### ATTORNEYGENERALOFTEXAS GREG ABBOTT

June 28,2005

The Honorable Mark E. Price Opinion No. GA-0336 San Jacinto County Criminal District Attorney 1State Highway 150, Room 21 Re: Whether ajustice of the peace may establish Coldspring, Texas 7733 1 astanding pool ofqualified volunteers to serve for jury duty (RQ-0306-GA)
Dear Mr. Price:
You ask generally about procedures for summoning ajury for justice court, particularly whether ajustice ofthe peace may establish a standing pool of qualified volunteers to serve forjury duty.’
You inform us that San Jacinto County’s population isabout 20,OOOpersons. Request Letter, supra note 1,at 1. The county is served by two district courts, aconstitutional county court, and four justice ofthe peace precincts with jurisdiction over Class C misdemeanors. See id.;see also 

### TEX. CONST. art. V, 5 16. Each jury in ajustice court consists of six persons. 

### TEX. GOV’TCODEANN. 562.301 (Vernon 2005). You state that many ofthe county’s citizens have not heeded justice courts’ jury summonses, as illustrated by recent experience when only four of seventy-five citizens summoned for prospective jury duty responded.2 Request Letter, supra note 1,at 1. You ask what alternatives ajustice may utilize to guarantee sufficient numbers of citizens forjury duty.3 Id. at 2. In particular, you ask about alternatives under articles 45.027 and 45.028 of the Code of Criminal

‘See Letter from Honorable Mark E. Price, San Jacinto County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Dec. 22, 2004) (on file with Opinion Committee, aZso available at http://www.oag.state.tx.us) [hereinafter Request Letter].

‘The difftculty of obtaining a sufficient response tojury summons is not unique to San Jacinto County. See Tim Eaton, I2 Finedfor Jury No-show; 73 Who Didn’t Appear Again May Face Fines of$1,000, Deputy Visit, Corpus Christi Caller-Times, Feb. 28, 2004, at B 1.

3Senate Bill 1704, passed by the Seventy-ninth Legislature and signed by the Governor, appears designed to encourage jury service. See Act ofMay 27,2005,79th Leg., R.S., S.B. 1704 (to be codified at TEX.GOV’TCODEANN. $9 61.001, .0015,62.0141, .0142). When Senate Bill 1704 becomes effective, it will (1) establish a minimurnpayment of $40 for each day of service after thejuror’s first day; (2) authorize apenalty for knowingly providing false information on arequest for an exemption or to be excused from jury duty; and (3) authorize the clerk to grant a postponement of jury service. This Act takes effect September 1,2005, except that the amendment to section 61.OOland the addition of section 61.0015 will take effect January 1,2006.The Honorable Mark E. Price - Page 2 (GA-0336)

Procedure and whether a standing pool of citizens qualified forjury duty could be established by advertising for volunteers “to make up for non-responses.” Id. at 1.
The statutory provisions for summoning prospective jurors for justice courts are located primarily in chapter 62 of the Government Code and in chapter 45 of the Code of Criminal Procedure. Articles 45.027 and 45.028 of the Code of Criminal Procedure specifically concern the summoning of ajury for criminal trials injustice and municipal courts. 

### TEX. CODEGRIM.

PROC. ANN.arts. 45.027, .028 (Vernon Supp. 2004-05). Article 45.027 provides that when the accused in ajustice court does not waive ajury, thejustice “shall issue a writ commanding the proper officer to summon avenire from which six qualified persons shall be selected to serve asjurors in the case.” Id. art. 45.027(a). Jurors “so summoned shall remain in attendance asjurors in all cases that may come up for hearing until discharged by the court.” Id. art. 45.027(b). Ajustice may fine persons who were summoned forjury duty but who failed to attend not more than $100 for contempt. Id. art. 45.027(c). Under article 45.028, when “a sufficient number ofjurors are not’in attendance,” a justice “shall order the proper officer to summon a sufficient number of qualified persons to form thejury.” Id. art. 45.028. Chapter 45 does not specify procedures for selecting prospective jurors, although the provisions in articles 45.027 and 45.028 have been called the “pick-up” method of summoning jurors. See Cantu v.Samples, 58 1S.W.2d 195,196 (Tex. Civ. App.-San Antonio 1979, no writ). As this office once noted, the pick-up method has been the historic practice injustice courts: Since 1876 it has been the statutory duty of ajustice of the peace to

order the sheriff orconstable to summon anumber oflegally qualified jurors to attend as ajury whenever there are anyjury cases pending for trial.

. . . The sheriff or constable is sworn to select none but impartial, sensible, and sober men having the qualifications ofjurors under the law, and to do it without bias or favor toward any party.
Tex. Att’y Gen Op. No. H-1204 (1978) at 1(citations omitted).
In 1991, however, the legislature authorized justice courts to utilize methods ofjury selection available to county and district courts in chapter 62 ofthe Government Code, such as thejury wheel method. See Act of Mar. 13, 1991,72d Leg., R.S., ch. 7, 1991 Tex. Gen. Laws 9,9-l 1. The jury wheel method begins with aprocess known asreconstituting thejury wheel. To reconstitute ajury wheel, the names of eligible jurors are derived from voter registration lists from all precincts in the county and from a list the Department of Public Safety provides of the names of citizens of the county with avalid driver’s license or personal identification card. See 

### TEX. GOV’TCODEANN.$ 62.001 (Vernon 2005). At least ten days before the first day of the term of court, the district clerk and sheriff or any county constable draw names of prospective justice court jurors from the wheel in the presence and direction of the district judge. Id. 962.004(a)-(b). The names are recorded “on as many lists as thejudge in whose presence the names are drawn considers necessary to ensure an adequate number ofjurors for the term.” Id. 6 62.004(c). This procedure may be repeated at any time during the term ofcourt ifit appears that thejury lists already drawn will be depleted before the end of the term. Id. 9 62.004(f).The Honorable Mark E. Price - Page 3 (GA-0336)

The lists are certified and placed in consecutively numbered envelopes. Id. tj62.006(a)-(b). The justice examines the envelopes and returns them to the clerk’s office. Id. § 62.007(a)-(d). A justice requiring ajury for aparticular week notifies the district clerk ofthat fact, and the clerk opens the next consecutively numbered envelope. Id. $ 62.012(a). The clerk then delivers the list to the sheriff or constable. Id. 9 62.012(b)(2). The sheriff or constable notifies the prospective jurors to appear forjury service either by oral or written summons. Id. $62.0 13(a)-(b)(1)-(2). The summons must include the time, place, and purpose of the appearance, as well as the penalty for failure to appear as required. Id. 4 62.013(d). The code provides for apenalty as follows:
In addition to any criminal penalty prescribed by law, aperson summoned forjury service who does not comply with the summons asrequired by law is subject to acontempt action punishable by afine of not less than $100 nor more than $1,000.
Id. 0 62.0141.
Onthe day when prospective jurors appear for service injustice court, thejustice selects from the names on thejury list a sufficient number of qualified jurors to serve on the jury panel. Id. tj 62.015(a). If the prospective jurors whose names are on the jury list are not present in sufficient numbers, the justice “shall order” the sheriff or constable to summon additional jurors. Id. lj 62.015(b). The names of additional prospective jurors “shall be drawn from thejury wheel.” Id. Chapter 62 contains additional provisions forjury selection available for courts in certain counties. For example, in counties having two district courts (such as San Jacinto), the district judges may attheir discretion utilize thejury wheel to establish ageneral interchangeable juror panel. Id. $62.017. With district judge approval, the general jury panel may be used interchangeably with justice, county, and district courts. Id. $62.017(e). When there is adeficiency ofjurors, the district judge with control of the general panel may order additional names drawn from thejury wheel. Id. 5 62.017(f). Also, onrecommendation of amajority ofthe district and criminal district judges of acounty, the commissioners court may adopt aplan forjury selection by electronic or mechanical equipment instead ofbyjury wheel. Id. 962.011 (a). The plan so adopted must specify that the source ofnames ofprospective jurors isthe same as for thejury wheel method. Id. 362.011 (b)(2). Additionally, the plan must “provide a fair, impartial, and objective method of selecting names of persons forjury service with the aid of electronic or mechanical equipment.” Id. $ 62.01 l(b)(3).
In 1991, when the legislature authorized justice courts to utilize thejury wheel and other jury selection methods previously unavailable tojustice courts, it left articles 45.027 and 45.028 of the Code of Criminal Procedure intact. Harmonizing chapter 62 of the Government Code and articles 45.027 and 45.028 of the Code of Criminal Procedure, we conclude that ajustice court conducting a criminal tial may utilize either the appropriate jury selection method in chapter 62 of the Government Code orthe pick-up method of summoning ajury in chapter 45 ofthe Code of Criminal Procedure. Of course, chapter 45 does not apply tojury trials in non-criminal matters. See 

### TEX.The Honorable Mark E. Price - Page 4 (GA-0336)



### CODECRIM.PROC.

ANN.art.45.027(a) (Vernon Supp. 2004-05) (authorizing avenire summons “[i]f the accused does not waive atrial byjury”) (emphasis added).
You have not elaborated about how thejustice’s proposed vohmteerjuror system might work. However, any system for selecting ajury from apool ofvolunteers would be incompatible with the jury wheel method in chapter 62 of the Government Code, which requires that the names of prospective jurors and supplemental jurors be drawn f?i-om the jury wheel. See 

### TEX. CODEGRIM. PROC. ANN. art. 34.02(a) (Vernon 1989) (in ajury wheel county, supplemental jurors in a criminal case must be selected fi-omthejury wheel). Ifthe county has opted to use electronic or mechanical means ofjury selection under section 62.011 ofthe Government Code, selection ofthe venire must comply with the plan adopted by the commissioners court. TEX. GOV’TCODEANN. 0 62.01 l(a) (Vernon 2005). The plan must “provide afair, impartial, and objective method of selecting names ofpersons forjury service.” Id. $62.01 l(b)(3). The Court of Criminal Appeals has construed this language in the statute prior to codification asrequiring aplan that provides a“random and impartial selection process.” Martinez v. State, 507 S.W.2d 223, 227 (Tex. Crim. App.), cert. denied, 419 U.S. 969 (1974) (noting also that the district clerk must be the officer in charge of administering the plan). Although we cannot determine the issue as a matter of law, it is difficult to discern how selection of potential jurors from apool of volunteers rather than from the county at large could be considered random.
Ajustice court empaneling ajury under chapter 45 of the Code of Criminal Procedure may not adopt procedures inconsistent with articles 45.027 and 45.028. 

### TEX. CODEGRIM.

PROC. ANN. arts. 45.027, .028 (Vernon Supp. 2004-05). These articles provide that the justice “issue a writ commanding the proper officer to summon a venire” and order the officer to summon additional jurors if necessary. Id. Articles 45.027 and 45.028 do not expressly confine the sheriff or constable’s discretion to aparticular process for summoning prospective jurors. Id. However, the pick-up jury method itself has been criticized because in practice it often “leads to the formation of groups ofprofessional jurors who gather around the courthouse with the hope ofbeing called forjury duty; that the sheriff selects his talesmen from these groups because of their proximity and convenience.” Robert W. Stayton & Thomas N. Watkins, Jr., Z?ze“Pick-Up “July, 19Tex. L. Rev. 142,152 (1941). Seealso Henson v. Wjv-ick,634 F.2d 1080,1083 (8th Cir. 1980), cert. denied, 450 U.S. 958 (1981) (noting that many federal and “state courts have also expressed concern over the unbridled discretion of officials in the selection ofbystander jurors”). Moreover, institutionalizing avolunteer system may raise constitutional concerns. Due process requires that the source of ajury

“reflect across section ofthe population suitable in character and intelligence forjury duty.” Shelby v. State, 479 S.W.2d 31,40 (Tex. Crim. App. 1972). Although ajury list need not perfectly reflect the composition of the community, see Swain v.AZabama, 380 U.S. 202 (1965), nevertheless the method ofjury selection must not systematically exclude a “distinctive group” of the community, resulting in under-representation in the venires. SeePondexter v. State, 942 S.W.2d 577,580 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997). While we cannot say that a system for selecting potential jurors relying on volunteers would be unconstitutional as amatter of law, such a system must guard against such a challenge.The Honorable Mark E. Price - Page 5 (GA-0336)

SUMMARY Chapter 62 of the Government Code provides broadly for summoning juries for trial in ajustice court. Articles 45.027 and 45.028 of the Code of Criminal Procedure additionally provide for summoning ajury for a criminal trial in ajustice court. For the trial of a criminal matter, ajustice court may utilize the procedures in either chapter 62 of the Government Code or articles 45.027 and 45.028 ofthe Code ofCriminal Procedure. While articles 45.027 and 45.028 do not prohibit utilizing apool ofvolunteers for empaneling a venire, such a method must guard against a due process challenge that it systematically excludes a distinctive group in the community from the venire.

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
William A. Hill Assistant Attorney General, Opinion Committee