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    c 0 I’ Y                                                       COPY
                          OFFICE OF ‘332 hTTC!~(KY3EXT;;iiX.CF TEXAS
                                        :dletin
                                                      February 20, 1939

    Mr. Joe P. Hatchett
    District   Attorney
    Cameron County
    Brownsville,    Texas
    Dear Mr. Eiatchett:
                                  Opinion Ko. O-350
                                  Re: The right of a party litigant,
                                  In counties where the Jury whe61 law
                                  is applicable,  to have jurors drawn
                                  rrom the jury wheel
                Ke acknowledge receipt   of your letter   of February 13,
    1939, in which you re:ueet     our opinion on the Cuestlon Wwhether
    or not In the trfab,of    cases In the 103rd Judicial    District   Court
    of Cameron County, Texas, a party ~lltlgant,      OS demand therefor,
    Is entitled   to have all the jurors,    under all clrcumtances,
    drawn iron the jury wheel”.
                In explanatton ot your question,    your letter states
    ‘that Cameron County 1s now, and for the past several years has
    been opersticg    under the jury,whebl  law, being Articles  2094 through
    2100, Revised Civil ,Statutes,    1925, as amended, said county having
    a population   In excess of 58,000 and having a city containing    a
    population   In excess of 20,000, as shown by tk.e preceding Federal
    census.    You further state that there are two district    court8 in
    Cameron County, the 103rd Judlaial     District  Court and the Criminal
    District   Court.
              ;7e have carefully    studied the cases cited in your Iletter
    ard other authorltles   pertaining    to the subject OS your request.
    titer such study, our opinion la that as to counties coning wlthln
    the jury wheel law, your question sLould be answered as follows:
                 (1) In selectln(T the regular jur$-for   the week,Lln.elther
     civil  or criminal cases, and in selecting    spe%lal venlres in capital
     cases, a party lltlgant     Is entitled on demand to have all of the
     jurors drawn from the jury wheel,
                 (2) Zhen the regular jury for the creek or the special
     venire does not furnish a sufflc&ent    number of jurors,    a Party
     litigant  is not entitled   to have the necessary additional    jurors
     drawn r~rom the jury wheel; a!xl the statutory   method of obtaining
     such necessary additional    jurors Is for the court to order the
     sheriff  to sumon taldsmen.
!dr. Joe F. Uatohell,   February 20, 1939,   Fage 2

           The rrethod of sblsotlbg   Jurors frarJ the Jury wheels la
set out In Articles    2094 through 2100, Revised Civil Statutes,
1925, as amended. TNs method of selecting       the regular jurors,
In the absence of agreement or waiver by the parties,       Is the only
proper way to select    In advance Jurors for the week for either
clvll  or non-oapltal   orlmlnal cases,  in coGntles where the Jury
wheel law applies.    See Northern Texas Traction Company v. Bryan,
116 Tex. 479, 294 S.X. 527 (C~mmls~loc cf A peals, 1927). answers
conformed to, 299 S. W. 325 (Clv. App. 1927 P . For example, In
a oounty where the Jury wheel law applies,      it has been held to
be error for the court to compel a deterdant,      In a non-oapltal
criminal  ease, to to to trial before a Jury selected      by Jur
oommlssioners.   Click v. State, 119 Tex. Cr. 118, 44 S.VJ. (2 T 992
(1931); Ervln v. State, 119 Tsx. Cr. 204, 44 S.W. (2) 3SO (1931);
Ingram v. State, 120 Tex. Cr. 8, 47 S.‘k’. (2) 285 (19323.
           In capital   oases, Article  591 of the Code of Criminal
Procedure,   1923, as amended, spocitlcally   provides that the
special  veolre shall be,drawn rrom the jury wheel, In coudtlos
coming within   the jury wheel law.
              A different   question,    however, la presented in the
situation     where the regular Jury for the week or the special venire,
although properly drawn from the wheel, does not for any reason
supply a sufrlolent       number of Jurors. Sir understand, iron the last
paragraph or^ your letter,        that you are espeolally    Interested  in
the question as ta whether “It Is the duty of the court to require
that as and when additional          Jurors are needed ttey must be drawn
fz;roFe.theel       from time to time, If neoessary,      as In the first
                Our opinion is that in this situation,        the court Is
not required to order that additional           Jurors be drawn iroa the
wheel, but that       the deflolency    in the Dumber of the jurors should
be supplied by ordering the sheriff           to summon talesmen.
           Article 2118, Revised Civil Statutes,    1925, provides
that if there be an insufficient    number of jurors Included In
the Jury list ror t&e week ln attendance on tto court,      “the
court shall direct the sherlfi    to summon a sufSicie.nt number of
qualified  men to miske up the rec$lslte  number of jurqrs.”
          titlcle  2141, Revised Civil Statutes,  1925, provides
that when there are not as many as twelve names drawn fron the
box, If In the district  court,  *the court shell dlroot the sherlrr
to summon such number of qualified   persons as the wurt deems
necessary to complete the panel.”
           utlcle  2146, Eevlsed Civil  Statutes.  1925, provides
that, “It challenges   reduce the number OS jurors to less than will
constitute  a legal jury, the court shall order other Jurors to be
drawn or summoned and their names written upon the list    Instead
of those set aside rOr cause.”
.   .
    Mr. Joe P. Hatohell,    February   20,   1939,   Page

             Article                                :I
                        2150, Revised Clvll 3tatutes,,l925,   provides that
    -when by peremptory      challenges  the jury Is left Incomplete,  the
    court aall      dlreot  other Jurors to be drawn or summoned to aom-
    plate the Jury; and such other jurors shall be lmpaneled as In
    the first    instanoe.m
             The foregoing    Articles   of the Rovlsed Civil Statutes have
    their oounterparts      In the Code of Criminal Procedure In the
    statutes   relating   to trial    by jury In non-capital    cases. Article
    640 of the Code of Criminal Procedure,          1925, provides that, Whgn,
    imm sny oause, there are no regular Juror8 for the week from
    whom to select     a Jury, the court shall order the sherlrr        to auamon
    forthwith   such number of qualified       persona as It may deem suiflolent,
    and from those     summoned, a Jury shall be foraed.w        It will be noted
    that these prwlslons       are very similar to the provlalons       of Artlale
    2118, Revised Civil Statutea,        1925. Articles   629, 631 and 638 ot
    the Code of Criminal,Prooedure,         1925, are Identical    ln their pro-
    visions, respeotively,      with Articles    2141, 2146 and 2150 of the
    Revised Clvll Statutes,       1925.
           * In civil  oases, It has been held that a party litigant         has
    no ri&t     to have necessary additional     furors drawn from the Jury
    wheel, when there are not sUflcleht         Jurors on tho regular weekly
     jury to oomplete t!m panel. Houston Electric        CO. v. Seegar.
    117 s. :I-. 900 (Civ. App., 19b9)        itd     Id    I th e case olted
    the regular weekly jury selected     zom t:e” y&y wPde1 was lnsuffl~lent
    In number, and the court ordered the sherMi          to summon talesmen. tie
    derendant raised the objection     that it was the intention      of the
    Legislature    in passing the Jury wheel law to do away wlth the statu-
    tory provisions    as to talesmen. The Court of Civil ;,ppeals rejects
     this contention.   The Court points out that under Section       4 of the
    .Jury wheel law (now Article    2096, Revised Civil Statutes,      l925,   ohe
    drawing or the na?nes of jurors, from the lury wheel shall take place
    not less than ten days prior to the first         day of the term ot court
    at uMch they are to serm,       and the court concludes that this Is
     the only time provided by law for the openlllg of the wheel and the
    drawing of the nams of jurymen therefrom.
             The case of Houston Electric    Co. v. Seegar, su ra was
    followed    In fi. H. k S. A. By. Co. v. Ml1     I 191 5.X. %      {Clv.
    ~pp., 1917) writ refused.     In the latter   odaCse,the Court points
    out that, “The statute for selecting Jurors for the week Is the
    same for the trial of clvll     and criminal cases.n In view of the
    substantial     Identity of the clvll  and criminal   statutes,   we are
    of tine opinion that t2.e $a= rule for obtaining        ne,cessary addl-
    tlonal   jurors would be a?plled tn non-oapltal      orlmlnal cases aa
    in civil    oases, I.e.,  that they should be summoned as taleamen
    by the sherltr.
                                                                        .   .


Yr.   Joe P. Hatohell,   February 20, 1939,   Page 4


         Article  596 0s the Coda or Crlalnal Prooedure, 1925,
provides   that In capital    oases, *on failure   from any cause to
aeleot a jury iron those summoned upon the special renlre,        ths
oaurt shall order the sheriff       to sumon any number of mn that
It may deem advisable,     for the fornation    of the jury.” Under
this statute,    the Court of Criminal Appeals has held dlreotly
that after    the apeclal venlre Is exhausted,     the defendant has
no right to have additional      venlrementdrawn from the wheel and
that the court should order taleamen to be summoned by tte
sheriff.   Russ611 v. State, 84 Tex. Cr. 245, 209 S. 3. 071 (1918).

                                        Very truly     yours
                                   ATTORNEYCZN:EIiAl.CF TEXAS
                                   By   J.‘.JL?SP. EART (Signed)
                                              Jams P. Eart
                                                    Assistant

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