Untitled Texas Attorney General Opinion ( 1960 )

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~A``O``'EYGENEILAL
OF TEXAS
AUSTIN 11. -
‘IYILL WILSON
A--G- August 22, 1960
Honorable Jimmy Morris Oplnlon No. Ww-910
County Attorney
Navarro County Re: Does Article 2135,
Corsicana, Texas Vernon's Civil Stat-
utes, relating to
jury service apply to
members of the Grand
Dear Mr. Morris: Jury Panel?
In your letter requesting an opinjon from this office
you ask whether Article 2135, Vernon's Civil Statutes, as
amended, applies to members of the Grand Jury Panel.
You state In your letter that:
"No where in the Code of Criminal Pro-
cedure is there a provision for excuses for
members of the Grand Jury Panel. . . .'
Article 339, Vernon's Code of Criminal Procedure, sets
out the qualifications of a grand juror. Article 352 of the
Code of Criminal Procedure provides that the court shall
prcceed to teat the qualifications of those summoned to serve
as grand jurors. Article 356 provldeathat the court may
excuse those persons summoned who do not possess the necessary
qual?flcations.
Under Article 356, Vernon's Code of Criminal Procedure,
it has been held that a court may excuse from service on the
grand jury citizens whose reasons as presented to the court
appeal to his sound discretion and are such,as to justify his
action. Rob~insonv. State, 244 S.W. 599 (Tex. Grim. 19.12).
Article 2135, Vernon's Civil Statutes, applies to exemp-
tions and not to excuses. It provides in part that:
"All competent jurors are liable to
jury tervice, except the following persons:
. . .
Honorable Jimmy Morris, page 2 (WW-910)
Then follows a list of those persons who are exempt
from jury service.
It is well settled that those persons ,exempt from jury
service under Article 2135, Vernon's Civil Statutes, are
not disqualified from grand jury service, but that the exemp-
tion is a personal privilege to be claimed or waived by them,
and that it Is only when they claim their exemption that they
are entitled to be released from grand ury service. Owens
v. State, 8 S.W. 658 (Tex. Ct. App.~l884 ); Edgar v. State,
127 1053 (Tex. Crlm. 1910); 20-B Tex. vd
Jury, Section 12.
Section 3, 39 Tex. Jur. "Statutes," p. 12, reads in
part as follows:
9,
. . . Nor is it necessarily essential that
a given provision be placed in a particular code
in order that it may be effective; on the con-
trary an article of the Penal Code may Impose a
civil duty, or the Civil Statutes may contain pro-
visions governing the trial of~both civil and
criminal cases. . . .It
Further, Article 336 of the Code of Criminal Procedure
states in part:
" . . . The clerk shall furnish . . . 'the
names of those appearing from the records of
the court to be exempt or disqualified from
serving eon the jury . . .n,,(Emphasis added)
Inasmuch as the word ekempt was used in the above statute
and Is not mentioned further In the Code of Criminal Procedure,
and in view of the other statutes and cases cited above, it
is the opinionof this office that Article 2135, Vernon's
Civil Statutes, does apply to members of a grand jury panel.
SUMMARY
Under Article~356, Vernon's Code of Criminal
Prokedure, a'court may excuse from grand jury
service citizens whose reasons appeal to his
sound discretion. Those persons classified
as exempt under Article 2135, Vernon's Civil
Honorable Jimmy Morris, page 3 @W-910)
Statutes, are entitled to be released from
grand jury service If they claim their exemp-
tion.
Yours very truly,
WILL WILSON
Attorney General of Texas
MJS:mm:ms Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
C. Dean Davis
Riley Eugene Fletcher
Phocion S. Park III
Iola B. Wilcox
$IEWED FOR THE ATTORNEY GENERAL
: Houghton Brownlee, Jr.