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                      THEATTORNEY                      GENERAL
                                        OF%?EXAS
                                        AURT~N   la.TEXAEI
    PRICE  DANIEL
    ATTORNEYGENERAL
                                                 November 29, 1949

               Non. Paul Worden                         Opinion No. v-952
               Criminal District Attorney
               !&Kinney, Texas                          Re: The applicabllitg of
                                                            the "Jury Wheel Law"
                                                            to Collln Co ty due
                                                            to S.B. No.3r ) 51st
                                                            Legislature, amend-
                                                            ing the scope of this
               Dear Sir:                                    statute.
                         Reference is made to your recent request which
               reads in part as f"bll~ws:
                      "I desFre to get ybur opinion, and the answer,
                      on 8,ome questidhs wPth reference to the lJury
                      Wheel   1 liaw:

                      "Fatts: The 51st Legislature, by S.B.No.36
                      . . . amended Article ,2094 . . . whereby the
                      population figure for a county was reduced
                      from 58,000 to 46,000. In addition thereto,
                      the article was Purther amended bf putting in
                      this provisions: 'and in each county having two
                      or more district courts holding s&ssiollsthere-



                      ~"ColZSnCouat~ does r&t have but bne district
                      c oupt .
                      "The officers: tag ooflector, sheriff, county
                      clerk, and d+tr@t   clerk, not knowing this ar-
                      ticle had bee,ntihendedso that It might apply
                      to Collin Cbuntg,,,>fJ$do@,    failed to meet
                      between the 1st ,&iVj15th bf &i&at, 1949, to
                      pergorm the%,?:j&$$&a'ti&h 'r&em~hbe to brepor-
                      Fng the du@ *h&l.
#32   Hon. Paul Worden, page 2   (V-952)


                "2 . Would it be legal and proper for
           the officers, whose duty it is to Sill the
           jury wheel,'to now meet and perform this act?"
               Subsequently you submitted a third question:
                “3. IS you have answered question No.
           1 in the affirmative, then what procedure
           should be Sollowed in selecting special
           venires in Collin County?"
                Senate Bill 36, Acts of the 51st Legislature,
      1949, page 868, amendlng Article 2094, is in part as fol-
      lows:
                "Between the first and fifteenth days of
           August of each year, In each county having a
           population of at least forty-six thousand (46,-
           000), or having therein a city containing a
           population of at least twenty thousand (20,000),
           as shown by the last preceding Federal Census,
           and in each county having two or more DlstrFct
           Courts holding sessions therein, regardless of
           population, the Tax Collector or one of his
           deputies, together with the SherFSf or one of
           his deputles, and the County Clerk or one of
           his deputies, and the District Clerk or one of
           his deputies, shall meet at the court house of
           their county and select from the list of quali-
           fied jurors of such county as shown by the tax
           lists in the Tax Assessor's office for the cur-
           rent year, the jurors for service in the Dis-
           trict and County Courts of such county for
           the ensuing year, in the manner hereinaSter
           provided."
                In view of plain, clear, and unambiguous lan-
      guage in the above Senate Bill, and the fact that Collin
      County has a populatfon in excess of 46,000 according to
      the last preceding Federal Census, Ft is our opinFon thst
      the bill applies to such County.
                Statutes which regulate and prescribe the time
      1n which public officers shall perform specified duti-es
      are generally regarded as directory. The rule is well
      stated in 2 Sutherland's Statutory Construction (2d Ed.)
      1117, SectIon 612:
                "Provisions regulating the duties of pub-
           lic officers end specifying the time for their
Hon. Paul Worden, page 3     (v-952)


     performance are in that regard generally di-
     rectory. Though a statute directs a thing to
     be done at a particular t&me, it does not nec-
     essarily follow that it may not be done after-
     werds. In other words, as the ceses univer-
     sally hold, a statute speoY$gita&a time within
     which a pub1&c ofSi,oerIs to &%rSoi% sn 6fSi-
     cial eat regardln$ the right& and @utles of
     others’is direotbrp, unless the nat re of,the
     act to be perSor@ed, or the phraseoY,ogy of‘the
     statute, is such that the designation ,of tltbe
     must be qbna dered as a limitation of the pow-
     er OS the OSi Leer.”
           Again the seme author observes, In gebtion 611,
page 1114 :,
          “Those directions which are not of the
     essence of the thing to be done, but which are
     given with a view merely to the proper, order-
     ly and prompt conduct of the business, and by
     the failure to obey the rights of those inter-
     ested will not be prejudiced, sirenot commonly
     to be regarded as mandatory; and if the act is
     performed, but not in the time or in the pre-
     cisa mode indicated, It will
     Gient, if that which is dotie
     gubstrnt$al purposa @E the
          Or, 8s stated 0% W *eXas Jurisprudence Z@,
statutes, section 16, “a statute authorizing or qotima.nd-
ing 88 act to be performed or a thing to be done, a p o-
vision as to time is usually regarded as direCtbry; tat
                                                     ii
is, it does not necessarily follow thet a thing which a
statute directs,to be done at a particular time may not
be d$ne afterwards. Nor is it Imp1ied that an act, for




          Also,   in   34 lex. Jur., Page 456, we find the
following:
          "btrtutrr thlt raguliHx and prescribe tbe
     time wLthU whbich oPSl.WP$ she11 perSorm spsel-
Hon. Paul Worden, page 4   (V-952)


     fled dutFes are ordinarily regarded as merely
     directory in so far as the time is concerned.
     Though the officer neglects to eat wlthin the
     time prescribed, if he acts afterwards the
     public will not be permitted to suffer by the
     delay."
          By virtue of the foregoing we believe that it
would be legal and proper for the officers, whose duty
Ft is to fill the Jury Wheel, to now meet and perform
this act.
          The statutes relating to the selection of a
Special Venire in capital cases, Arts. 591 and 592, V.C.
C.P., provide as follows:
     Art. 591. "In all counties having a popula-
     tion of at least fifty-eight thousand, or hav-
     ing therein a city of twenty thousand or more
     population, as shown by the preceding Federal
     Census, whenever a special venire is ordered,
     the District Clerk, in the presence of and
     under the dlrection of the Judge, shall draw
     from the wheel containing the names of the
     jurors the number of names required for such
     special venlre, and prepare a list of such
     names in the order in which drawn from the
     wheel, and attach said list to the writ and
     ,dellversame to the sheriff. The cards bear-
     ing such names shall be sealed in an enve-
     lope and kept by said Clerk for distribution,
     as herein provided. If from the names so
     drawn, any of the men are lmpaneled on the
     jury and serve as many as four days, the cards
     bearing their names shall be put by the Clerk
     in the box provided for that purpose, and the
     cards bearing the names of the men not impan-
     eled shall again be put by the Clerk In the
     wheel containing the names of eligible jurors.”
     Art. 5%.   'Whenever a special venire is or-
     dered In oounties not included within the pro-
     visions of the preceding article, the name of
     each person selected by the jury commFssioners
     to do jury service for the term at which such
     venire Is required shall be placed upon tlck-
     ets of similar size and color of paper and the
     tickets plsced in a box and well shaken up;
     and from this box the clerk, in the Presence
Hon. Paul Worden,   Page   5   (v-952)




    of the judge, in open court, shall draw the
    number of names required for such special
    venlre, and shall prepare a list of such
    names In the order in which they are drawn
    from the box, and attach such list to the
    writ and deliver the same to the sheriff."
          An analysis of the above quoted articles dis-
closes that netther of these specific statutes could be
applicable to Collin County because Article 591 is ap-
plicable to only those counties having a gopulatlon of
at least 58,000 Inhabitants while Article 592 applies to
counties whkh operate under the jury commission system.
This being true there is no specific provision for the
selection of special venires in Collln County.
          In the case of Taylor v. St&,   221 S.W. 611
(Tex.Crim.l920), the Court stated:
         "It is our opinion that the unrepealed
    statutes referred to furnFsh authority for or-
    derinncthe suecial ven-lredrawn from the 11st




          Since there is no specific provision for the
selectFon of a Special Venlre in counties having a popu-
lation between 46,000 and 58,000 and in view of Taylor
v. State, a trial by jury will not fall but the court
-supply    the omissions.
          In capital cases we believe that as a practi-
cal matter, the provisions of Article 591 as to the se-
lection of Special Venlres are best suited to your
county lnesmuch as the selection of juries generally is
under the Jury Wheel law. (Art.2094).


         Senate Bill 36, Acts of the 51st Leg-
    islature, page 868, which provides for Jury
    Wheels in all counties with a population of
Ron. Paul Worden, page 6    (v-952)



     at least 46,000,   is applicable to Collin
     County.
          The county officers who are required
     to perform the duties with reference to pre-
     paring the Jury Wheel between the first and
     fifteenth of August under Article 2094, may
     now meet and perfons such duties, since the
     time element is directory. 2 Sutherland
     Statutory ConstructIon (2d Ed.) 1117, Section
     612; gde;:: Cyde Oil Co. v. Yount-Lee 011
                   2   Yk'3.W.2d 5b (1932)* 34 Tex.
     $&:         -
          456 . Sinai  there is no specifid provi-
     sion for the selectlon of Special Venires in
     counties w?-th a population between 46,000 and
     58,000 inhabitants, the Court through its in-
     herent powers may proceed in any manner which
     it may deem best. Taylor v. State, 221 S.W.
     611 (Tex.Crim. 1920).
                                         Yours    very truly,
                                      ATTORNEY GENERAL OF TEXAS


BA:bh:mw                          BY Bruce           Allen
                                                 Assistant


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