Untitled Texas Attorney General Opinion ( 1961 )

THEAYTORNEYGENERAL
OF I‘EXAS
MAY 1.7, 1961
Honorable Joe Resweber Opinion No. ``-1061
County Attorney
Harris County Re: Propriety of comparing
Houston 2, Texas Poll Tax list with Property
Rolls prior to August 1st
and striking name duplica-
tions in preparation for
compilation of names for
Jury wheel; and statutory
construction of words
Dear Sir: "typist" and "shall type."
We are in receipt of your letter in which you ask our
opinion on the following questions:
“1. In light of Article 2094's require-
ment that selection
. of jurors for
_ service in
the district and county courts be made 'between
the first and fifteenth days of August of each
year' from the list of qualified jcrors in the
county as shown by current tax lists, may the
District Clerk, prior to August lst, make a
comparison of the poll tax lists and property
rolls to eliminate duplication of qualified
jurors' names theron, in furtherance of their
selection during the August 1st and 15th period?
“2 . By use of the word 'typists,' and
phrase 'shall type,' does Article 2095 prohibit
the use of various kinds of mechanical equipment,
such as key punch and other systems?"
Article 2094 of Vernon's Civil Statutes provides in part
as follows:
"Between the first and fifteenth days of
August of each year, in each county having a
population of at least forty-six thousand
(46,000), or having therein a city containing
a population of at least eighteen thousand
Honorable Joe Resweber, page 2 (``-1061)
(18,000), as shown by the last preceding
Federal Census, and in each county having
two (2) or more District Courts holding
sessions therein, regardless of population,
except as hereinafter provided, 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
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 year, in the manner
hereinafter provided." (Emphasis added)
Article 2095 of Vernon's Civil Statutes provides in
part as follows:
"Said officers shall write the names of
all persons who are known to be qualified jurors
under the law, residing in their respective
counties, on separate cards of uniform size and
color, writing also on said cards, whenever possi-
ble, the post-office address of each juror so
selected, . . ." (Emphasis added)
Article 2133 of Vernon's Civil Statutes defines the
qualifications of a juror.
In Articles 2094 and 2095 of Vernon's Civil Statutes,
the Legislature set out, among other things, what counties
would come within the jury wheel law and provided that "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" and shall select qualified
jurors as shown by the tax list in the tax assessor's office
for the current year. Said officers, In writing the names
of persons down on separate cards, shall place only those
'who are known to be qualified jurors under the
E?" The question of what part the tax lists play
in these selections has long been settled In Texas. The
Commission of Appeals In the case of Northern Texas Traction
Honorable Joe Resweber, page 3 (``-1061)
Co. v. Bryan, 294 S.W. 527 (Comm. App. 1927), in discuss-
ing the history of the Jury Wheel system in Texas and the
amendment of 1911 to Articles 2094 and 2095, stated at
page 530 as follows:
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 re-
quire said officers to look to the tax lists
In the tax assessor's office in making selec-
tion 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 resid-
ing in the county who were known to them to
be qualified jurors under the law, as was pre-
scribed by section 2 of the original act. We
think, therefore, that the provisions of arti-
cles 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 this duty. LEmphasls addeg
”
In the exercise of reasonable
diligenEe'l~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 office held in Attorney General's 0 inion O-5521
(1943) concerning that portion of Article 209fiof Vernon's
Civil Statutes which provides that the names used for
filling the jury wheel are obtained "from the tax lists
In the tax assessor's office for the current year," In
part as follows:
n . . . we are inevitably led to the
conclusion that It was the purpose and
intent of the Legislature in enacting
Honorable Joe Resweber, page 4 (WW-106.l)
.,i,,
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',i,,~.'.~
,.
the jury wheel law to (a) preserve the avail-
ability as jurors of all men in the county
qualified for jury service under the general
law; (b) to abolish in counties coming under
the provisions of the jury wheel law, the
element of discretion involved in the selec-
tion, by jury commissioners, of the individual
jurors to make up jury panels, and to utilize
instead the selection of jury panels by mechani-
cal means; and (c) to sanction by law the use
of the tax lists In the tax assessor's office
for the current year as an aid to the designat-
ed officers in their performance of their duty
to see that the names of all those known to be
qualified jurors under the law find their way
Into the jury wheel. We think the law contem-
plates that the designated officers should be
diligent in their efforts 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 of Texas. And
always the controlling object to be effected
is the placing in the jury wheel of all the
qualified jurors in the county." (Emphasis added)
When the designated officers named In the statute meet
between the first and fifteenth days of August each year
to select jurors for service in the district and county
courts for the ensuing year , such officers have a duty
imposed upon them to place the names of all persons "who
are known to be qualified jurors under the law, residing
In their respective counties on separate cards." It
follows that not all persons whose names appear on the
tax rolls are qualified jurors as those qualifications
are defined in Article 2133 of Vernon's Civil Statutes.
The names of minors, incompetents, felons, non-residents
of the county and names of others not qualified under Arti-
cle 2133 might well appear on the tax rolls and such named
officers, if they have knowledge of any of these impediments,
are charged with the responsibility of not placing their
names in the wheel.
Because the jury lists are not all Inclusive, but are
to be used merely as an aid to those named in Article 2094
to make the selections, it is our opinion that the District
Clerk may prior to the actual selection of names of
qualified jurors to be placed In the jury wheel, make any
comparison to avoid duplication or perform any other task
so as to aid the officials to place only those names in
the jury wheel who are known to be qualified to serve.
. .
Honorable Joe Resweber, page 5 (WW-1061)
Your second question concerns whether the word
"typists" and the phrase "shall type" as found in Arti-
cle 2095 prohibits the use of various kinds of mechani-
cal equipment, euch as key punch and other systems.
Article 2095 of Vernon's Civil Statutes states in
part as follows:
". . . except that In counties having
a population of one hundred and fifty thousand
(150,000) or more, according to the last pre-
ceding Federal Census, the Commlssioners Court
shall provide out of the jury fund a sum suf-
ficient for the payment of typists and other
expenses. The typists, under the direction,
control and supervision of the District Clerk,
shall type the names and addresses of qualified
jurors upon the cards as herein described. . . ."
As stated above, this office, In Attorney General's
Opinion o-5521, in Interpreting the intemt of the Legisla-
ture in enacting the jury wheel law, stated in part as
follows:
"(b) to abolish, In counties coming
under the provisions of the jury wheel law,
the element of discretion involved in the
selection, by jury commissioners, of the
individual jurors to make up jury panels,
and to utilize instead the selection of jury
panels by mechanical means;" (Emphasis added)
Black's Law Dictionary, 4th Ed., 1951, describes type-
writing as a process of printing letter by letter by the
use of a t pewriter, citing State v. Oakland, 69 Kam. 784,
77 P. 6&, 696 (1904), in which case the Supreme Court
of Kansas held that there was no merit to the appellant's
contention that certain notices, required by statute to be
"printed", were defective because they were typewritten.
The Court declared at page 6%:
I . Of what consequence was it whether
the le&s in the notices were formed by a
typewriting machine or a typesetting machine?
. . . Printing is now accomplished by a great
variety of machines, . . . There are cases
Honorable Joe Resweber, page 6 (``-1061)
where there is room for a distinction between
typewriting and printing, and in these the
language used in the rule or statute ordinarily
indicates a purpose to differentiate one from
the other, but no such purpose Is apparent in
the statute in question. . . .'
In the case of In Re Sonora Daily 1.08 Calif. 2d 53,
238 P.2d 111 (1951), the court dlscusse~ the word "printed"
as was stated in a statute. That court held at page 112:
"It has been held that a typewritten
notice is 'orinted' under a statute reaulr-
ing the posting of printed notices. State
v. City of Oakland, 69 Kan. 784, 77 P. 694,
696. . . . Suffice it to say at this point
that the word 'print' may be used to describe
a large number of distinctive mechanical proc-
eases. Perhaps the most suitable definition
of the general sense of the verb is that found
in Webster's dictionary, 'to strike off an
Impression or Impressions of, from type, or
from stereotype, electrotype, or engraved plates,
or the like. (Emphasis added)
The Legislature recognized that counties with larger
populations would have a more difficult task in placing the
names of qualified jurors on separate pieces of paper for
the jury wheel, and provided in Article 2095 of Vernon's
Civil Statutes that in counties having a population of
150,000 or more, the Commissioners Court was to provide
funds from the jury fund for the payment of expenses to
accomplish the provisions of the statute. It recognized
that the officers named In the statute would be unable to
accomplish this mammoth task In our larger counties without
undue delay and committing possible errors. This office has
held that the Intent of the Legislature in enacting the jury
wheel law was In part "to utilize . + . the selection of
jury panels by mechanical means." To place a restriction
on the manner of transcribing the name on a piece of paper
of one believed to be a qualified person to serve on a jury
would be, In our opinion, defeating the very intent of the
Legislature. In reading Articles 2094 and 2095, there can
be little doubt that the Legislature's Intention was to
provide authority and direction to those who seek to pro-
tect their right of trial by jury, and those who qualify as
to their obligation of citizenship, a fair and adequate
method of jury selection, rather than placing limitations
. .
Honorable Joe Resweber, page 7 (~-1061)
on those officials of technical means of accomplishing
their duty.
SUMMARY
1. The provisions of Article 2094
of Vernon's Civil Statutes will
not be violated by a District
Clerk in making comparisons of
all tax lists and property rolls
to eliminate duplication of
potential qualified jurors' names
prior to August 1st.
2. Article 2095 of Vernon's Civil
Statutes, by its use of the word
"type" and phrase "shall type",
does not prohibit the use of
various kinds of mechanical equlp-
ment, such as key punch and other
systems.
Yours very truly,
LFP:afg:ms Adistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Tom I. McFarllng
Martin DeStefano
Joe B. McMaster
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt