                  E   TTOENEEU       GENE-
                        OFTE~AS



                      September 19, 1961

Honorable Guilford L. Jones    Opinion No. WW-1143
District Attorney
County Courthouse              Re:   Whether in a jury wheel
Big Spring, Texas                    county, where the court
                                     has granted a motion for
                                     a special venire in a
                                     capital case, and where
                                     the venire as drawn from
                                     the wheel, is exhausted,
                                     additional veniremen are
                                     drawn.from the wheel, or
                                     are summoned as talesmen
Dear Mr. Jones:                      by the sheriff?
        Your request for the opinion of this office reads in
part as follows:
          "In a jury wheel county, where the court had
       granted a motion for a special venire in a capital
       case, and where the venire as drawn from the wheel,
       is exhausted, are additional veniremen drawn from
       the wheel, or are they summoned as talesmen by the
       sheriff?
          "This case seems to be governed by Article 596
       C.C.P. It is the opinion of the undersigned that
       the words 'and upon such refusal' in Article 601-A
       limits this Statute in its application to those
       cases where the court has refused a motion for
       special venire.
          "In Coy v. State 2S8 SW2d '782,the court held
       that additional veniremen should have been drawn
       from the wheel. In Moon v. State 331 SW2d 312,
       the court indicates that Coy is no longer the law
       and that 601-A now requires talesmen to be selected
       by the sheriff."
        Article 601-A, V.C.C.P., was amended in Chapter 327, Acts
of the 55th Legislature, R.S., 1957.
Honorable Guilford L. Jones, Page 2   WV-1143
                                            1


        It now reads as follows:
           "In all counties of this State where jurors
        in either civil or criminal cases are drawn from
        a jury wheel as is now provided or may hereafter
        be provided by law and where as many as one
        hundred (100) jurors have been summoned in such
        county for regular service for the week in which
        such capital case is set for trial, the Judge of
        the Court having jurisdiction of a capital case
        in which a motion for a special venire has been
        made, shall grant or refuse such motion for a
        special venire and upon such refusal require the
        case to be tried by regular jurors summoned for
        service in such county for regular service for
        the week in which such capital case is set for
        trial and such additional talesmen as may be
        summoned by the Sheriff upon order of the Court
        as provided in Article 596of the Code of
        Criminal Procedure, but the Clerk of such Court
        shall furnish the defendant or his counsel a list
        of the persons summoned for jury service for such
        week upon application therefor."
        The amendatory Act in 1957 recited in finding that an
emergency existed:
           "The fact that confusion exists over the
        proper method of selecting jurors in capital
        criminal cases and the need forthislegislation
        for the speedy administration of justice create
        an emergency. D 0"
        Article 596, V.C.C.P., reads as follows:
           "On failure from any cause to select a jury
        from those summoned upon the special venire, the
        court shall order the sheriff to summon any number
        of .men that it may deem advfsable, for the for-
        mation of the jury*"
        If a special venfre is exhausted, the Sheriff is to be
sent for talesmen. Art. 596,V.C,C.P.
        If a special venire is refused, in a county to which
Article 601-A, V.C,C,P. applies, the jury shall be chosen from
among the:
           11
            0 0 0 regular jurors summoned for service in
Honorable Guilford L. Jones, Page 3     (WW-1143)


         such county for regular service for the week
         in which such capital case is set for trial
         a . 011
        If these jurors are exhausted, Art. 601-A, V.C.C.P.
provides that talesmen shall be summoned as provided in Art.
596V.C.C.P.
        It follows that in a capitaicase in a jury wheel
county, when the first panel of jurors is exhausted, whether
drawn as a special venire or from regular sources, the procedure
to be followed is as set forth in Art. 596,that is, that the
sheriff should summon such additional talesmen as are needed
to complete the jury. Moon v. State, 331 S0W.2d 312 (Tex.Crim.
1960.)

                           SUMMARY

            In a jury wheel county, where the court has
         granted a motion for a special venire in a
         capital case, and where the venire as drawn
         from the wheel, is exhausted, additional venire-
         men are tombe summoned as talesmen by the sheriff.
                                     Sincerely yours,
                                     WILL WILSON
                                     FG




                                       John E. Leonarz
                                       Assistant Attorney General
JEL/br
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Riley Eugene Fletcher
J. C. Davis
Sam Wilson
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL
By: ~Houghton Brownlee
