Untitled Texas Attorney General Opinion

THEATTORNEYGENERAL
OF TEXAS
A~ex-xiu 11, TEXAS
%VJLL WILSON
*~ORNEYG*NERAL
February 23, 1961
Honorable Bob Eckhardt, Chairman Opinion No. WW-998
Criminal Jurisprudence Committee
House of Representatives Re: Constitutionality of H. B. 57,
Austin, Texas amending Article 680, Code of
Criminal Procedure of Texas,
to provide for alternate jurors
in felony cases'when a juror
becomes unable or disqualified
Dear Mr. Eckhardt: to continue.
The Criminal Jurisprudence Committee of the House of Representatives
has requested an opinion on the constitutionality of H. B. 57, 57th Legis-
lature, which would amend Article 680 of the Code of Criminal Procedure of
Texas, 1925, so as to make Article 680, C. C. P. read as follows:
"In felony cases the courtmay direct that one (1) or two
(2) jurors in addition to the regular jury be called and
impanelled to sit as alternate jurors. Alternate jurors
in the order in which they are called shall replace Jurors
who, prior to the time the jury retires to consider its
verdict, become unable or disqualified to perform their
duties, and the court shall have the power to discharge
such juror or jurors upon the discovery of any fact which
in the opinion of the court renders the juror unable or
disqualified to continue. An alternate juror who does
not replade a regular juror shall be discharged when the
jury retires to consider its verdict. Should a juror be-
come unable or disqualified after the jury retires to con-
sider its verdict, the jury may be discharged. Alternate
jurors shall be drawn in the same manner, shall have the
Same~quaLifications, shall be subject to the same exami-
nation and challenges, shall take the same oath and shall
have the same functions, powers, facilities and privileges
as the regular jurors. Each side is entitled to one (1)
peremptory challenge in addition to those otherwise allowed
by law if any alternate jurors are to be lmpanelled. 'The
additional peremptory challenge may be used against an
alternate Ouror only, and the other peremptory challenges
allowed In this Code may not be used against an alternate
juror."
Section 2 of the bill is a severability caause; Section 3 makes the
bill inapplicable to pending litigation; Section 4 repeals conflicting laws
Hon. Bob Eckhardt, Page 2 (W-998)
and parts of laws; and Section 5 is the emergency clause.
In Greene v. Robinson, 117 Tex. 516, 8 S.W.2d 655, (1928), our Supreme
court of Texas stated at page 656:
"The Legislature is a co-ordinate branch of the
government, created by the people in their Consti-
tution for the especial purpose of enacting the laws
under which the government must be administered.'The
rules and principles to guide a court in determining
the constitutionality of its acts have often been an-
nounced and elaborated upon in the cases. We will not
repeat them, or review them further than to say that
all reasonable doubts will be resolved in favor of
the validity of an act, and that, where an act is sus-
ceptible of a valid construction, that construction
will be given it. We deem it unnecessary to cite
cases."
Article V, Section 13, Texas Constitution, reads in part as follows:
"Grand and petit juries in the District Courts shall
be composed of twelve men; , a . ."
In Clark v. State, 161 Tex. Grim. 278, 276 S.W.2d 819 (less), the ap-
pellant, Clark was being tried by a jury of twelve in the district cour``~w&en
the wife of one of the jurors became seriously ill. It was agreed by all
parties that the case could continue to final determination before the re-
maining eleven jurors. The appellant was convicted. The Court of Criminal
Appeals of Texas stated at page 820:
II
. . . An essential element, then, of the ri~ghtof
trial by jury, in a felony case, is that the jury must
be composed of twelve jurors. . . ."
"If appellant could not waive the constitutional
right to be tried by a jury of twelve jurors, then any
agreement that he may have made consenting thereto
would be ineffective."
There are numerous cases cited in the Clark case, supra, which holds
that eleven jurors may not return a verdict%% felony case.in the district
court. In Bullard ir.State, 38 Tex. 504 (1873),the defendant was tried and
convicted of a felony in the District Court by a jury of thirteen jurors. Ths
Supreme Court of Texas, in reversing and remanding the case, relied on Article
3007, Paschal's Digest. This case occurred before the adoption of our present
Texas Constitution of 1876, but the same rule is incorporated in Article V,
Section 13, Texas Constitution, supra. A grand jury composed of fourteen
grand jurors cannot return a valid indictment. Highsaw v. State, 90 Tex.
Hon. Bob Eckhardt, Page 3 (ti%'-998)
Crim. 200, 234 S.W. 220 (1921). The same is true of a grand jury composed
of thirteen grand jurors. Ogle v. State, 43 Tex. Grim. 219, 63 S.W. 1009
(1901)-
Thus we see that in view of Article V, Section 13, Texas Constitution,
supra, a jury in the district court may not be less than twelve nor more then
twelve. This brings us to the question of the effect of alternate jurors,
who are selected, sworn and impanelled, but who do not retire with the jury
and deliberate on the verdict, until and unless a regular juror becomes dis-
qualified or disabled. Although our present statutes do not provide for
alternate jurors, the Supreme Court of Texas, in the Bullard case, "upra,
did state at page 505, with respect to the 13th juror, that:
II . . if the last juror sworn can be pointed out,
he may be dismissed from the panel, and the trial pro-
ceed before the legally constituted jury. But if more
jurors than the legal number are permitted to deliberate
on the verdict, the verdict should be set aside and a
new trial awarded."
In Davis v. State, 9 Tex. Grim. 634 (1880), one of the jurors~who was summoned
for jury duty was stricken from the list, but thereafter inadvertently got in
the jury box and was sworn as a juror with the twelve regular jurors. The
case had proceeded to the point where both the State and,the Defendant had
rested, when it was discovered that there weEthirteen jurors in the jury box.
The Court dismissed the juror who had been originally stricken from the list,
and the remaining twelve jurors then retired, deliberated, and returned the
verdict. The appellate,court held that this was not error, since the trial
court was able to determine which of the thirteen jurors was not properly on
the jury.
In view of the holdings in the Bullard case and Davis cake, we do not
have any difficulty with the situation where one or morealternates are
chosen, sworn, and hear the evidence and argument of counsel, but who do
not retire with the regular jurors to deliberate, for the trial court can
easily determine who are the regular jurors. In such case only the twelve
regular jurors would retire to deliberate and return a verdict, The problem
of the alternate who replaces a juror during the course of the trial presents
a different .situstion. Does the death, disability, or disqualification of a
regular juror reduce the jury to eleven jurors, so that the reduction of the
jury to eleven regular jurors requires a mistrial under the Texas Constitution?
Or can an alternate juror *ho was sworn at the same time as the regular jurors
were sworn, and who has heard all of the evidence and other proceedings up to
this point, take the disabled or disqualified regular Juror's place, and the
trial proceed? Since we have never had a statute in Texas providing for
alternate jurors, there are no Texas cases to guide us, and we must look to
onhbrrjurisdictions for guidance.
Hon. Bob Eckhardt, Page 4 (w-998)
There are a number of jurisdictions which provide by statute for alter-
nate jurors. It would serve no purpose to collect at this point the cases
from many states upholding the constitutionality of such alternate juror
statutes, since in most of these states their respective state constitutions
do not read like our Texas Constitution on this point. Most states provide
by state constitution for trial by jury, and since no specific number of
jurors is mentioned, it has been held that this means the common law number
of twelve jurors. These states have had no difficulty in finding that a
provision for alternate jurors who do not retire with the regular jury to
deliberate or vote on the verdict when no regular juror is disqualified,
but who can and do replace a disabled juror, is constitutional.
South Carolina, however, has a provision in its constitution which is
very similar to the one found in our Texas Constitution. ArtitileV, Sec-
tion 22 of the South Carolina Constitution, 1895, reads in part was follows:
"The petit jury of the Circuit Court shall'6%nsist
of twelve men, all of whom must agree to a verdict
in order to render the same." [Bmphe~sisadded!
Subsequently, the South Carolina Legislature enacted its alternate
juror;:statute,Section 626-2,Code of 1942. The Supreme Court of South
Carolina apheld the constitutionality of this statute in the case of State
v. McIntire et al, 221 So. Car. 504, 71 S.E.2d 410 (1952). The Courtzed
the problem at page 415:
"Did the trial judge err in directing that there.
should be an alternate or thirteenth juror? The
error assigned, being that in so directing the trial
court deprived appellant of.his-rights under Article
V, Section 22 of our Constitution of 1895, which pro-
vides that the petit jury of the circuit courts shall
consist of twelve men, all of whom must be agreed as
to a verdict in order to render the same.
"By this exception the appellant attacks as uncon-
stitutional Section 626~% of the Code of 1942. This
section grants to the presiding judge, where a trial
is likely to be a protracted one, the right to 'direct
the calling of one or two additional jurors in its dis-
cretion, to be known as alternate jurors.' The section
goes on to provide that any alternate juror as provided
in this section shall sit with the jury panel charged
with the case and shall have the same opportunities for
seeing and hearing the proceedings, and shall take the
same oath as the jurors already sworn. The alternate
juror takes no part in the decision of the case unless
a vacancy occurs on the jury panel through death, illness
. . .
Hon. Bob Eckhardt, Page 5 (w-998)
or other disability. This section likewise protides
that if the regular jurors are ordered to be Eept in
custody by the court during the trial of a cause,
such alternate juror shall also be kept in confine-
ment with the other jurors, and shall be discharged
upon final submission of the case to the jury, un-
less he is called upon to sit on the panel because
of the disability of some acting juror."
The Court reached the conclusion that such a statute did not contravene the
South Caroline Constitution, and stated at page 416:
"Statutes of this kind are common in many States
of the union, and in our opinion do not in any re-
spect contravene our constitutional provision. 31
Am. Jur. Sec. 99, Page 630; 50 C.J.S., Juries, Sec.
123-d, page 842; Annotations, 96 A.L.R. 799, 109
A.L.R. 1495. Such a statute is remedial and is in-
tended to prevent mistrials in criminal cases of
long duration where a juror dies or becomes so ill
as to be unable to continue his duties. Similar
statutes have been sustained in State v. Dolbow,
117 N.J. Law 560, 189 A. 915, log A.L.R. 1488;
People V. Mitchell, 266 N.Y. 15, 193 N.E. 445, 96
A.L.R. 791; People v. Peete, 54 Cal. App. 333, 202
P. 51; and State v. Dalton, 206 N.C. 507, 174 S.E.
422."
A Federal statute providing for alternate jurors was held notto violate
either the S~ixthAmendment or Article III, Section 2, Clause 3, of the
United States Constitution, in Robinson v. U.S., 144Frm392 (C.C.A. 6th,
1944) (affirmed 324 U.S. 282, rehearing denied 324 U.S. 889, rehearing
denied 325 U.S. 895, motion denied 66 S. Ct. 86).
We hold, therefore, that H. B. 57, 57th Legislature, amending Article
680, Code of Criminal Procedure of Texas, to provide for alternate jurors in
felony cases, is constitutional.
SUMMARY
H. B. 57, 57th Legislature, amending Article 680,
Code of Criminal Procedure of Texas, to provide
for alternate jurors in felony cases, is con-
stitutional.
HOG. Bob Eckhdt, Page 6 (w-998)
yours very truly,
WILL WILSON
Attorney General of Texas
BY
Riley Eugene Fhtcher
Assistant Attorney hu2ral
REF:br
APPROVED:
OPINION COMMIXTEX
W.V. Geppert, Chairman
W. Ray Scmggs
Ray Lof'tin
John Reeves
Marietta Payne
RFXIEWEDFORTHEATTORNEY GENERAL
BY Morgan Nesbitt