Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 13,2006 I
Mr. Carl Reynolds Opinion No. GA-0422
Administrative Director
Office of Court Administration Re: Confidentiality of grand and petit jury lists
Post Office Box 12066 (RQ-0380-GA)
Austin, Texas 7871 l-2066
Dear Mr. Reynolds:
You ask about the confidentiality of grand and petit jury lists.’ Specifically, you ask us to
address whether judges and clerks are required by law to keep jury lists confidential when dealing
with parties to a case, counsel to parties to a case, and third parties at different points in time, such
as during voir dire, during trial, and after trial. See Request Letter, supra note 1, at 2.
Jury lists are distinct from other information collected in jury selection processes and consist
only ofjurors’ names. See id. at 1; see also Saw v. State, 918 S.W.2d 64,66-67 (Tex. App.-San
Antonio 1996, no writ) (explaining “jury lists” in the context of petit jury organization); c$ T&X.
GOV’TCODEANN. 5 62.0132 (Vernon 2005) (requiring prospective jurors to provide biographic and
demographic information in the form of a questionnaire). We note that the term “jury list” in some
cases refers to the panel of individuals from which a jury is selected, see TEx. GOV’T CODE ANN.
5 62.004 (Vernon Supp. 2005) (drawing names ofprospective petit jurors), and in other cases refers
to the list of names of people who actually serve on a jury, see TEX. CODE Cm. PROC. ANN. art.
35.26 (Vernon Supp. 2005) (list of prospective jurors chosen to serve). The laws that govern petit
and grand jury organization, including the laws governing jury lists, are found in diverse statutes and
do not apply uniformly to all jury lists. For example, the Code of Criminal Procedure contains
provisions relevant only to juries in criminal cases. See generally TEx. CODECRIILI. PROC. ANN. arts.
35.01-.29 (Vernon 1989 & Supp. 2005) (governing the organization of a petit jury in criminal
matters). Thus, the answer to your questions varies depending on the type of jury-whether
s-oned for civil or criminal duty and whether petit or grand-and we therefore will address your
questions separately for each jury type.
‘See Letter from Carl Reynolds, AdministrativeDirector, Office of CourtAdministration,to Honorable Greg
Abbott, Attorney General of Texas (Aug. 17, 2005) (on tile with the Opinion Committee, also available at
http://www.oag.state.tx.us)
[hereinafterRequest Letter].
Mr. Carl Reynolds - Page 2 (GA-0422)
I. General Matters
For both civil and criminal cases, we presume that the courts’ records and proceedings are
open to public scrutiny. See Ashpole it. Millard, 778 S.W.2d 169, 170 (Tex. App.-Houston [lst
Dist.] 1989, no writ) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978), for the
proposition that American courts recognize the public’s general right under the common law to
inspect and copy judicial records); TEX. CODEC&M. PROC.ANN. art. 1.24 (Vernon 2005) (“The
proceedings and trials in all courts shall be open to the general public.“). Furthermore, to the extent
that we will need to construe statutes relevant to your questions, we must give effect to the
legislature’s intent. See TEX. GOV’TCODEANN. §§ 3 11.021, ,023 (Vernon 2005); Albertson s, Inc.
v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999); Soykin Y. State, 818 S.W.2d 782,785 (Tex. Crim.
App. 1991). To do so, we must first attempt to construe statutes according to their plain language,
see In re Canales, 52 S.W.3d 698, 702 (Tex. 2001); Peekv. State, 106 S.W.3d 72,75 (Tex. Crim.
App. 2003), reading the language according to the rules of grammar and common usage, unless it
has acquired a technical meaning, see TEX. GOV’TCODEANN. 5 311.011(a)-(b) (Vernon 2005);
TEX.CODECRIYM. PROC.ANN.art. 3.01 (Vernon 2005). We may also consider, among other things,
a statute’s objectives, the legislative history, and the consequences of a particular construction. See
TEX. GOV’TCODEANN. § 311.023 (Vernon 2005); Boykin, 818 S.W.2d at 785-86.
A. Grand Jury List Confidentiality
Chapter 19 of the Code of Criminal Procedure governs grand jury organization, See
TEX. CODEGRIM.PROC.ANN. arts. 19.01-.42 (Vernon 2005 & Supp. 2005). District judges may
choose to organize a grand jury by means of ajury commission, see id art. 19.01(a) (Vernon 2005),
or by directing that “20 to 125 prospective grand jurors be selected and s-oned in the same
manner as the selection and summons of panels for the trial of civil cases in the district courts,” id.
art. 19.01(b); see also generally TEX. GOV’TCODEANN. $5 62.001-,114 (Vernon 2005 & Supp.
2005) (petit jury organization process in the district courts). In all cases of grand jury organization,
courts collect jury lists consisting of the names of individuals to be summoned as prospective grand
jurors. See, e.g., TEX.CODEGRIM.PROC.ANN.art. 19.09 (Vernon 2005) (describing grand jury list
selected by jury commission); TEX.GOV’TCODEANN. § 62.004 (Vernon Supp. 2005) (describing
petit jury wheel process that also may be used to select grand jury list); TEX. GOV’TCODEANN.
5 62.011 (Vernon 2005) (selection of names for petit jury with aid of electronic or mechanical
equipment that may also be used to select grand jury list). These lists are then delivered by the judge
to the clerk, who hisrequired to swear under oath to keep the lists in a sealed envelope until a time
prescribed by law. See TEX. CODECm. PROC.ANN. art. 19.11 (Vernon 2005) (requiring clerk’s
oath for grand jury list created by commission); TEX.GOV’TCODEANN. 5 62.007(c) (Vernon 2005)
(requiring clerk’s oath for grand jury list created by petit jury organization process). And that time
is the point at which the envelope is unsealed and delivered to the sheriff or constable to issue
s-onses. See TEX.CODECm. PROC.ANN.art. 19.13 (Vernon 2005) (“Clerk shall open lists”);
TEX. GOV’T CODE ANN. § 62.013 Vernon 2005) (“Summons for Jury Service by Sheriff or
Constable”). Beyond these provisions requiring a clerk to keep sealed the envelope containing
prospective grand jurors’ names, we can find no other provision that speaks to a judge’s or clerk’s
duty to keep grand jury lists confidential.
Mr. Carl Reynolds - Page 3 (GA-0422)
You refer us to Code of Criminal Procedure article 19.42 and suggest that this provision may
be relevant to grand jury list confidentiality. See Request Letter, supra note 1, at 2. Article 19.42
makes confidential certain information collected in the grand jury selection process:
(a) Except as provided by Subsection (b), information
collected by the court, court personnel, or prosecuting attorney during
the grand jury selection process about a person who serves as a grand
juror, including the person’s home address, home telephone number,
social security number, driver’s license number, and other personal
information, is confidential and may not be disclosed by the court,
court personnel, or prosecuting attorney.
(b) On a showing of good cause, the court shall permit
disclosure of the information sought to a party to the proceeding.
TEX.CODEGRIM.PROC.ANN.art. 19.42 (Vernon 2005). You ask about ajudge’s or clerk’s duty to
keep confidential all jury lists, including those lists that contain the names of only prospective jurors.
See Request Letter, supra note 1, at 2. Thus, we note first that by the provision’s plain language,
articlel9.42 applies only to information collected about a person “who serves as a grand juror” and
so, regardless of its relevance to grand jury list confidentiality, this provision does not apply to grand
jury lists that contain the names of individuals who were summoned but did not serve. The
provision’s plain language does, however, make confidential certain information collected about a
person who actually served or is serving as a grand juror, “including [ajuror’s] home address, home
telephonenumber, social security number, driver’s licensenumber, andotherpersonal information.”
TEX. CODEWM. PROC.ANN.art. 19.42 (Vernon 2005) (emphasis added). Given this language, it
is incumbent upon us to determine ifjury lists that contain the names of actual grand jurors are the
type of “personal information” considered confidential under this provision’s terms.
Although the proceedings of a grand jury-nce it is organized-are closed to the public,
see id art. 20.011 (enumerating those who may be present during grand jury proceedings); id. art.
20.02(a) (“The proceedings of the grand jury shall be secret.“), there are no similar provisions that
release a court during the grand jury organization process from the general rule articulated in article
1.24 of the Code of Criminal Procedure that the “proceedings and trials in the courts shall be open
to the general public,” id. art. 1.24. Indeed, article 19.27 expressly includes the public in the grand
jury organization process by permitting “any person [to] challenge the array of jurors or any person
presented as a grand juror.” See id art. 19.27; see also id. arts. 19.21-.26 (requiring court to test
juror qualifications and present qualified jurors for impanelment). Therefore, the grand jury
organization process is conducted in open court. As a practical matter, then, grand jurors’ identities
will become public during the grand jury organization process. Consequently, grand jury lists do not
contain “personal information” and must fall outside article 19.42’s bounds. See GEORGEE.DIX&
ROBERTO.DAWSON,~~TEXASPRACTICE:CFUMEVALPRACTICEANDPROCEDURE§ 18.06(2ded.
2001) (stating that the identity of a grand juror is public information despite article 19.42’s language
because the qualifications of potential grand jurors are tested in open court, among other things).
Mr. Carl Reynolds - Page 4 (GA-0422)
Returning to your specific questions, we can find nothing in the law that overcomes the
presumption’ that these lists are public information; therefore, a clerk or a judge has no duty to keep
a grand jury list confidential after the clerk has opened the envelope containing the names of
prospective grand jurors. Until that time, a clerk is specifically obligated to maintain sealed the list
of prospective grand jurors. You do not ask about and we do not consider a judge’s discretionary
authority to seal court records, including grand jury lists, or a clerk’s responsibility in such case.
B. Petit Jury List Confidentiality - Generally
Some provisions affect the confidentiality ofjury lists for all petit juries. You ask
about the lists that courts formally collect, which for petit juries sometimes consist of the names of
citizens summoned as prospective jurors, see TEX.GOV’TCODEANN.5 62.004 (Vernon Supp. 2005)
(“Drawing Names for Jury Lists”), and which, in other instances, consist of the names of the
prospective jurors who have not been stricken by peremptory challenge during the jury selection
process, see TEX.CODEC~. PROC. ANN.art. 35.26 (Vernon Supp. 2005) (jury list returned to clerk
in a criminal matter); TEX. R. CIV. P. 234 (‘jurylist returned to clerk in a civil matter). Similar to
grand jury lists, petit jury lists of prospective jurors-the venire panel-are confidential by law for
a prescribed period, see TEX.GOV’TCODEANN.5 62.007 (Vemon2005) (requiring clerk and clerk’s
deputy to take oath swearing to maintain the list of the venire panel sealed until time authorized by
law), which ends when they are unsealed for the purpose of summoning the jurors. See TEX.GOV’T
CODE ANN. § 62.013 (Vernon 2005) (“Summons for Jury Service by Sheriff or Constable”). In
addition, the petit jurors’ names are expressly required to be revealed to the parties at the time they
announce ready for trial. See, e.g., TEX.R. CIV. P. 224 (requiring provision of jury list to parties in
a civil suit when they announce ready for a civil trial); TEX. CODECm. PROC.ANN. art. 35.01
(Vernon 1989) (requiring the names of the venire panel to be called at the time the parties announce
ready in a’criminal matter); see also Tex. Att’y Gen. Op. No. JC-0405 (2001) at 5,s.
You suggest that section 62.0132 of the Government Code is relevant to the confidentiality
of all petit jury lists because it makes confidential information contained in a jury questionnaire,
which includes a person’s name. See Request Letter, supra note 1, at 1; see also TEx. GOV’T CODE
ANN.3 62.0132 (Vernon 2005) (“The questionnaire must require aperson to provide. . the person’s
. . name . . . .“). Section 62.0132 reads in relevant part:
(f) Except as provided by Subsection (g), information
contained in a completed questionnaire is confidential and is not
subject to the [Public Information Act].
(g) The information contained in a completed questionnaire
may be disclosed to:
(1) a judge assigned to hear a cause of action in which
the respondent to the questionnaire is a potential juror;
“Forboth civil and criminal cases,we presumethatthe cowts’ records and proceedings are open to public
scrutiny. See Ashpole, 778 S.W.2d at 170; TEX. CODEGRIM.PROC.ANN. art. 1.24(Vernon 2005).
Mr. Carl Reynolds - Page 5 (GA-0422)
(2) court personnel; and
(3) a litigant andalitigant’s attorney in a cause of action
in which the respondent to the questionnaire is a potential juror.
TEX.GOV’TCODEANN.§ 62.0132(f)-(g) (V emon 2005). We assume that by bringing our attention
to this statute you understand section 62.0132 to make petit jurors’ names confidential, even when
those names appear on a court record other than the questionnaire. The regulatory scheme for the
petit jury organization process, however, does not support this construction.
The names of the petit jurors who will actually serve are divulged in open court as a matter
of law. See TEX. CODEGRIM.PROC.ANN. art. 35.26 (Vernon Supp. 2005) (“[T]he clerk shall.
call off the. names on the lists that have not been stricken. Those whose names are called
shall be the jury.“) (emphasis added); TEX.R. CIV.P. 234 (“The clerk shall. . . call offthe. namers
on the lists that have not been erased; those whose names are called shall be the jury.“) (emphasis
added). Therefore, adopting the construction that names appearing on a court record other than a
questionnaire are confidential under 62.0132 would lead to the inconsistent result of a clerk having
to simultaneously divulge and keep confidential jury lists. Because it would be impossible under
this construction for a court clerk to comply with section 62.0132, and because we presume the
legislature in writing a law intends a result feasible of execution, see TEX. GOV’TCODEANN.
§ 3 11.021(4) (Vernon ZOOS),we must conclude that the legislature did not intend for jurors’ names
to be information that is confidential under section 62.0132, when the names appear on a jury list.
Section 62.0132 of the Government Code does not impose a duty on a clerk or judge in maintaining
jury lists to keep the lists confidential.
1. ConJdentiality of Petit Jury Lists in a Civil Matter
Specific to petit jury lists in a civil matter, we can find nothing in the law that
overcomes the presumption that these lists are public information and therefore a clerk or a judge
has no duty to keep a petit jury list in a civil matter confidential from any party, counsel to a party,
or third party after the clerk has opened the envelope containing the names of prospective petit
jurors. Thus, in answer to your specific question, there is no duty during voir dire, during trial, and
after trial. You do not ask about and we do not consider a judge’s discretionary authority to seal
court records, including jury lists, or a clerk’s responsibility in such case.
2. ConJdentiality of Petit Jury Lists in a Criminal Matter
With respect to the confidentiality of petit jury lists in a criminal matter, you
suggest that article 35.29 of the Code of Criminal Procedure may be relevant. See Request Letter,
supra note 1, at l-2. Article 35.29 addresses personal information about jurors and provides:
Information collected by the court or by a prosecuting attorney
during the jury selection process about a person who serves as ajuror,
including the juror’s home address, home telephone number, social
Mr. Carl Reynolds - Page 6 (GA-0422)
security number, driver’s license number, and other personal
information, is confidential and may not be disclosed by the court, the
prosecuting attorney, the defense counsel, or any court personnel
except on application by a party in the trial or on application by a
bona tide member of the news media acting in such capacity to the
court in which the person is serving or did serve as a juror. On a
showing of good cause, the court shall permit disclosure of the
information sought.
TEX. CODE Cm. PROC. ANN. art. 35.29 (Vernon Supp. 2005). The language of this provision is
essentially identical to article 19.42’s language, which makes personal information collected about
grandjurors confidential. Compare id art. 35.29, with id art. 19.42 (Vernon 2005). Again, you ask
about a judge’s or clerk’s duty to keep confidential all jury lists, including those lists that contain the
names of only prospective jurors. See Request Letter, supra note 1, at 2. Thus, we note first that by
the provision’s plain language, article 35.29 applies only to information collected about a person
“who serves as a juror” and so, regardless of its relevance to petit jury list confidentiality, this
provision does not apply to petitjury lists that contain the names of individuals who were summoned
but did not serve. Tex. Att’y Gen. Op. No. JC-0405 (2001) at 5-7. Article 35.29’s plain language,
however, does make confidential certain information collected about a person who actually served
or is serving as a petit juror, “including [a juror’s] home address, home telephone number, social
security number, driver’s license number, and otherpersonal information.” TEX. CODECRMPROC.
ANN. art. 35.29 (Vernon Supp. 2005) (emphasis added). Thus, it is again incumbent upon us to
determine if petit jury lists that contain the names of actual petit jurors are the type of “personal
information” considered confidential under this provision’s terms.
In this respect, we return to our analysis of article 19.42 and apply its rationale to article
35.29. There is no provision that releases the petit jury organization process from the general rule
articulated in article 1.24 of the Code of Criminal Procedure that the “proceedings and trials in the
courts shall be open to the general public.” Id. art. 1.24 (Vernon 2005). As a practical matter, then,
petit jurors’ identities will become public at the time the parties to the case announce ready for trial
and the petit jury organization process begins in open court. See id. art. 35.01 (Vernon 1989)
(“When a case is called for trial and the parties have announced ready for trial, the names of those
summoned as jurors in the case shall be called.“) (emphasis added); id. art. 35.26(a) (Vernon Supp.
2005) (after parties have made their peremptory challenges, “the clerk shall . call off the first
twelve names on the lists”) (emphasis added). Therefore, petit jury lists in a criminal matter cannot
be the type of personal information made confidential by article 35.29; and we must conclude that
article 35.29 does not impose a duty on a clerk or judge to keep jury lists confidential.
In sum, we find nothing in the law that overcomes the presumption that petit jury lists in a
criminal matter are public information; therefore, clerks and judges have no duty to keep such lists
confidential from any party, counsel to a party, or third party to a criminal case at any point in time
after the clerk has opened the envelope containing the names of prospective petit jurors. Thus, in
answer to your specific question, there is no duty during voir dire, during trial, and after trial. You
do not ask about and we do not consider a judge’s discretionary authority to seal court records,
including jury lists, or a clerk’s responsibility in such case.
Mr. Carl Reynolds - Page 7 (GA-0422)
SUMMARY
Neither a clerk nor a judge has a duty to keep a grand jury list
confidential after the clerk, in order to s-on the prospective grand
jurors, has opened an envelope containing their names. Until that
time, a clerk is specifically obligated to maintain sealed the list of
prospective grand jurors.
Neither a clerk nor a judge has a duty to keep petit jury lists
confidential from any party, counsel to a party, or third party at any
point in time after the clerk, in order to summon the prospective petit
jurors, has opened the envelope containing the names of prospective
petit jurors.
Attor&y&neral of Texas
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee