## THEAYTORNEYGENERAL

Honorable Joe Resweber CountyAttorney Harris County Houston 2, Texas

Dear Sir: Re: Propriety of comparing Poll Tax listwith Property Rolls prior to August 1st and strikingname duplications in preparation for compilation of names for Jury wheel; and statutory construction of words "typist"and "shalltype."
We are in receipt of your letter in which you ask our opinion on the following questions:



## “1 . OF I‘EXAS

MAY1.7, 1961

OpinionNo. ~~-1061

ment that In light of Article 2094's requireselection 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 shownby 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 selectionduring the August 1st and 15thperiod?

“2

. By use of the word 'typists,'and phrase 'shalltype,' does Article 2095prohibit the use of various kinds of mechanical equipment, suchas key punch and other systems?" Article 2094 of Vernon's Civil Statutesprovides in part as follows:

"Betweenthe first and fifteenth days of August of each year, in each countyhaving a population of at least forty-six thousand (46,000), or having therein a city containing a population of at least eighteen thousandHonorable Joe Resweber,page 2 (~~-1061)

(18,000),as shownby the lastpreceding Federal Census,and in each countyhaving two (2) or more District Courtsholding sessions therein, regardless of population, except as hereinafterprovided, 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, shallmeet at the courthouse of their county and select from the list of qualified jurors as shownby the tax lists in the tax assessor's office for the currentyear, the jurors for service in the district and county courts of such county for the ensuingyear, in the manner hereinafterprovided." (Emphasisadded) Article 2095 of Vernon's Civil Statutesprovides in part as follows:

"Saidofficers shallwrite 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 possible, the post-office address of each juror so selected,

. . ." (Emphasisadded) Article 2133 of Vernon's Civil Statutesdefines the qualificationsof a juror.
In Articles 2094 and 2095 of Vernon's Civil Statutes, the Legislature set out, among other things,what counties would comewithin the jurywheel law and provided that "the tax collector or one of his deputies, togetherwith 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 shallmeet at the courthouse"and shall select qualified jurors as shownby the tax list in the tax assessor's office for the currentyear. Said officers, In writing the names of persons down on separate cards, shallplace only those
E?"" 'whoare known to be qualified jurors under the

The question of what part the tax listsplay in these selectionshas long been settled In Texas. The Commissionof Appeals In the case of Northern Texas TractionHonorable Joe Resweber,page 3 (~~-1061)

Co. v. Bryan, 294 S.W. 527 (Comm.App. 1927), in discussing the history of the Jury Wheel system in Texas and the amendment of 1911 to Articles 2094 and 2095, statedat page 530 as follows:

Aside from changing the time of filling the jurywheel from every secondyear to every'year, the only change effected in the Jury Wheel Law by said amendmentwas 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 jurywheel; but did not relieve them of the duty to place in the jurywheel the names of all men residing in the countywho were known to them to be qualified jurorsunder the law, as was prescribedby section 2 of the originalact. We think, therefore, that the provisions of articles 2094 and 2095 contemplatea reasonably diligent effort, on the part of the officers designated therein, to collectand place in the jurywheel the names of all men In the countyhaving the qualificationsof jurors as prescribed by the statutes on that subject, to the end that these men shall be available as jurorswhen jurypanels are drawn from the wheel. The information contained in the tax lists in the tax assessor's office for the currentyear is but an aid provided by law for the performance of this duty. LEmphasls addeg

” In the exercise of reasonable diligenEe'l~theperformance of theirduty 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 (1943) concerning that portion of Article 209fi O-5521 of Vernon's Civil Statuteswhich provides that the names used for filling the jurywheel are obtained "from the tax lists In the tax assessor's office for the currentyear," In part as follows:

n

. . .we are inevitably led to the conclusion that It was the purpose and intent of the Legislature in enactingHonorable Joe Resweber, page 4 (WW-106.l) .,i,, !,,,~~::,,,

',i,,~.'.~

,. the jurywheel law to (a)preserve the availability 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 jurywheel 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 selectionof jurypanels by mechanical means; and (c) to sanctionby law the use of the tax lists In the tax assessor's office for the currentyear as an aid to the designated officers in theirperformance of their duty to see that the names of all those known to be qualified jurorsunder the law find theirway Into the jurywheel. We think the law contemplates that the designated officers shouldbe diligent in their efforts to collect and place in the jurywheel the names of all men in the county having the qualificationsof jurors as prescribedby the statutesof Texas. And always the controlling object to be effected is the placing in the jurywheel of all the qualified jurors in the county." (Emphasisadded) When the designated officers named In the statutemeet between the first and fifteenthdays of August each year to select jurors for service in the district and county courts for the ensuingyear imposed upon them to place the names of all persons "who , such officershave a duty

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 Article 2133 might well appear on the tax rolls and such named officers, if they have knowledge of any of these impediments, are chargedwith the responsibilityof 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 thosenamed in Article 2094 to make the selections, it is our opinion that the District Clerk may prior to the actual selectionof names of qualified jurors to be placed In the jurywheel, make any comparison to avoid duplication or perform any other task so as to aid the officials to place only those names in the jurywheel who are known to be qualified to serve.. .

Honorable Joe Resweber, page 5 (WW-1061)

Your second question concernswhether the word "typists"and the phrase "shall type" as found in Article 2095 prohibits the use of various kinds of mechanical equipment, euch as key punch and other systems. Article 2095 of Vernon's Civil Statutes states in part as follows:

"

. . . except that In countieshaving a population of one hundred and fifty thousand (150,000)or more, according to the lastpreceding Federal Census, the CommlssionersCourt shallprovide out of the jury fund a sum sufficient for the payment of typistsand other expenses. The typists,under the direction, control and supervisionof 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 Legislature in enacting the jurywheel law, stated in part as follows: "(b) to abolish, In counties coming under the provisions of the jurywheel 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 mechanicalmeans;" (Emphasisadded) Black's Law Dictionary, 4th Ed., 1951, describes typewriting as a process of printing letterby letterby the use of a t pewriter, citing State v. Oakland, 69 Kam. 784, 77 Pac. 6&, 696 (1904), in which case the Supreme Court of Kansas held that there was no merit to the appellant's contention that certainnotices, requiredby statute to be "printed",were defectivebecause they were typewritten. The Court declared at page 6%:

I

. Of what consequencewas it whether the le&s in the noticeswere formed by a typewritingmachine or a typesettingmachine?

. . . Printing is now accomplishedby a great variety of machines,

. . . There are casesHonorable Joe Resweber,page 6 (~~-1061)

where there is room for a distinctionbetween typewritingand printing, and in these the languageused in the rule or statute ordinarily indicatesa purpose to differentiateone from the other, but no suchpurpose 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 courtheld at page 112:

"Ithas been held that a typewritten notice is 'orinted'under a statutereaulring 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 distinctivemechanicalproceases. Perhaps the most suitabledefinition 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 engravedplates, or the like. (Emphasisadded) The Legislaturerecognized that countieswith larger populationswould have a more difficult task in placing the names of qualified jurors on separatepieces of paper for the jurywheel, and provided in Article 2095 of Vernon's Civil Statutes that in countieshaving a population of 150,000 or more, the CommissionersCourtwas to provide funds from the jury fund for the payment of expenses to accomplish the provisions of the statute. It recognized that the officersnamed In the statutewould be unable to accomplish this mammoth task In our larger countieswithout undue delay and committingpossible errors. This office has held that the Intent of the Legislature in enacting the jury wheel lawwas In part "toutilize

. + . the selection of jurypanels by mechanicalmeans." To place a restriction on the manner of transcribing the name on a piece of paper of one believed to be a qualifiedperson 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 Intentionwas to provide authority and direction to those who seek to protect their right of trial by jury, and thosewho 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 technicalmeans of accomplishing their duty.

SUMMARY 1. The provisions of Article 2094 of Vernon's Civil Statuteswill not be violatedby a District Clerk in making comparisonsof all tax lists and property rolls to eliminateduplication 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 equlpment, such as key punch and other systems.
Yours very truly,

LFP:afg:ms
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Tom I. McFarllng Martin DeStefano Joe B. McMaster Adistant

REVIEWED FOR THE ATTORNEY GENERAL BY: Morgan Nesbitt