                                   @ffice     of tfie Zlttornep         @enera
                                                &date of ZlGexas

DAN MORALES
 ATrosNn GsNER*L                              August 29.1991




     Honorable T&n Curry                                Opinion No.       DM- 34
     Crimid District Attorney
     Tarrant County                                     Re: Division of authority over the selec-
     200 West Be&nap Street                             tion of prospective jurors between a
     Fort Worth, Texas 76196-0201                       district clerk and a jury administrator
                                                        (W-2178)


     Dear Mr. curry:

             You request our opinion on questions regarding the. Tarrant County
     Commissioners Court’s adoption of a system for the selection of prospective jurors
     and the creation of a position called “Jury Administrator-Bailiff.” You inform us
     that the commissioners court, by formal order adopted in 1989, instituted a juror
     service selection system that employs interchangeable juries -- called a “general
     panel - and an electronic or mechanical method of selecting names of persons to
     serve on the general panel.* Pursuant to section 62.011(b)(4) of the Government
     Code, tbe 1989 order of the commissioners court expressly designated the district
     clerk as “the officer in charge of the selection of jurors” and assigned the district
     clerk the following duties:

                    .(l) to receive from the Elections Administrator for Tarrant
                     County a list containing the names of all persons appearing on
                     the county voter registration list to be used as the jury
                     selection list for the following year;

                    (2) to select the names of prospective jurors from the list as
                    directed by the district judges with the aid of electronic or
                    mechanical equipment; and



                ‘1nterchmgeab1c juries may be impaneled to serve aU district, county, and statutory county
      courts pursuant to section 62.016 of the Government Code, which authorizes their use in counties with
      at least three district or crimii  district courts. The use of electronic or mcchanicai equipment to
      select names of persons for jury service is authorized and governed by section 62.011 of the
      Government Code.




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               (3) to deliver the list of names so selected to the bailiff of the
               central jury room.

The order also provides that the judges shall appoint a bailiff “to be in charge of the
Central jury room and the general panel.” The appointment of a bailiff to perform
these duties is authorized by section 62.019 of the Government Code in counties
that have opted to use interchangeable juries pursuant to section 62.016 of the
Government Code, as is the case in Tarrant County.

        In April of 1990 the commissioners court approved the hiring of an individual
to the position of “Jury Administrator.” Your letter implies that this action was in
Wfillment of the 1989 order and that the jury administrator was therefore
appointed pursuant to section 62.019.2 The incumbent in this position is appointed
by and reports to the district judges and is assigned duties corresponding to those of
the bailiff under section 62.019 -- e.g., the management of the jury room and the
notification of prospective jurors by mail. See Gov’t Code 5 62.019(d) (delegating
similar tasks to the bailiff of the central jury room). According to the job
description for the position, the jury administrator also performs duties that
arguably are associated with the selection of the names of prospective jurors, such as
coordinating voter lists for jurors, disbursing payments to jurors, and coordinating
the implementation and supervision of the “one day/one jury” system.3

       You ask whether the adoption of the juror service selection system and the
appointment of the jury administrator with the duties described in the job posting
infringe on the authority of the district clerk over the jury selection process. The

         2You thus refer to the position as “Jury Administrator-Bailiff.”       The job posting and order
authorizing the tilling of this position, however, refer to the position only as ‘Juy Administrator.” This
suggests a basis other than section 62.019 for the hiring of the jury administrator, and our answers to
your questions that follow will account for rhii contingency.

         3Accordiag to the job description for the position, the jury administrator performs the
following functions (which include functions that may b-c assigned to a bailiff under section 62.019):
(1) coordinates with personnel from Data Services to design a PC network; (2) coordinates with
Elections personnel regarding voter lists for jurors; (3) coordinates with Tax Assessor-Collector
regarding juror ,exemptions; (4) notities prospective jurors by computer mail outs; (5) disburses
payments to jurors and coordinates with Auditor’s Oftice regarding fee disbursements; (6) manages
the jury room; (7) supervises support staff; (8) meets with District Judges oo reports and
management; (9) develops and monitors the budget; (10) coordinates the implementation and
supervision of the one day/one jury system; (11) plans and develops software for one day/one jury
system; (12) participates in long-range planning; and (13) performs all other related duties assigned.




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central issue raised by your request is whether the district judges may assign to the
jury administrator any duties associated with the selection of prospective jurors
when the county employs mechanical or electronic equipment as an aid in the
selection process. We conclude that under the facts you describe, the district clerk
is required by statute to be placed in charge of the juror selection process in Tarrant
County and that the jury administrator may not be assigned specific duties regarding
the selection of names of prospective jurors.

        Under section 62.011, a written plan must be submitted by the district judges,
must be adopted (or rejected) by the commissioners court, and must comply with
several specific requirements.4 Most important for our purposes, the plan must
expressly “designate the district clerk as the officer in charge of the selection process
and define his duties.” Id $62.011(b)(4). While it does not appear that the
commissioners court has any discretion to amend the plan submitted by the district
judges, see Attorney General Opinion M-911 (1971) at 11, the commissioners court
does have final authority to adopt or reject the plan. Dirtrict Judges v.
Commisioners Court of Collin County, 677 S.W.2d 743 (Tex. App.--Dallas 1984, writ
ref d n.r.e.).

       Section 62.011 does not otherwise prescribe the duties of the district clerk,
but the courts have advised that

            in addition to carrying out the orders of the Commissioners
            Court, it would be a good practice for the clerk or his deputy to
            personally supervise the jury selection process in every way
            possible.

Martinez v. State, 507 S.W.2d 223, 227 (Tex. Crim. App.), cert. denied, 419 U.S. 969
(1974). The courts thus recognize that the intent of section 62.011 is to require the
officials responsible for instituting an electronic or mechanical system of juror


         4Siice 1971, Texas law has required the names of prospective jurors in all counties to be
selected manually by the use of the jury wheel. See Gov’t Code 59 62&N- 62.010; Acts 1971,62d Leg.,
ch. 905, at 27%‘. The county tax assessor-collector, sheriff, county clerk, and district clerk are each
given discrete duties with regard to the operation of the jury wheel and the manual selection of names
of prospective   jurors. Gov’t Code 5s 62.001 - 62.010. Section 62.011 of the Government Code
authorizes the    selection of names of prospective jurors with the aid of electronic or mechaniul
equipment as     an alternative to the jury wheel method. The 1989 order of the Tarrant County
Commissioners     Court adopts this alternative for Tarrant County.




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selection to install the district clerk as its chief supervisory officer. Although section
62.011 does not describe what the duties of the district clerk are in these
circumstances, we think the statute clearly requires the district judges to
recommend, and the commissioners court to adopt, a plan that enables the district
clerk to exercise primary supervision of the juror selection process. See aLroDktrict
Judges v. Commissioners Court of CoIlin County, supra. The specific features of the
plan are entrusted to the discretion of the .district judges and the commissioners
court of the county.

        Turning to the position of jury administrator, we previously noted that the
administrator was evidently hired to discharge the duties of the bailiff of the central
jury room under section 62.019 of the Government Code. Subsection (b) of that
section authorizes a majority of the district judges in a county with at least nine
district courts to appoint, with commissioners court approval, a bailiff “to be in
charge of the central jury room and the general panel.” An individual so appointed


          shall take care of the general panel and perform the duties in
          connection with the supervision of the central jury room and the
          general panel that are required by the district judges. [He] may
          notify prospective jurors whose names are drawn from the jury
          wheel or selected by other means provided by law to appear for
          jury service and may serve notices on absent jurors as directed
          by the district judge having control, of the general jury panel.
          (Emphasis added.)

Gov’t Code 9 62.019(d). The bailiff or a deputy bailiff in such a county may also be
authorized to summon prospective jurors; ordinarily, the sheriff performs this duty.
Id $5 62.014(a), 62.013.

        The language of section 62.019 makes clear that the.bailiff is only authorized
to exercise supervisory authority over the central jury room and the general panel
and to notify prospective jurors and absent jurors (whose names have already been
selected) if directed to do so by the district judge. We have found no authority that
specifically authorizes the bailiff to exercise any duties with respect to actual
selection of names of persons for service on the general panel.




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        Any of the duties delegated to the jury administrator for Tarrant County that
may relate to the selection of names of prospective jurors therefore cannot be
premised on section 62.019 as part of the specific functions described in the statute.
Nor do we think they can be justified as an implementation of the bailiffs
supervisory duties over the general panel, since we have already seen that the
legislature has committed these activities to other officers -- namely, the sheriff,
county clerk, or district clerk. See Gov’t Code $5562.001 - 62.010 (jury wheel
method); 62.011 (electronic or mechanical equipment).


      We also observe that subsection (i) of section 62.016 of the Government
Code, authorizing the use of interchangeable juries, specifically provides:

          Except as modified by this section and Section 62011, the law
          governing jury wheels applies in the counties that use general
          jury panels interchangeably in their county and district courts.
          (Emphasis added.)

See also id. Q62.017(h) (same rule in counties with two district courts). Thus, even if
we were to conclude that the bailiff could perform some functions associated with
the selection process, the bailiff would still be subordinate to the district clerk, who
is made the “officer in charge of the selection process” by section 62.011.

        Finally, we must also consider whether the district judges or the
commissioners court pursuant to some authority other than section 62.019 of the
Government Code may assign the jury administrator a role in the selection process.
We have located no statutory authority expressly authorizing the appointment of a
jury administrator to occupy a role in the selection process. But see Gov’t Code
9s 74.093(c) (authorizing district and statutory county court judges to adopt rules
providing for any matter necessary to improve the administration and, management
of the court system and its auxiliary services), ,74.101, 74.103 (authorizing
appointment of court coordinator and staff); Local Gov’t Code 9 151.002
(commissioners court duty to appoint deputies, assistants, or clerks for district,
county, or precinct officers). In the absence of specific statutory authority, the
appointment of a jury administrator may not serve to deprive the district clerk of the
authority granted by the written plan adopted in accordance with section 62.011.
See District Judges v. Commissioners Court of Collin County, supra (district judges
may not, under guise of inherent or implied powers, appoint a “Jury Clerk” to be in
charge of supplying jurors for jury trials when plan adopted under predecessor to


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section 62.011 designates district clerk as official in charge of the system); Aldrich v.
Dallus Counfy, 167 S.W.2d 560, 565 (Tex. Civ. App.--Dallas 1942, writ dism’d w.o.j.)
(commissioners court may not deprive county officer of authority which inheres in
his office, nor require him to delegate such authority to another person).

        To summarize, because section 62.011 of the Government Code requires
placing the district clerk in charge of the juror service selection process, neither the
commissioners court nor the district judges may delegate to the jury administrator
for Tarrant County specific duties relating to the selection of names of prospective
jurors.

                                    SUMMARY

               In a county that employs electronic or mechanical
          equipment as an aid in the selection of names of prospective
          jurors pursuant to section 62.011 of the Government Code and
          also uses interchangeable juries pursuant to section 62.016 of the
          Government Code, the district clerk must be designated as the
          officer in charge of the selection process.           Neither the
          commissioners court nor the district judges may delegate specific
          duties relating to the selection of names of prospective jurors to
           the bailiff of the central jury room appointed pursuant to section
          62.019 of the Government Code or to a jury administrator
          appointed by the district judges.

                                                    Very truly yours,




                                                    DAN      MORALES
                                                    Attorney General of Texas




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WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




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