Untitled Texas Attorney General Opinion ( 1970 )

Honorable Franklin Smith OpinZon No. ,M- 734
County Attorney
Nueces County Courthouse Re: Refilling destroyed jury
Corpus Christi, Texas 78401 wheel.
Dear Mr. Smith:
This is in response to your inquiry concerning the refilling of
the jury wheel in your county.
You have stated that the inclement weather has caused the gummed
labels which were used to fill your jury wheel to become so badly stuck
together as to effectively “destroy” the contents. You have also outlined
the difficulty of re-constructing the contents of the jury wheel from several
‘.
lists. You then ask the following questtons:
1. If the officials of Nueces County who are responsible
for furnishing the jury whee~l, i. e, P Tax Assessor, Sheriff,
District Clerk and County Clerk, determine that the con-
tents of the jury wheel have been “destroyed” and that such
wheel should be refurnished. and such officials determine
that the voter registration list fairly and reasonably re-
flects a cross-section of the population of the county suit-
able in character and intelligence for jury duty, and the
use of the voter registration list exclusively is not tanta-
mount to a subterfuge to discriminate against identifiable
elements of the population, is it legally permissible for
them to refurnish the jury wheel using only the voter regis-
tration list, in view of Article 2q94, et seq, P Revised Civil
Statutes of Texas?
2. In the event this question is answered in the negative,
what are the proper sources from which jurors’ names
should be taken?
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Honorable Franklin Smith, Page 2 (M- 734)
Article 2094, Revised Civil Statutes, provides in pertinent part:
“0 . D The tax collector or one of his deputies. together
with the sheriff or one of his deputies, and the County
Clerk or one of his deputies, and the District Clerk or
one of his deputies, shall meet at the Courthouse of their
county and select from the list of qualified jurors of such
county as shown by the tax lists in the Tax Assessor’s
office for the current year, the jurors for service in the
District and County Courts of such county for the ensuing ~,~I
year, in the manner hereinafter provided.” (Emphasis
added. )
We make no comment as to the validity of your factual presump-
tion.
We feel that the following language from Northern Texas Traction
Co. v. Bryan, 294 S.W. 527, 530 (Tex,Comm.App, 1927, Opinion adopted
by Sup. Ct. ), is controlling:
.’
“In the Original Jury Wheel Act of 1907 there was
disclosed no purpose on the part of the Legislature to
modify these pre-existing statutes in their application
to the class of counties to which the act related, OP to
render unavailable for jury service in these counties any
man having the qualifications prescribed in such statutes,
The primary purpose of said act as may fairly be gathered
from the act as a whole, was to abolish in counties con- .
taining a city of large population the element of discretion ~’
that is involved in the selection. by jury commissioners,
of the individual jurors to make up jury panels and to sub-
stitute a mode of procedure for securing jury panels by
mechanical means, whereby the exercise of choice in the
selection of men for jury service is eliminated. That 2
was the intention of the Legislature to provide means for
the collection of the names of all men in the county who
had the qualifications of jurors under existing law, and
for the placing of these names in the jury wheel from which
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Honorable Franklin Smith, Page 3 (hl- 734)
jury panels were to be drawn from time to time as pro-
vided in the act appears with reasonable certainty from
the title and body of the act. The title recites the purpose
of the act to be “to provide for the selection of jurors in
all counties in Texas having a city or cities therein,
which city or cities contain a population, aggregating
20,000 or more people”; and to repeal, so far as the
above-mentioned counties are affected by them, the pro-
visions of existing statutes relating to the selection of
jurors by Jury Commissioners. Section 1 of the act
provided that the officers designated therein shall “select
from the qualified jurors of the county the jurors for ser-
vice in the district and county courts in such county for
the ensuing two years, in the manner hereinafter provided.”
Section 2 provided, as is now provided in the first clause
of article 2095 quoted above, that “the aforesaid officers
shall write the names of all men who are known to be qual-
ified jurors under the law, residing in their respective
counties, on separate cards of uniform size and color,
writing also on said cards, whenever possible, the post-
office address of the jurors so selected.” Section 3 pro-
vided for the deposit of these cards in the jury wheel, as
is provided in article 2095 quoted above; and the remaining
sections of the act provided the mode of drawing jury panels
from the wheel, by a different set of officers, from time to
time as needed by the courts. It is to be observed that the
only means afforded by the act for the ascertainment and
collection of names to be placed in the jury wheel was the
personal knowledge of the officers designated. These officers
were under no specific duty to resort to any other expedient
than mental operations in attempting to call to mind the names
of all those men known to them to be qualified jurors of the
county. This being the case, the number of men rendered
available for jury service, by having their names placed in
the jury wheel, was subject to be regulated by the extent of
information possessed by said officers and the powers of
recollection of these officers, unaided by reference to any
other source of information.
“[l] In 1911 (chapter 82) the Legislature amended
article 1 of said act by replacing the clause thereof which
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Honorable Franklin Smith, Page 4 (M-734)
has been quoted with the clause of article 2094 set out
above. Aside from changing the time of filling the jury
wheel from every second year to every year, the only
change effected in the Jury Wheel Law by said amendment
was to require said officers to look to the tax lists in the
tax assessor’s office in making selection of names to be
placed in the jury wheel; but did not relieve them of the duty
to place in the jury wheel the names of all men residing
in the county who were known to them to be qualified jurors
under the law, as was prescribed by section 2 of the original
act. We think, therefore, that the provisions of articles
2094 and 2095 contemplate a reasonably diligent effort, on
the part of the officers designated therein, to collect and
place in the jury wheel the names of all men in the county
having the qualifications of jurors as prescribed by the
statutes on that subject, to the end that these men shall be
available as jurors when jury panels are drawn from the
wheel. The information contained in the tax lists in the tax
assessor’s office for the current year is but an aid provided
by law for the performance of his duty.
“There is no room to doubt that the officers who are
required to fill the j,ury wheel have no authority to arbitrarily
withhold from the wheel the names of men appearing on the
tax lists in the tax assessor’s office, who are known by such
officers to be qualified jurors of the county. It is further-,
more reasonably clear, however, that these officers have
authority under the law, and it is their duty, to place in the
wheel the names of all men who, through any other means,
are found by them to be qualified jurors of the county. In
the exercise of reasonable diligence in the performance of
their duty in this respect, it is proper for said officers to
have recourse to the latest approved tax rolls of the county.
This course was pursued on the occasion in question here,
and the requirements of law were substantially satisfied in,
all respects.
1’[2] It is deemed proper to say here that, in seeking the
legislative intent in the clause of the statute in question, we
have kept in mind the rule that a statute should not be given
a meaning which renders its validity doubtful, if it be reason-
ably susceptible of another meaning. If, as contended by
?.
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Honorable Franklin Smith, Page 5 (M-734) r’
counsel, the clause in question has for its purpose the ex-
clusion from jury service, in counties containing a city
with the population named in the act, of all men whose
names do not appear on the tax lists in the assessor’s of-
fice, irrespective of other qualifications possessed, the
validity of the clause would be open to doubt. The Legis-
lature has undoubted authority to prescribe, by general
law, the qualifications of jurors. But, since we have been
unable to discover any relation between a man’s capacity
and fitness for jury service and the size of population of
the county in which he resides, or of a city of such county,
we should entertain grave doubts as to the constitutionality
of a law which undertook to establish a standard, by which
the capacity and fitness of men for jury service are deter-
mined, which varies in the different. counties of the state,
with no basis for such variation other than population. our
interpretation of the meaning and purpose of the clause in
question frees it of this doubt.” (Emphasis added. )
In view of the foregoing authority, that portion of Article 2094 re-
ferring to use of the tax rendition list is to be construed as an aid, and the
proper interpretation of the statute is that it does not justify the use of the
voter registration list as the sole or only source to refurnish the jury wheel.
Article 2095, Vernon’s Civil Statutes, directs the officials to place into the
jury wheel “the names of all persons who are known to be qualified jurors
under the law, residing in their respective counties.” Article 2133, Vernon’s
Civil Statutes, provides that the “failure to register to vote as required by
law shall not be held to disqualify a ~ o for jury service in any instance.”
Since the Legislature has recognized and directed that tax lists (rendition
lists) shall be used, public officials are required to follow such directory
provisions and it is to be legally presumed that they will do so. This is not
to say, however, that failure to do so will necessarily result in reversible
error of a case where harm is not shown to have resulted to the defendant.
See Harrington v. State, 424 S.W.2d 237, 243-244 (Tex.Civ.App. 1968).
To require officials arbitrarily to use voter registration lists only
and to prohibit use of tax rendition lists and other sources is tantamount to
preventing qualified jurors from being selected in the jury wheel only because
of their failure to register to vote. Such action would violate express legis-
lative intent and direction in Article 2133. We, therefore, must reject such
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Honorable Franklin Smith, Page 6 (M- 734)
a construction and apply that construction which will harmonize the statutes.
It is, therefore, our opini,on that the jury wheel in Texas may not
be filled by reference to the voter registration list as the sole eource for
jurors, since the officers required to fill the jury~wheel have an affirma-
tive legal duty to exercise reasonable diligence to place therein all,who may
be found by them,to be qualified jurors, with the right of recourse to the
latest approved tax rolls of the county as well as ‘the voter r~egistration list.
We are unable to answer your second question as it necessarily``re-
quires factual determinations this office has no authority to make., For
general guidelines in this regard, you are referred to the’cited,authorities.
SUMMARY
Where the contents of a jury wheel have been “destroyed”
it must be refilled under the provisions of Article 2094 and
not by reference solely to the voter registration list.
.,,
era1 of Texas
Prepared by Howard M. Fender
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
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Honorable Franklin Smith, Page 7 (M- 73+)
Jay Floyd
Max Flusche
John Reese
Jack Sparks
MEZADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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