              THE     ATTORNEY    GENERAL
                         OF TEXAS

                        June 15, 1989




Honorable Johnny W. Actkinson     Opinion No.   JM-1059
District Attorney
Bailey County                     Re: Summoning of jurors for
P. 0. Box 286                     justice of the peace court
Farwell, Texas 79325              (RQ-1698)

Dear Mr. Actkinson:

     You ask a number of questions relative to the summoning
of persons  for jury service in the justice of the peace
court.
     In your first question you ask from what source jurors
are to be selected.   In Cantu v. Samvles,   581 S.W.2d  195
(Tex. Civ. App. - San Antonio  1979, no writ), it was urged
that the clerk of the municipal court must draw the names of
prospective jurors from a jury wheel.     In rejecting  this
contention, the court held that the jury wheel law is only
applicable  for the selection of jurors in county and
district courts in the absence of special le islation.   The
court noted that article 2414, V.T.C.S., 4 (now section
62.403 of the Government Code) "provides for juries in the
justice of the peace court to be summoned orally by the
proper officer."  Cantu, suvra, at 196.

     Section 62.401 of the Government Code provides that the
justice of the peace shall order the sheriff or constable to
summon the number of qualified persons that the justice
considers necessary to serve as jurors. Section 62.402 of
the Government Code sets forth the oath to be administered
to the officer by the justice. The oath contains the guide-
lines to be observed by the officer in summoning the number




     1.    The court in Cantu noted that article 33.09 of the
Code of    Criminal Procedure provides that jurors shall be
selected   and summoned in criminal cases in the same manner
as juror   panels are selected in civil cases.




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Honorable Johnny W. Actkinson - Page 2        (JM-1059)




of persons  ordered by the court.2    Section 62.403 states
that the officer  shall immediately notify the prospective
juror that he is required to appear for jury service at the



     2. Section 62.402 provides that the justice     of the
peace shall administer the following oath to the officer:

           You do solemnly swear that you will, to
        the best of your skill and ability,       and
        without bias or favor toward a party in a
        case, summon the number of persons ordered by
        the court:    that you    will summon    only
        impartial, sensible, and sober persons who
        are qualified under the law to serve as petit
        jurors; that you will not, directly        or
        indirectly, converse or communicate   with a
        juror about a case pending for trial; and
        that you will not, by any means, attempt to
        influence, advise, or control a juror in his
        opinion in a case that may be tried by a jury
        on which he serves: so help you God.

     A portion of the oath requires the officer to summon
only persons "qualified under the law" to serve as jurors.
Section 62.102 of the Government  Code sets out the general
qualifications for jury service, as follows:

           A person  is disqualified      to serve    as   a
        petit juror unless he:

           (1) is at least 18 years of age:

           (2) is a citizen of this state and of the
        county in which he is to serve as a juror;

           (3) is qualified under the constitution
        and laws to vote in the county in which he is
        to serve as a juror;

           (4) is of   sound    mind    and    good   moral
        character;

           (5) is able to read and write;

           (6) has not served    as a    petit juror for
                                            (Footnote Continued)




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specified time and place.     The officer   is directed   by
section 62.403 to orally deliver the summons to the person.

     In your second question you ask whether the officer may
draw names from the jury wheel for justice court.         No
provision is made for the sheriff or constable to draw names
from the jury wheel in selecting prospective jurors to be
summoned for the justice of the peace court.

     The provisions for the use of the jury wheel, found in
chapter 62, subchapter A, of the Government Code, refer to
the use of the jury wheel only in connection with county and
district courts. See Gov't Code 55 62.004 (who draws names
of prospective    jurors for county and district        courts
respectively), 62.005 (observation of drawing by parties    in
jury cases in district or county courts), 62.007 (receipt of
envelopes   containing  jury lists by county or district
judge),   62.016   (in  certain counties, district      judges
determine number of prospective   jurors needed each week in
district and county courts), 62.017     (in certain counties,
jury panel may be constituted   for service in both district
and county courts),    62.020  (use of alternate    jurors  in
district and county courts respectively).

     Section 62.012 provides that a county or district judge
who requires a jury shall notify the county or district
clerk to "open the next consecutively      numbered  envelope
containing a jury list"     (of names drawn from the jury
wheel). The clerk notifies the sheriff who then summons the
jurors for such courts pursuant to section 62.013.         In
contrast, section 62.401 provides   simply that a justice  of
the peace needing jurors for his court **shall order the
sheriff or constable to summon for jury service" the
necessary number of qualified persons.



(Footnote Continued)
        six days during the preceding three months in
        the county court or during the preceding  six
        months in the district court;

              (7) has not   been convicted   of a   felony:
        and

           (8) is not under indictment or other legal
        accusation of misdemeanor or felony theft or
        any other felony.




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Honorable Johnny W. Actkinson - Page 4 (JM-1059)




     We do not think that the statutory scheme of chapter
62, which makes distinct provisions for obtaining jurors for
county and district  courts, as opposed to justice courts,
contemplates that jurors in justice court are to be selected
by means of the jury wheel.     See also Cantu v. Samvles,
suvra.

     In your third question you ask whether     jurors must
reside in the justice court precinct for which the court is
established to qualify as jurors.

     Section 62.102(2) of the Government Code states that a
person is disqualified to serve as a petit juror unless he
"is a citizen of this state and of the county in which he is
to serve as a juror." The oath the justice of the peace
administers to the officer under section     62.402 requires
that the officer summon persons "who are qualified under the
law." While section 62.501 of the Government Code requires
that a person must be a resident of the municipality     for
which the court is established     to serve on a jury in
municipal court, section 62.402 only directs the officer  to
summon persons "qualified under the law" to serve as jurors
in justice court. We construe "qualified under the law" to
mean a person who meets the qualifications set forth in
section 62.102. "Qualified under the law" requires that the
person be a resident in the county. We are unable to find
any requirement that a juror be a resident of the precinct
to qualify for service in the justice court.

     In your last series of questions you ask about the
methods an officer may utilize in summoning persons for jury
service in the justice court. Specifically,     YOU inquire
about the validity    of notifying   the prospective   juror
l'orally in person," by "written notice" and by "telephone
call to the [prospective] jurors."

     Section 62.403 provides:

           (a) The officer shall immediatelv   summon
        the required number of persons to appear  for
        jury service as ordered by the justice of the
        peace.

             (b) The summons must notify the person
        that he is required to appear        for jury
        service before the justice at the specified
        time   and place.    The officer shall orally
        deliver the summons to the verson.   (Emphasis
        added.)




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     The word *'shalll'is an imperative term and requires the
performance of the act to be performed unless it is apparent
that the legislature   intended otherwise.   Halios v. Texas
Dev't of Public Safetv, 733 S.W.2d 308 (Tex. App. - Amarillo
1987, writ ref'd).     Section 62.403 provides   the officer
"shall orally deliver the summons to the person."    Delivery
of summons by written notice is not authorized.   The reguir-
ement that the officer immediately summon persons for juror
service further supports the conclusion that it be delivered
orally.

     Oral is defined as "uttered by the mouth or in words:
spoken, not written."  Black's Law Dictionary 987 (5th ed.
1979). t*DeliverylVis defined as "[tjhe act by which the res
or substance thereof  is placed within the actual or con-
structive possession or control of another."    Id. at 385.
No reason is perceived why the officer may not orally summon
jurors in person or by telephone.

                       SUMMARY

             The sheriff or constable summons persons
        for jury service in the justice of the peace
        court in accordance with the guidelines   set
        forth in the oath administered under section
        62.402 of the Government Code. The officer
        is not authorized  to draw names of persons
        from the jury wheel for jury service in the
        justice of the peace court. A juror need not
        reside in the precinct for which the justice
        court was created but must be a resident   of
        the county. The officer may summon prospec-
        tive jurors for the justice of     the peace
        court orally in person or by calling the
        individual by telephone.  The officer is not
        authorized to use a written notice to summon
        persons for jury service in the justice of
        the peace court.




                                     JIM     MATTOX         '~
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General




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LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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