Hon. Charles Ii.Bolton        Opinion No. C-239
County Attorney
Bosque County Courthouse      Re:   Whether the defendant in
Meridian, Texas                     a misdemeanor case pend-
                                    ing in the county court,
                                    or his counsel, have a
                                    legal right of access to
                                    the names on the list of
                                    prospective jurors sum-
                                    moned in accordance to
                                    the procedure provided
                                    in Article 2117, V.C.S.,
                                    before such jurors
                                    report into court on the
                                    date for which they have
                                    been summoned and related
Dear Hr. Bolton:                    question.
     You have requested an opinion of this office on Article
2117, Vernon's Civil Statutes, under which Bosque County
selects its jurors. Your questions follow:
          'Does the defendant in a misdemeanor case
     then pending in the county court, or his counsel,
     have a legal right of access to the names on the
     list of prospective jurors summoned in accordance
     to the procedure provided in Article No. 2117,
     V.C.S. before such jurors report into court on
     the datmwhich      they ,have been summoned; and,
     does the county judge have the discretion to
     legally grant or refuse defendant's request to
     obtain knowledge of who has been so summoned
     and to make such information available to defend-
     ant for the first time when his case has been
     called for trial?"
     Article 2117, Vernon's Civil Statutes, provides:
          "At any time when the Judge of the County
     or District Court needs a jury for any particu-
     lar week of such Court, he shall notify the
     Clerk of such Court to open the next con-
     secutive unopened list of jurors in his posses-

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Hon. Charles H. Bolton, page 2   (C-239)


    aion,and shall direct him as to the date for
    which such jurors shall be summoned. Such
    notice shall be given to the Clerk within a
    reasonable time prior to the time when such
    jurors are to be summoned. The Clerk shall
    immediately note on the list the date for which
    the jurors are to be summoned, and deliver
    said list to the sheriff, Cn receipt of such
    list, the sheriff shall immediately notify the
    several persons named therein to be in attend-
    ance in Court on the,date so designated by
    the Judge."
     As you pointed out in your letter of request, this
Article does not provide authority to permit defendant or
his counsel to have knowledge of those selected, nor is there
provision to deny this right, if any he has.
     Although there is no provision in Article 2117 cover-
ing the availability of the jury list to the defendant or
his attorney, there is statutory provision for supplying
a jury list to a defendant in a case requiring a special
venire. This provision is found in Article 600, Vernon's
Code of Criminal Procedure, and is here quoted:
          'The clerk, immediately upon receiving the
     list of names of persons summoned under a special
     venire, shall make a certified copy thereof, and
     issue a writ commanding the sheriff to deliver
     such certified copy to the defendant. !Che sheriff
     shall immediately deliver such copy to the defendant,
     and return the writ, lndorsing thereon the manner
     and time of its execution.'
     It is further provided in Article 601, Vernon's Code
of Criminal Procedure, that no defendant in a capital case
shall be brought to trial until he has had one days service
of the copy of the names of persons summoned under a special
venire, except ~where he waives the right or is on bail.
     It is stated in 35 Texas Jurisprudence 2d, page 225,
Section 158 that "at common law one accused even of a
capital offense was not entitled to be furnished with the
names on the panel from which the jury would be drawn."
c phasis ours                          ex.Crim. 91, 17
S.W. 450 (1891 . The reason for the service of a copy
of the members of the special venire is to enable the
defendant better to exercise his challenges and the right
is regarded as a valuable one that ought not be denied

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         Hon. Charles H. Bolton, page 3   (C-239)


         except for causes over which the Court has no control. The
         right is a statutory privilege. Article 24, Vernon's Code
         of Criminal Procedure, provides:
                  "If this Code fails to provide a rule of
             procedure in any particular state of case which
             may arise, the rules of the common law shall be
             applied and govern."
              This provision certainly implies that in the absence of
         a statute controlling this situation we should be governed
         by the provisions of the common law. In practical usage,
         however, the custom in most counties is to make the jury list
         available to any attorney who requests the same on Friday
         prior to the trial on Monday. We see no reason to upset
         this practice especially in view of the fact that abuse of
         the privilege can be prevented by appropriate actions against
         the person misusing the list. The fact that the list is
         available to the defendant or his attorney does not necessar-
         ily constitute a threat,of misuse, but in fact Is in'pro-
         tection of a party accused of an offense,in his right of
         trial by an impartial jury.
              Since it Is provided by statute for service of the ven-
         ire on defendants in certain cases, and there is no provis-
         ion In Article 2117, Vernon's Civil Statutes, prohibiting
         knowledge of'the array to defendant, we are led to believe
         it was not meant by the Legislature to prohibit the practice
         of allowing attorneys to obtain a list of jurors. Policy
         in this regard should apply equally to prosecution and to
         defense counsel. The custom followed by Texas courts
         promotes efficient operation.
              The method now used in counties throughout Texas is
         operating in most instances very well. The abuse pointed
         out in your letter wherein defendant or his representative
         contacts jurors ahead of time can be overcome by proper
         enforcement rather than withholding the list of jurors from
         the defendant or his attorney.
              The following language was first used in Bird v. U.S.,
         187 U.S. 118 (1902) and was restated by Justice Douglas In
         U.S. v. Powers, 307 U.S. 214 (1939):
                   "There is a presumption against a construction
              which would render a statute ineffective or inefficient
              or which would cause grave public injuries or even
              inconvenience."


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Hon. Charles H. Bolton, page 4    (C-239)


     The judge who hears the case is in charge of management
of same. Therefore, we believe if the judge wishes to
follow the custom of making the jury panel list available
prior to the time of the trial, he may do so.

                    SUMMARY
          In view of the absence of a statute covering the
     situation, we do not believe the defendant has an
     absolute legal right of access to names on the list
     of prospective jurors summoned in accordance with
     Article 2117, V.C.S., before their attendance in court
     on the date designated by the judge. We do believe the
     county judge has the discretion to grant defendant's
     request to obtain knowledge of those who have been
     summoned as jurors prior to the time the case has
     been called for trial.
                           Yours very truly,

                          WAGGONER CARR
                          Attorney General of Texas



                              -SCOTT GARRISON
                               Assistant Attorney General
SG:cjp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Grady Chandler
Bob Flowers
Ben Harrison
Lloyd Martin
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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