Honorable Henry Wade Opinion No. S- 146 District Attorney Records Building Re: Operative date ofthe constituDallas, Texas tional amendment qualifying women for jury service, and Dear Mr. Wade: related questions.

You have requested an opinion ontwo questions relating to the constitutional amendment which was voted on atthe recent genera1 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 ofthe 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 ineffect?

2. Ifself-executing, onwhat date will tb amendment become effective ?

Section 19 ofArticle XVI ofthe Texas Constitution has heretofore provided that “the Legislature shall prescribe by law the qualifications of grand and petit jurors.” Other provisions inthe Constitution limited jury service to men. This amendment changes Section 19to read as follows:

“The Legislature shall prescribe by law the qualifications 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 inthe 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 ofthe Constitution upon the date that the official canvass ofthe returns shows that it has been adopted. The effective date does not relate back to the date ofthe election atwhich itwas adopted. nor is the effective date postponed until the date ofthe Governor’s proclamation declaring its adoption. Wilson v. State, 15 Tex.Ct.App. 150 (1883); Texas Water &Gas Co. v. City ofCleburne, 21 S.W. 393 (Tex.Civ.App. 1892); Att’y Gen. Op. T)-6L78 11944). The returns are canvassed onthe seventeenth day afterc- ._

Honorable Henry Wade, page 2 (S-146)

the election. Art. 8.38, Vernon”s Texas Election Code, Ifthe canvass ofthis election shows that the amendment carried. it will become a part ofthe Constitution onNovember 19, 1954.

We agree with you that the provision qualifying women for jury service is self-executing and that itwill become operative upon its effective date without the necessity of legislative action. In ,9Texas Jurisprudence, Constitutional Law, $ 13, this general rule is stated:
“A constitutional provision may be said to be selfexecuting if it supplies a sufficient rule by means ofwhich a right given may be enjoyed and,protected or a duty imposed may be enforced; it is not self-executing where it merely indicates a principle, without laytng down any rule by means ofwhich 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 ofthe application ofthis rule to the present amendment, andwe are taking the liberty ofquoting the following excerpts from, your brief:

“The Legislature has already prescribed the qualifications 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 thatwhere the term ‘men’ is used in such connection, ‘such term shall include persons ofthe female as well as’of the male sex.’ This amendment reads into the present laws the constitutional construction ofthe term

‘men’ when used in reference to grand and petit juries. If the Legislature were to meet and proceed, as itundoubtedly will, to amend Article 2133, R.C.S., and Article 339, C.C.P.. by adding thewords ‘andwomen’ to each ofthem and, perhaps, use a common pronoun instead of only the masculine gender as now, itwould add little tothe construction ofthe statutes as now comprised.

“It is believed that, while there may be certain accommodating statutes passed by the Legislature concerning service onjuries by mothers of small children, separation ofjuries in felony cases, and other matters peculiarly affecting women jurors, yet there seems to be nothing essential that needs tobe done to put the amendment into immediate effect insofar as the constitutional mandate is concerned. Itis self-sufficient, itwould seem, and requiresHonorable ‘Henry Wade, page 3 (S-146)

no enabling act ofthe Legislature. Itwould seem that the Constitution has by this enactment given adual meaning to the word ‘men’ inthe ‘qualifications’ stat-’ utes and that as soon as the 17dayshave expired and the election results canvassed, the right ofwomen.to’

. serve onjuries 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 onthe ground that women were excluded, Although the amendment is selfexecuting to remove the disqualification against women, it does not change the mechanics for selecting jurors.

Incounties using thejury wheel, it is our opinion that the names ofwomen should not be placed in thewheel until the next regular time for filling it. The jury wheel law requires that the names, be placed inthewheel between the fir’st and the fifteenth days ofAugust each year. Art.‘2094, V.C.S. Women were not,,qualified~for,, jury service when the present wheels were made up, and-obviously their exclusion at that time was proper. Ar,ticle 417, V.P.C., makes it an offense to putcards into the wheel,except at,the timesand in the manner provided for by law, Its has been held that cards may be added at,other times, upon order ofa court, so as ,totake in persons whose names should have been placed inthe wheel atthe.regular time,,but under present decisions there seemsto be no other circumstance inwhich the officers charged with making upthe 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). Inthese cases, thejury wheels,as originally filled were defective because’the names ofpersons 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 thewhe,el when it was originally filled inAugust.

McNeal v. State held that the wheel should be.,refilled from the tax lists for the previous year, which had;been used inAugust because the new lists were not the.navailable, even though the new lists had been completed inthe meantime. Thus,,qualified persons on the new lists whose names did not appear onthe old lists were excluded frorojury service, but this exclu~sion did~not:%Gtia~tethewheel! hit:rnay also be noted that there is no provision for adding the naties’of persons who become qualified, after the wheel is made ,up.by,reasorrof their reaching the age of 21 years , or attaining the residence requirements for voting, or becoming freeholders or householders.Honorable Henry Wade, page 4.(S-146)

Itis seen that ajury wheel lawfully made up at the regular time does not become invalid because it does not include all persons qualified for jury service at the time the lists are drawn from it. Itis our opinion that the subsequent enlargement ofthe group of persons qualified for jury service does not necessitate a change in thejury wheel before the next regular time for filling it. Inany event, we think the officers charged with the duty of making upthejury wheel cards should not add the names ofqualified women jurors to the wheel before the regular time’unless it is done under a.court order. Ifacourt should hold that the present wheels are vitiated by failure to include names of eligible women, then we think itwould be proper to add their names upon order ofthe 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 thewheels.
Our opinion onthis question is given more for the benefit and guidance ofthe officers in charge ofthejury wheel than to attempt to decide what effect the failure to include women will have onthe 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. InGlasser v0State, 315 U.S. 60 (1942). an act ofthe Illinois legislature maklngigible for jury service became effective on July 1, 1939. By virtue ofafederal statute (then 28 U.S.C,A. 5411, now 28 U.S.C.A. 5 1861) women became eligible for jury service infederal courts onthat date. But the Illinois law did not require the placing’ ofthe names ofwomen onthe state jury lists until the following September. The United States Supreme Court held that although itwas not necessary, in order for women to serve as federal jurors, that their names appear onthe state lists, itwas not error to omit the names ofwomen from the federal jury lists where itwas not shown that women’s names had yet appeared onthe state lists, inview ofthe short time elapsing between the effective date ofthe Illinois act and the summoning ofthe federal jury used in that case.

Applying the holding inthe Glasser case tothe present situation, it appears that a litigant could not complain ofthe omission of women during the interval between the effective date ofthe amendment and the’next regular time for making upthe 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 itwas not the intent ofthe amendment to halt the administration ofjustice during this interval. Ifthe present statutes provided anunreasonably long interval between fillings of thejury wheel, a litigant might have just cause to object to the omission ofwomen if the Legislature did not cure the defect. But it is our opinion that the interval which will, elapse in this instance is not unreasonably long.

Commonwealth v. Garletts, 81 Pa. Super. 271 (1923), held that ajury selected from ajury wheel from which the names ofwomen..

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 offilling the Supreme Court of Pennsylvania ruled that women were eligible jurors onthe date thewheel was filled, but nevertheless it was held that in these circumstances thewheel as already filled was valid. Inthe present instance, there was no doubt onthe question of qualification ofwomen 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.

Itis oqr opinion that a similar rule will obtain injury commissioner counties. Ifat the time thejury list was drawn itwas 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 thejury lists are drawn. Inthis connection, attention is called to the following quotation from the Garletts case: -

“The president judge and thejury commissioners were in doubt as towhether women were eligible as jurors andfurther, there was an entire absence of suitable accommodations for women jurors. There was nowaitingroom 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, inwhich juries were deliberating. There were no beds in any ofthe rooms and the men slept on cots. The conditions were such that when a jury was required todeliberate for days and nights, the women members thereof could not have any privacy whatever when nature demanded that all the members ofthejury should be permitted to sleep; unless, indeed, they were absolutely separate ina manner which the law did not permit. The evidence fully warranted the finding by the court below, in its opinion overruling the motion to quash, that a reasonable regard for

1 Injustice courts, women will be subject to summons for jury service immediately upon the effective date ofthe 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 towhich jury duty would subject them.

. , .

”

. . D Itwould

. ~. seem tobe reasonable to hold that women ought not to have been required to serve immediately after their enfranchisement, during the period oftime necessary for the preparation of such quarters as*p permit of their serving without undue hardship.

On the matter of separation ofjurors infelony 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 onboth sides, itwould be possible to observe the accepted standards ofpropriety and at the same time tocomply 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 statutes relating to separation, the failure to include women onjury 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 Legislature will make certain changes in the separation and exemption provisions. Until such changes are made, not only the separation statutes but the exemption statutes must be followed. Awoman summoned for jury service will not be entitled to an exemption, as a matter ofright, unless she comes within one ofthe classes presently exempted. Excuse from jury service because ofhardship or other sufficient reason in individual cases will be within the sound discretion of thejudge.
SUMMARY
The constitutional amendment qualifying women for jury service in Texas will become effective on November 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 ofwomen. We are not expressing an opinion on this question, as it is beyond the scope or purpose ofthe present opinion. However, we will note that there seems to be a split ofauthority onthe question in other jurisdictions.Honorable Henry Wade. page 7 (S-146)

Injury 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.

Injury wheel counties, names ofqualified women jurors should not be placed inthe wheel until the next regular time for filling thewheel, which will be inAugust, 1955. Lists drawn from thewheel during the remainder ofthe current period will not be invalid on the ground that women are not included.
APPROVED:

Robert S. Trotti First Assistant Yours very truly,
JOHN BEN SHEPPERD Attorney General

John Ben Shepperd Attorney General BYb Mary Assistant