall be sum-
     monsed. Such notice shall be given to the
     Clerk within a reasonable time prior to the
     time when such jurors are to be sununonsed.
     The Clerk shall immediately note on the list
     the date for which the jurors    are to be sum-
     monsed, and deliver   said list to the sheriff.
     On receipt  of such list,  the sheriff  shall
     lmmedlately notify the several persons named
     therein to be in attendance on Court on the
     date so designated by the Judge.’
           It 1s observed that Article      2096 provides that
the names of jurors shal,l be drawn from the ~jury wheel
*for each week of the term of the district       OP county
courts for which a jury xbe        required."    This lndl-
cates that there would be no need to draw names from
the jury wheel for those weeks of the term for which a
jury is not required.    Therefore,   we are ~ln accord with
your opinion that there would be a substantial        compli-
ance If the envelope containing the list of names drawn
from the jury wheel is $.ndorsed as outlined by you.          We
believe we are supported in this view when the statutes
relating  to challenges  of jury panels are considered.
          Article 608, V.C C.P., provides for challenge
to the array in capital cases and is as follows:
           “Either party may challenge the array
      only on the ground that the officer   susanon-
      ing the jury has wilfully  sununoned jurors
Ron. Wm. L. Taylor,       page 4   (V-1107)


        with a view to securing a conviction      or an
        acquittal.     All such challenges must be in
        writing setting forth distinctly      the grounds
        of such challenge.      When made by the defend-
        ant, it must be supported by his affidavit       or
        the affidavit     of any credible person.   When
        such challenge is made the judge shall hear
        evidence and decide without delay whether OP
        not the challenge shall be sustained.       This
        article    does not appl when the jurors    sum-
        moned have been selec e ed by jury commlsslon-
        era.”
              Article   641, V.C.C.P.,     relating   to noncapital
cases    provides:
              “The array of jurors may be challenged
        by either party for the causes and in the
        manner provided In capital  cases,”                             __ ~~.
                                                                            ,.-~
          Rule 221 of Vernon”s           Texas Rules of Civil    Pro-
cedure provides:
                “When the jurors summoned have not been
        selected    by jury cormnissloners or by drawing
        the names from a jury wheel, any party to a
        suit which is to be tried by a jury may, be-
        fore the jury Is drawn challenge the array
        upon the ground that the officer      smumoning
        the jury has acted corruptly,      and has wllfnl-
        ly summoned jurors known to be prejudiced
        against the party challenging      or biased in
        favor of the adverse party.       All such chal-
        lenges must be in writing setting forth dls-
        tlnctly   the grounds of such challenge and
        supported by the affidavit      of the party OP
        some other credlble     person.   When such chal-
        lenge is made, the court shall hear evidence
        and decide without delay whether or not the
        challenge shall be sustained.*
             The above statutes and Rule have reference   to
those jurors sunsnoned by the offiaer,    other than those
selected    by a jury commission or those drawn from the
jury wheel, because in these latter instanoes the offl-
cer has no discretion    as to which persons he will sum-
mon, but must summon only those persons whose names have
been selected by the jury commission or drawn from the
  ury wheel and which appear on the list furnished him by
i he Clerk.
Hon. Wm. L. Taylor,   page 5   (V-1107)


           In Roundtree v. Gilroy  57 Tex, 176, 180 (18%2),
where there was a challenge to tie array which had been
selected  by a jury coEa@ssion, it is staied:
           “The statute provides how, and for what
     causes, a challe     e to the array may be made.
     It provides that Y any~party to a suit which is
     to be tried by a jury, may, before the jury
     Is drawn, challe     e the array of jurors upon
                       “&
     making it appear hat the officer      swmonLng
     the jury has acted corruptly,     and has will-
     fully summoned urors known to be prejudiced
     against the par2 y challenging,    OP biased in
     favor of the adverse party.”      R, S., 3074.
     Neither of the grounds of challenge given by
     the statute were relied    upon la this cause
     and none others exist,    and the cgurt did not
     em in overruling    the challenge.
Accopd, Galveston.  11. & S. RY. V. Yorth,      116 S-W. 365
(Tex.Civ.App.  1909, error ref.).
          Also in Roberts v. State,        17 S.Y.   450, 451 (TAX.
Grim. 1891), It Is stated:
           “Statutes directing   the mode of proceed-
     in by public officers     are directory,    and aPe
     no & to be regarded as essential    to the valid-
     ity of the proceedings    themselves,    unless SO
     declared in the statutes.’
          We agree with you that the lists  of petit ju-
rors     be selected for each jury week rather than each
calendar week of the term of court and we also agree that
there is no conflict between Articles  2117 and 2097.


          Lists of petit jurorsmay be selected
     for each jury week rather than each calen-
     dar week of the term of court.
APPROVED:                                 Yom23 very truly,
J. C. Davis, Jr.                            PRICE IMIEL
County Affairs  Mvlslon                   Attorney General
Everett Hutchlason
Executive Asslstant
Charles D. Mathews
First Assistant
BAlliw
