                  THEATTORNEYGENERAL
                                OF        TEXAS

                               A~ex-xiu    11, TEXAS
  %VJLL  WILSON
*~ORNEYG*NERAL
                             February 23, 1961


 Honorable Bob Eckhardt, Chairman            Opinion No. WW-998
 Criminal Jurisprudence Committee
 House of Representatives                    Re:   Constitutionality of H. B. 57,
 Austin, Texas                                     amending Article 680, Code of
                                                   Criminal Procedure of Texas,
                                                   to provide for alternate jurors
                                                   in felony cases'when a juror
                                                   becomes unable or disqualified
 Dear Mr. Eckhardt:                                to continue.

      The Criminal Jurisprudence Committee of the House of Representatives
 has requested an opinion on the constitutionality of H. B. 57, 57th Legis-
 lature, which would amend Article 680 of the Code of Criminal Procedure of
 Texas, 1925, so as to make Article 680, C. C. P. read as follows:

        "In felony cases the courtmay direct that one (1) or two
        (2) jurors in addition to the regular jury be called and
        impanelled to sit as alternate jurors. Alternate jurors
        in the order in which they are called shall replace Jurors
        who, prior to the time the jury retires to consider its
        verdict, become unable or disqualified to perform their
        duties, and the court shall have the power to discharge
        such juror or jurors upon the discovery of any fact which
        in the opinion of the court renders the juror unable or
        disqualified to continue. An alternate juror who does
        not replade a regular juror shall be discharged when the
        jury retires to consider its verdict. Should a juror be-
        come unable or disqualified after the jury retires to con-
        sider its verdict, the jury may be discharged. Alternate
        jurors shall be drawn in the same manner, shall have the
        Same~quaLifications, shall be subject to the same exami-
        nation and challenges, shall take the same oath and shall
        have the same functions, powers, facilities and privileges
        as the regular jurors. Each side is entitled to one (1)
        peremptory challenge in addition to those otherwise allowed
        by law if any alternate jurors are to be lmpanelled. 'The
        additional peremptory challenge may be used against an
        alternate Ouror only, and the other peremptory challenges
        allowed In this Code may not be used against an alternate
        juror."

      Section 2 of the bill is a severability caause; Section 3 makes the
 bill inapplicable to pending litigation; Section 4 repeals conflicting laws
Hon. Bob Eckhardt, Page 2     (W-998)



and parts of laws;     and Section 5 is the emergency clause.

        In Greene v. Robinson, 117 Tex. 516, 8 S.W.2d 655, (1928), our Supreme
court    of Texas stated at page 656:

                   "The Legislature is a co-ordinate branch of the
                government, created by the people in their Consti-
                tution for the especial purpose of enacting the laws
                under which the government must be administered.'The
                rules and principles to guide a court in determining
                the constitutionality of its acts have often been an-
                nounced and elaborated upon in the cases. We will not
                repeat them, or review them further than to say that
                all reasonable doubts will be resolved in favor of
                the validity of an act, and that, where an act is sus-
                ceptible of a valid construction, that construction
                will be given it. We deem it unnecessary to cite
                cases."

        Article V, Section 13, Texas Constitution, reads in part as follows:

                   "Grand and petit juries in the District Courts shall
                be composed of twelve men; , a . ."

     In Clark v. State, 161 Tex. Grim. 278, 276 S.W.2d 819 (less),      the ap-
pellant, Clark was being tried by a jury of twelve in the district      cour~~~w&en
the wife of one of the jurors became seriously ill. It was agreed       by all
parties that the case could continue to final determination before      the re-
maining eleven jurors. The appellant was convicted. The Court of        Criminal
Appeals of Texas stated at page 820:
                   II
                    . . . An essential element, then, of the ri~ghtof
               trial by jury, in a felony case, is that the jury must
               be composed of twelve jurors. . . ."

                  "If appellant could not waive the constitutional
               right to be tried by a jury of twelve jurors, then any
               agreement that he may have made consenting thereto
               would be ineffective."

     There are numerous cases cited in the Clark case, supra, which holds
that eleven jurors may not return a verdict%%    felony case.in the district
court. In Bullard ir.State, 38 Tex. 504 (1873),the defendant was tried and
convicted of a felony in the District Court by a jury of thirteen jurors. Ths
Supreme Court of Texas, in reversing and remanding the case, relied on Article
3007, Paschal's Digest. This case occurred before the adoption of our present
Texas Constitution of 1876, but the same rule is incorporated in Article V,
Section 13, Texas Constitution, supra. A grand jury composed of fourteen
grand jurors cannot return a valid indictment. Highsaw v. State, 90 Tex.
Hon. Bob Eckhardt, Page 3   (ti%'-998)



Crim. 200, 234 S.W. 220 (1921). The same is true of a grand jury composed
of thirteen grand jurors. Ogle v. State, 43 Tex. Grim. 219, 63 S.W. 1009
(1901)-

     Thus we see that in view of Article V, Section 13, Texas Constitution,
supra, a jury in the district court may not be less than twelve nor more then
twelve. This brings us to the question of the effect of alternate jurors,
who are selected, sworn and impanelled, but who do not retire with the jury
and deliberate on the verdict, until and unless a regular juror becomes dis-
qualified or disabled. Although our present statutes do not provide for
alternate jurors, the Supreme Court of Texas, in the Bullard case, "upra,
did state at page 505, with respect to the 13th juror, that:
                II . . if the last juror sworn can be pointed out,
             he may be dismissed from the panel, and the trial pro-
             ceed before the legally constituted jury. But if more
             jurors than the legal number are permitted to deliberate
             on the verdict, the verdict should be set aside and a
             new trial awarded."

In Davis v. State, 9 Tex. Grim. 634 (1880), one of the jurors~who was summoned
for jury duty was stricken from the list, but thereafter inadvertently got in
the jury box and was sworn as a juror with the twelve regular jurors. The
case had proceeded to the point where both the State and,the Defendant had
rested, when it was discovered that there weEthirteen jurors in the jury box.
The Court dismissed the juror who had been originally stricken from the list,
and the remaining twelve jurors then retired, deliberated, and returned the
verdict. The appellate,court held that this was not error, since the trial
court was able to determine which of the thirteen jurors was not properly on
the jury.

     In view of the holdings in the Bullard case and Davis cake, we do not
have any difficulty with the situation where one or morealternates are
chosen, sworn, and hear the evidence and argument of counsel, but who do
not retire with the regular jurors to deliberate, for the trial court can
easily determine who are the regular jurors. In such case only the twelve
regular jurors would retire to deliberate and return a verdict, The problem
of the alternate who replaces a juror during the course of the trial presents
a different .situstion. Does the death, disability, or disqualification of a
regular juror reduce the jury to eleven jurors, so that the reduction of the
jury to eleven regular jurors requires a mistrial under the Texas Constitution?
Or can an alternate juror *ho was sworn at the same time as the regular jurors
were sworn, and who has heard all of the evidence and other proceedings up to
this point, take the disabled or disqualified regular Juror's place, and the
trial proceed? Since we have never had a statute in Texas providing for
alternate jurors, there are no Texas cases to guide us, and we must look to
onhbrrjurisdictions for guidance.
Hon. Bob Eckhardt, Page 4   (w-998)



     There are a number of jurisdictions which provide by statute for alter-
nate jurors. It would serve no purpose to collect at this point the cases
from many states upholding the constitutionality of such alternate juror
statutes, since in most of these states their respective state constitutions
do not read like our Texas Constitution on this point. Most states provide
by state constitution for trial by jury, and since no specific number of
jurors is mentioned, it has been held that this means the common law number
of twelve jurors. These states have had no difficulty in finding that a
provision for alternate jurors who do not retire with the regular jury to
deliberate or vote on the verdict when no regular juror is disqualified,
but who can and do replace a disabled juror, is constitutional.

     South Carolina, however, has a provision in its constitution which is
very similar to the one found in our Texas Constitution. ArtitileV, Sec-
tion 22 of the South Carolina Constitution, 1895, reads in part was follows:

               "The petit jury of the Circuit Court shall'6%nsist
             of twelve men, all of whom must agree to a verdict
             in order to render the same." [Bmphe~sisadded!

     Subsequently, the South Carolina Legislature enacted its alternate
juror;:statute,Section 626-2,Code of 1942. The Supreme Court of South
Carolina apheld the constitutionality of this statute in the case of State
v. McIntire et al, 221 So. Car. 504, 71 S.E.2d 410 (1952). The Courtzed
the problem at page 415:

               "Did the trial judge err in directing that there.
            should be an alternate or thirteenth juror? The
            error assigned, being that in so directing the trial
            court deprived appellant of.his-rights under Article
            V, Section 22 of our Constitution of 1895, which pro-
            vides that the petit jury of the circuit courts shall
            consist of twelve men, all of whom must be agreed as
            to a verdict in order to render the same.

               "By this exception the appellant attacks as uncon-
            stitutional Section 626~% of the Code of 1942. This
            section grants to the presiding judge, where a trial
            is likely to be a protracted one, the right to 'direct
            the calling of one or two additional jurors in its dis-
            cretion, to be known as alternate jurors.' The section
            goes on to provide that any alternate juror as provided
            in this section shall sit with the jury panel charged
            with the case and shall have the same opportunities for
            seeing and hearing the proceedings, and shall take the
            same oath as the jurors already sworn. The alternate
            juror takes no part in the decision of the case unless
            a vacancy occurs on the jury panel through death, illness
.   .   .




            Hon. Bob Eckhardt, Page 5   (w-998)




                         or other disability. This section likewise protides
                         that if the regular jurors are ordered to be Eept in
                         custody by the court during the trial of a cause,
                         such alternate juror shall also be kept in confine-
                         ment with the other jurors, and shall be discharged
                         upon final submission of the case to the jury, un-
                         less he is called upon to sit on the panel because
                         of the disability of some acting juror."

            The Court reached the conclusion that such a statute did not contravene the
            South Caroline Constitution, and stated at page 416:

                           "Statutes of this kind are common in many States
                        of the union, and in our opinion do not in any re-
                        spect contravene our constitutional provision. 31
                        Am. Jur. Sec. 99, Page 630; 50 C.J.S., Juries, Sec.
                        123-d, page 842; Annotations, 96 A.L.R. 799, 109
                        A.L.R. 1495. Such a statute is remedial and is in-
                        tended to prevent mistrials in criminal cases of
                        long duration where a juror dies or becomes so ill
                        as to be unable to continue his duties. Similar
                        statutes have been sustained in State v. Dolbow,
                        117 N.J. Law 560, 189 A. 915, log A.L.R. 1488;
                        People V. Mitchell, 266 N.Y. 15, 193 N.E. 445, 96
                        A.L.R. 791; People v. Peete, 54 Cal. App. 333, 202
                        P. 51; and State v. Dalton, 206 N.C. 507, 174 S.E.
                        422."

            A Federal statute providing for alternate jurors was held notto violate
            either the S~ixthAmendment or Article III, Section 2, Clause 3, of the
            United States Constitution, in Robinson v. U.S., 144Frm392   (C.C.A. 6th,
            1944) (affirmed 324 U.S. 282, rehearing denied 324 U.S. 889, rehearing
            denied 325 U.S. 895, motion denied 66 S.Ct. 86).

                We hold, therefore, that H. B. 57, 57th Legislature, amending Article
            680, Code of Criminal Procedure of Texas, to provide for alternate jurors in
            felony cases, is constitutional.


                                               SUMMARY

                         H. B. 57, 57th Legislature, amending Article 680,
                         Code of Criminal Procedure of Texas, to provide
                         for alternate jurors in felony cases, is con-
                         stitutional.
HOG. Bob Eckhdt,      Page 6   (w-998)



                                         yours very truly,

                                         WILL WILSON
                                         Attorney General of Texas




                                         BY
                                           Riley Eugene Fhtcher
                                           Assistant Attorney hu2ral


REF:br

APPROVED:

OPINION COMMIXTEX
W.V. Geppert, Chairman

W. Ray Scmggs
Ray Lof'tin
John Reeves
Marietta Payne

RFXIEWEDFORTHEATTORNEY         GENERAL

BY   Morgan Nesbitt
