                            The Attorney                 General of Texas

                                               October   8, 1980
MARK WHITE
Attorney General
                        Honorable Ben Z. Grant, Chairman           Opinion No. m-250
                        House Judiciary Committee
                        Capitol Building                           Re: Whether the state may compel
                        Austin, Texas 78711                        active    United   States    military
                                                                   personnel to engage in jury service

                        Dear Chairman Grant:

                              You have requested our opinion es to whether a state may compel
                        active United States military personnel to engage in jury service.

                               Federal law exempts from federal jury service “members in active
                        service in the Armed Forces of the United States.” 28 U.S.C. 51863(b)(6). It
                        has been held that the grant of such an exemption &es not contravene a
                        defendant’s right to an impartial jury or his sixth amendment right to a jury
                        trial. Government of the Canal Zone v. Scott, 502 F. 2d 566, 569 (5th Cir.
                        1974). Although this decision makes clear that a state could grant an
                        exemption to United States military personnel, it does not specifically reach
                        the question of whether it must do so.
806eroadway.suite 312
Lubbock,TX. 79401             The law is well-settled   that states may not interfere      with the
806”47-5238             performance of proper federal functions. Thus, one factor to be considered
                        in answering your question is whether compelling federal military personnel
                        to serve on state juries would unduly burden the operations of the federal
                        government. The Scott court, m,      seemed to indicate that it might:

                                   . . . because it is the ‘primary business of armies end
                                   navies to fight or be ready to fight wars should the
                                   occasion     arise ‘, . . . the exclusion of military
                                   personnel from jury duty is reasonable and for the
                                   good of the community. . . .

                        502 F. 2d at 569. A case of direct interference was held impermissible in
                        United States v. McLeod, 385 F. 2d 734 (5th Cir. 1967), in which a federal
                        court stated that a state grand jury lacked the authority to investigate the
                        operation of a federal agency. The court said that:

                                   merely calling employees of the federal government
                                   before the grand jury would have the prescribed
                                   disruptive effect on the administration of a federal
                                   agency.

                        385 F. 2d,at 752.




                                                          p. 787
Honorable Ben Z. Grant - Page Two       (I@-250)




      A decision even more relevant to your inquiry is In re McShane’s Petition, 235 F.
Supp. 262 (N.D. Miss. 1964). There, the court held that a state was without authority
to indict a federal marshal for using tear gas in violation of state law. The marshal
had been acting under express statutory authority and under the express, specific
orders of his superiors. 235 F. Supp. at 271.

      Other states provide an exemption from jury service for United States military
personnel.   See, e&, California Civ. Proc. Code 5200 (West). New York law states
that “[ml embers in active service in the armed forces of the United States” are
disqualified from service as jurors. N.Y. Jud. Law 5511(MeKinney). A 1972 opinion of
the Attorney General of Florida states that United States military officers “are
absolutely disqualified to serve as grand or petit jurors.” Fla Attorney General
Opinion 072-155 (1972).

       In our opinion, the stistantial weight of authority indicates that an active
member of the United States armed forces, acting under federal law and pursuant to
the valid orders of a superior, may not be compelled by a state to engage in jury
service.

                                    SUMMARY

              An active member of the United States armed forces, acting
           under federal law and pursuant to the valid orders of a superior,
           may not be compelled by a state to engage in jury service.




                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY Hl
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Susan Bradshaw
Rick Gilpin




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