Untitled Texas Attorney General Opinion ( 1954 )

Honorable Henry Wade Opinion No. S- 146
District Attorney
Records Building Re: Operative date of the constitu-
Dallas, Texas tional amendment qualifying
women for jury service, and
Dear Mr. Wade: related questions.
You have requested an opinion on two questions relating
to the constitutional amendment which was voted on at the recent gen-
era1 election, making women eligible for jury service in Texas. The
unofficial results of the election indicate that thi,s amendment was
adopted, and your questions are predicated upon the assumption that
the official canvass of the returns will likewise show its adoption.
You have asked the following questions:
1. Is the amendment self-executing, or will it require an
enabling act to place it in effect?
2. If self-executing, on what date will tb amendment be-
come effective ?
Section 19 of Article XVI of the Texas Constitution has
heretofore provided that “the Legislature shall prescribe by law the
qualifications of grand and petit jurors.” Other provisions in the Con-
stitution limited jury service to men. This amendment changes Sec-
tion 19 to read as follows:
“The Legislature shall prescribe by law the quali-
fications of grand and petit jurors; provided that: neither
the rightnor the duty to serve on grand and petit juries
shall be denied or abridged by reason of sex. Whenever
in the Constitution the term ‘men’ is used in reference to
grand or petit juries, such term shall include persons of
the female as well as the male sex.”
A constitutional amendment becomes a part of the Consti-
tution upon the date that the official canvass of the returns shows that
it has been adopted. The effective date does not relate back to the date
of the election at which it was adopted. nor is the effective date post-
poned until the date of the Governor’s proclamation declaring its adop-
tion. Wilson v. State, 15 Tex.Ct.App. 150 (1883); Texas Water & Gas
Co. v. City of Cleburne, 21 S.W. 393 (Tex.Civ.App. 1892); Att’y Gen. Op.
T)-6L78 11944). The returns are canvassed on the seventeenth day after
c- ._
Honorable Henry Wade, page 2 (S-146)
the election. Art. 8.38, Vernon”s Texas Election Code, If the canvass
of this election shows that the amendment carried. it will become a
part of the Constitution on November 19, 1954.
We agree with you that the provision qualifying women
for jury service is self-executing and that it will become operative
upon its effective date without the necessity of legislative action. In
,9 Texas Jurisprudence, Constitutional Law, $ 13, this general rule is
stated:
“A constitutional provision may be said to be self-
executing if it supplies a sufficient rule by means of which
a right given may be enjoyed and,protected or a duty im-
posed may be enforced; it is not self-executing where it
merely indicates a principle, without laytng down any rule
by means of which the principle may be given the force of
law..
See Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 SW. 880 (1898);
Aston v. Allison, 91 S.W.Zd 853 (Tex.Civ.App, 1936).
You have given an able analysis of the application of this
rule to the present amendment, and we are taking the liberty of quot-
ing the following excerpts from, your brief:
“The Legislature has already prescribed the quali-
fications of grand and petit jurors (Art. 2133, R.C.S., and
Art, 339, C.C.P.), using the word ‘men’ and the masculine
pronoun throughout both statutes. The new amendment
merely provides that where the term ‘men’ is used in such
connection, ‘such term shall include persons of the female
as well as’of the male sex.’ This amendment reads into
the present laws the constitutional construction of the term
‘men’ when used in reference to grand and petit juries. If
the Legislature were to meet and proceed, as it undoubtedly
will, to amend Article 2133, R.C.S., and Article 339, C.C.P..
by adding the words ‘and women’ to each of them and, per-
haps, use a common pronoun instead of only the masculine
gender as now, it would add little to the construction of the
statutes as now comprised.
“It is believed that, while there may be certain ac-
commodating statutes passed by the Legislature concerning
service on juries by mothers of small children, separation
of juries in felony cases, and other matters peculiarly af-
fecting women jurors, yet there seems to be nothing essen-
tial that needs to be done to put the amendment into imme-
diate effect insofar as the constitutional mandate is con-
cerned. It is self-sufficient, it would seem, and requires
Honorable ‘Henry Wade, page 3 (S-146)
no enabling act of the Legislature. It would seem that
the Constitution has by this enactment given a dual
meaning to the word ‘men’ in the ‘qualifications’ stat-’
utes and that as soon as the 17 dayshave expired and
the election results canvassed, the right of women.to’.
serve on juries in Texas becomes operative.”
While women will become eligible for jury service as
soon as the amendment becomes effective, itdoes not .follow that all
juries organized after that date will be subject to challenge on the
ground that women were excluded, Although the amendment is self-
executing to remove the disqualification against women, it does not
change the mechanics for selecting jurors.
In counties using the jury wheel, it is our opinion that the
names of women should not be placed in the wheel until the next regu-
lar time for filling it. The jury wheel law requires that the names, be
placed in the wheel between the fir’st and the fifteenth days of August
each year. Art.‘2094, V.C.S. Women were not,,qualified~for,, jury serv-
ice when the present wheels were made up, and-obviously their exclu-
sion at that time was proper. Ar,ticle 417, V.P.C., makes it an offense
to put cards into the wheel,except at, the timesand in the manner pro-
vided for by law, Itshas been held that cards may be added at ,other
times, upon order of a court, so as ,to take in persons whose names
should have been placed in the wheel at the.regular time,,but under
present decisions there seemsto be no other circumstance in which
the officers charged with making up the wheel would be warranted’in
adding cards at other times. Knott v. ,State, 100 TexCrim. 468. 274 U.S.
978 (1925); McNeal v. State, lb1 Tex.Crim. 114, 274 S.W. 981 (1925);
Hart v. State, 101 Tex.CriG?i. 514, 276 S.W.233 (1925); Hodge v. State,
105 Tex. Crim. 396, 288 S.W. 1087 (1926); Briscoe v. State, 106 Tex. Crim.
402, 292 S.W. 893 (1927). In these cases, the jury wheels,as originally
filled were defective because’the names of persons c’oming within the
exempt classes had been intentionally omitted. The Court of.Criminai
Appeals held that the omitted names could’be added at a later time,
but only the names which should have been placed in the whe,el when it
was originally filled in August.
McNeal v. State held that the wheel should be.,refilled from
the tax lists for the previous year, which had;been used in August be-
cause the new lists were not the.n available, even though the new lists
had been completed in the meantime. Thus,,qualified persons on the
new lists whose names did not appear on the old lists were excluded
frorojury service, but this exclu~sion did ~not:%Gtia~tethe wheel! hit :rnay
also be noted that there is no provision for adding the naties’of per-
sons who become qualified, after the wheel is made ,up. by, reasorrof
their reaching the age of 21 years , or attaining the residence require-
ments for voting, or becoming freeholders or householders.
Honorable Henry Wade, page 4 .(S-146)
It is seen that a jury wheel lawfully made up at the regu-
lar time does not become invalid because it does not include all per-
sons qualified for jury service at the time the lists are drawn from it.
It is our opinion that the subsequent enlargement of the group of per-
sons qualified for jury service does not necessitate a change in the jury
wheel before the next regular time for filling it. In any event, we think
the officers charged with the duty of making up the jury wheel cards
should not add the names of qualified women jurors to the wheel before
the regular time’unless it is done under a. court order. If a court should
hold that the present wheels are vitiated by failure to include names of
eligible women, then we think it would be proper to add their names
upon order of the court, as was done in Hart v. State, but until such a
ruling is made we think the additional names should not be placed in
the wheels.
Our opinion on this question is given more for the benefit
and guidance of the officers in charge of the jury wheel than to attempt
to decide what effect the failure to include women will have on the rights
of litigants. However, as already indicated, we believe that juries dr,awn
from the wheels as presently constituted will not be invalidated by the
constitutional amendment. In Glasser v0 State, 315 U.S. 60 (1942). an
act of the Illinois legislature maklngigible for jury service be-
came effective on July 1, 1939. By virtue of a federal statute (then 28
U.S.C,A. 5 411, now 28 U.S.C.A. 5 1861) women became eligible for jury
service in federal courts on that date. But the Illinois law did not re-
quire the placing’ of the names of women on the state jury lists until the
following September. The United States Supreme Court held that although
it was not necessary, in order for women to serve as federal jurors, that
their names appear on the state lists, it was not error to omit the names
of women from the federal jury lists where it was not shown that women’s
names had yet appeared on the state lists, in view of the short time elapsing
between the effective date of the Illinois act and the summoning of the
federal jury used in that case.
Applying the holding in the Glasser case to the present sit-
uation, it appears that a litigant could not complain of the omission of
women during the interval between the effective date of the amendment
and the’next regular time for making up the lists, where there was no
statutory authorization for adding them sooner. The amendment does
not undertake to change the statutory machinery for the formation of
juries, and certainly it was not the intent of the amendment to halt the
administration of justice during this interval. If the present statutes
provided an unreasonably long interval between fillings of the jury wheel,
a litigant might have just cause to object to the omission of women if
the Legislature did not cure the defect. But it is our opinion that the in-
terval which will, elapse in this instance is not unreasonably long.
Commonwealth v. Garletts, 81 Pa. Super. 271 (1923), held
that a jury selected from a jury wheel from which the names of women
..
Honorable Henry Wade, page 5 (S-146)
were excluded was legal, where there was doubt whether women were
qualified for jury service at the time the whe’el was filled. Subsequent
to the time of filling the Supreme Court of Pennsylvania ruled that women
were eligible jurors on the date the wheel was filled, but nevertheless it
was held that in these circumstances the wheel as already filled was
valid. In the present instance, there was no doubt on the question of
qualification of women at the time the wheels were filled last August--
they clearly were not qualified at that time. So this is an even stronger
fact situation than in the Garletts case for saying that the wheels are
not now invalid.
It is oqr opinion that a similar rule will obtain in jury com-
missioner counties. If at the time the jury list was drawn it was a legal
one, the fact that women have since become eligible for jury service will
not vitiate it. Lists drawn in accordance with law prior to November 19
will not be invalid because women were excluded. This rule likewise
will apply to grand jury lists. We are not holding,that lists drawn after
November 19, 1954, will be invalid if they do not contain women. Any
invalidity will result from an intentional exclusion or discrimination
in assembling the names from which the jury lists are drawn. In this
connection, attention is called to the following quotation from the Gar-
-
letts case:
“The president judge and the jury commissioners
were in doubt as to whether women were eligible as jurors
and further, there was an entire absence of suitable ac-
commodations for women jurors. There was no waiting-
room for the women and the accommodations for toilets
was entirely inadequate. There were no separate rooms
for women jurors, nor were there separate rooms to
which women could retire when actually serving upon
juries. There was only one toilet to be used in c~ommon
by three jury rooms, in which juries were deliberating.
There were no beds in any of the rooms and the men
slept on cots. The conditions were such that when a
jury was required to deliberate for days and nights, the
women members thereof could not have any privacy
whatever when nature demanded that all the members
of the jury should be permitted to sleep; unless, in-
deed, they were absolutely separate in a manner which
the law did not permit. The evidence fully warranted
the finding by the court below, in its opinion overrul-
ing the motion to quash, that a reasonable regard for
1
In justice courts, women will be subject to summons for jury serv-
ice immediately upon the effective date of the amendment. Also, they
may be summoned as talesmen in district and county courts.
Honorable Henry -Wade, page 6 (S-146)
propriety and decency suggested that the women be
not required to endure the hardships and offensive
and objectionable experiences to which jury duty
would subject them. . , .
”
. . D It would . ~ . seem to be reasonable
to hold that women ought not to have been required
to serve immediately after their enfranchisement,
during the period of time necessary for the prepara-
tion of such quarters as*p permit of their serving
without undue hardship.
On the matter of separation of jurors in felony cases, the
present law must be complied with until such time as the Legislature
amends it. The obstacles arising under the present statutes are not
insurmountable; with the consent of counsel on both sides, it would be
possible to observe the accepted standards of propriety and at the same
time to comply with the statutes (Articles 623 and 668, V.C.C.P.).
However, it is our opinion that until a reasonable time has elapsed for
providing the necessary facilities and for possible revision of the stat-
utes relating to separation, the failure to include women on jury lists
which may be used in felony cases will,not be ground for challenging
their legality.
You have referred to the likelihood that the next Legisla-
ture will make certain changes in the separation and exemption provi-
sions. Until such changes are made, not only the separation statutes
but the exemption statutes must be followed. A woman summoned for
jury service will not be entitled to an exemption, as a matter of right,
unless she comes within one of the classes presently exempted. Ex-
cuse from jury service because of hardship or other sufficient reason
in individual cases will be within the sound discretion of the judge.
SUMMARY
The constitutional amendment qualifying women
for jury service in Texas will become effective on Nov-
ember 19, 1954. This provision is self-executing, and
women will become eligible for jury duty without further
legislative action.
The Garletts case held that a male litigant could not complain of
the exclusion of women. We are not expressing an opinion on this ques-
tion, as it is beyond the scope or purpose of the present opinion. How-
ever, we will note that there seems to be a split of authority on the ques-
tion in other jurisdictions.
Honorable Henry Wade. page 7 (S-146)
In jury commissioner counties, jury lists which
were drawn before the effective date of the amendment
will not be subject to challenge on the ground that women
were excluded therefrom.
In jury wheel counties, names of qualified women
jurors should not be placed in the wheel until the next
regular time for filling the wheel, which will be in Au-
gust, 1955. Lists drawn from the wheel during the re-
mainder of the current period will not be invalid on the
ground that women are not included.
APPROVED: Yours very truly,
JOHN BEN SHEPPERD
Robert S. Trotti Attorney General
First Assistant
BY
John Ben Shepperd Mary
b
Attorney General Assistant