ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 28,2005 

The Honorable Mark E. Price Opinion No. GA-0336 

San Jacinto County Criminal District Attorney 

1 State Highway 150, Room 2 1 Re: Whether a justice of the peace may establish 

Coldspring, Texas 7733 1 a standing pool of qualified volunteers to serve for 

jury duty (RQ-0306-GA) 

Dear Mr. Price: 

You ask generally about procedures for summoning a jury for justice court, particularly 

whether a justice of the peace may establish a standing pool of qualified volunteers to serve for jury 

duty.’ 

You inform us that San Jacinto County’s population is about 20,OOOpersons. Request Letter, 

supra note 1, at 1. The county is served by two district courts, a constitutional county court, and four 

justice of the peace precincts with jurisdiction over Class C misdemeanors. See id.; see also TEX. 

CONST. art. V, 5 16. Each jury in a justice court consists of six persons. TEX. GOV’T CODE ANN. 

5 62.301 (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 a justice may utilize to guarantee sufficient numbers of citizens for jury 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 to jury 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 of May 27,2005,79th Leg., R.S., S.B. 1704 ( to be codified at TEX. GOV’T CODE ANN. 

$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 the juror’s first day; (2) authorize a penalty for knowingly providing false information 

on a request 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 .OOl and 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 for jury 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 a jury for criminal trials in justice and municipal courts. TEX. CODE GRIM. PROC. 

ANN. arts. 45.027, .028 (Vernon Supp. 2004-05). Article 45.027 provides that when the accused in 

a justice court does not waive a jury, the justice “shall issue a writ commanding the proper officer 

to summon a venire from which six qualified persons shall be selected to serve as jurors in the case.” 

Id. art. 45.027(a). Jurors “so summoned shall remain in attendance as jurors in all cases that may 

come up for hearing until discharged by the court.” Id. art. 45.027(b). A justice may fine persons 

who were summoned for jury 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 

the jury.” 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 1 S.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 in justice 

courts: 

Since 1876 it has been the statutory duty of a justice of the peace to 

order the sheriff or constable to summon a number of legally qualified 

jurors to attend as a jury whenever there are any jury cases pending 

for trial. . . . The sheriff or constable is sworn to select none but 

impartial, sensible, and sober men having the qualifications of jurors 

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 of the Government Code, such as the jury 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 a process known as reconstituting the jury wheel. To reconstitute a jury 

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 a valid driver’s license or personal identification card. See TEX. GOV’T CODE ANN. $ 

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. 9 62.004(a)-(b). The names are recorded “on 

as many lists as the judge in whose presence the names are drawn considers necessary to ensure an 

adequate number of jurors for the term.” Id. 6 62.004(c). This procedure may be repeated at any 

time during the term of court if it appears that the jury 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. tj 62.006(a)-(b). 

The justice examines the envelopes and returns them to the clerk’s office. Id. § 62.007(a)-(d). A 

justice requiring a jury for a particular week notifies the district clerk of that 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 for jury 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 a penalty as follows: 

In addition to any criminal penalty prescribed by law, a person 

summoned for jury service who does not comply with the summons 

as required by law is subject to a contempt action punishable by a fine 

of not less than $100 nor more than $1,000. 

Id. 0 62.0141. 

On the day when prospective jurors appear for service in justice court, the justice selects from 

the names on the jury 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 the jury wheel.” Id. 

Chapter 62 contains additional provisions for jury selection available for courts in certain 

counties. For example, in counties having two district courts (such as San Jacinto), the district 

judges may at their discretion utilize the jury wheel to establish a general 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 a deficiency ofjurors, the district 

judge with control of the general panel may order additional names drawn from the jury wheel. Id. 

5 62.017(f). 

Also, on recommendation of a majority of the district and criminal district judges of a county, 

the commissioners court may adopt a plan for jury selection by electronic or mechanical equipment 

instead of by jury wheel. Id. 9 62.011 (a). The plan so adopted must specify that the source of names 

of prospective jurors is the same as for the jury wheel method. Id. 3 62.011 (b)(2). Additionally, the 

plan must “provide a fair, impartial, and objective method of selecting names of persons for jury 

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 the jury wheel and other jury 

selection methods previously unavailable to justice 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 a justice court conducting 

a criminal tial may utilize either the appropriate jury selection method in chapter 62 of the 

Government Code or the pick-up method of summoning a jury in chapter 45 of the Code of Criminal 

Procedure. Of course, chapter 45 does not apply to jury 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 a trial by jury”) (emphasis added). 

You have not elaborated about how the justice’s proposed vohmteerjuror system might work. 

However, any system for selecting a jury from a pool of volunteers 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. CODE GRIM. 

PROC. ANN. art. 34.02(a) (Vernon 1989) (in a jury wheel county, supplemental jurors in a criminal 

case must be selected fi-om the jury wheel). If the county has opted to use electronic or mechanical 

means of jury selection under section 62.011 of the Government Code, selection of the venire must 

comply with the plan adopted by the commissioners court. TEX. GOV’T CODE ANN. 0 62.01 l(a) 

(Vernon 2005). The plan must “provide a fair, impartial, and objective method of selecting names 

of persons for jury service.” Id. $62.01 l(b)(3). The Court of Criminal Appeals has construed this 

language in the statute prior to codification as requiring a plan 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 a pool of volunteers rather than from the county at large could be 

considered random. 

A justice court empaneling a jury under chapter 45 of the Code of Criminal Procedure may 

not adopt procedures inconsistent with articles 45.027 and 45.028. TEX. CODE GRIM. 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 a particular 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 for jury 

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, 19 Tex. 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 of bystander jurors”). Moreover, institutionalizing 

a volunteer system may raise constitutional concerns. Due process requires that the source of a jury 

“reflect a cross section of the population suitable in character and intelligence for jury duty.” Shelby 

v. State, 479 S.W.2d 3 1,40 (Tex. Crim. App. 1972). Although a jury list need not perfectly reflect 

the composition of the community, see Swain v. AZabama, 380 U.S. 202 (1965), nevertheless the 

method of jury selection must not systematically exclude a “distinctive group” of the community, 

resulting in under-representation in the venires. See Pondexter 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 a matter 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 a justice court. Articles 45.027 and 

45.028 of the Code of Criminal Procedure additionally provide for 

summoning a jury for a criminal trial in a justice court. For the trial 

of a criminal matter, a justice court may utilize the procedures in 

either chapter 62 of the Government Code or articles 45.027 and 

45.028 ofthe Code of Criminal Procedure. While articles 45.027 and 

45.028 do not prohibit utilizing a pool of volunteers 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