Honorable Henry Wade Opinion No. S- 146 

District Attorney 

Records Building Re: Operative date of the constituDallas, Texas tional amendment qualifying 

women for jury service, and 

Dear Mr. Wade: related questions. 

You have requested an opinion on two questions relating 

to the constitutional amendment which was voted on at the 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 of the 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 in effect? 

2. If self-executing, on what date will tb amendment become effective ? 

Section 19 of Article XVI of the Texas Constitution has 

heretofore provided that “the Legislature shall prescribe by law the 

qualifications of grand and petit jurors.” Other provisions in the Constitution limited jury service to men. This amendment changes Section 19 to 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 

in the 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 of the Constitution upon the date that the official canvass of the returns shows that 

it has been adopted. The effective date does not relate back to the date 

of the election at which it was adopted. nor is the effective date postponed until the date of the Governor’s proclamation declaring its adoption. Wilson v. State, 15 Tex.Ct.App. 150 (1883); Texas Water & Gas 

Co. v. City of Cleburne, 21 S.W. 393 (Tex.Civ.App. 1892); Att’y Gen. Op. 

T)-6L78 11944). The returns are canvassed on the seventeenth day after 
c- ._ 

Honorable Henry Wade, page 2 (S-146) 

the election. Art. 8.38, Vernon”s Texas Election Code, If the canvass 

of this election shows that the amendment carried. it will become a 

part of the Constitution on November 19, 1954. 

We agree with you that the provision qualifying women 

for jury service is self-executing and that it will become operative 

upon its effective date without the necessity of legislative action. In 

,9 Texas 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 of which 

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 of which 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 of the application of this 

rule to the present amendment, and we are taking the liberty of quoting 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 that where the term ‘men’ is used in such 

connection, ‘such term shall include persons of the female 

as well as’of the male sex.’ This amendment reads into 

the present laws the constitutional construction of the term 

‘men’ when used in reference to grand and petit juries. If 

the Legislature were to meet and proceed, as it undoubtedly 

will, to amend Article 2133, R.C.S., and Article 339, C.C.P.. 

by adding the words ‘and women’ to each of them and, perhaps, use a common pronoun instead of only the masculine 

gender as now, it would add little to the construction of the 

statutes as now comprised. 

“It is believed that, while there may be certain accommodating statutes passed by the Legislature concerning 

service on juries by mothers of small children, separation 

of juries in felony cases, and other matters peculiarly affecting women jurors, yet there seems to be nothing essential that needs to be done to put the amendment into immediate effect insofar as the constitutional mandate is concerned. It is self-sufficient, it would seem, and requires 
Honorable ‘Henry Wade, page 3 (S-146) 

no enabling act of the Legislature. It would seem that 

the Constitution has by this enactment given a dual 

meaning to the word ‘men’ in the ‘qualifications’ stat-’ 

utes and that as soon as the 17 dayshave expired and 

the election results canvassed, the right of women.to’. 

serve on juries 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 on the 

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. 

In counties using the jury wheel, it is our opinion that the 

names of women should not be placed in the wheel until the next regular time for filling it. The jury wheel law requires that the names, be 

placed in the wheel between the fir’st and the fifteenth days of August 

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 put cards 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 of a court, so as ,to take in persons whose names 

should have been placed in the wheel at the.regular time,,but under 

present decisions there seemsto be no other circumstance in which 

the officers charged with making up the 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). In these cases, the jury wheels,as originally 

filled were defective because’the names of persons 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 the whe,el when it 

was originally filled in August. 

McNeal v. State held that the wheel should be.,refilled from 

the tax lists for the previous year, which had;been used in August because the new lists were not the.n available, even though the new lists 

had been completed in the meantime. Thus,,qualified persons on the 

new lists whose names did not appear on the old lists were excluded 

frorojury service, but this exclu~sion did ~not:%Gtia~tethe wheel! 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) 

It is seen that a jury 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. 

It is our opinion that the subsequent enlargement of the group of persons qualified for jury service does not necessitate a change in the jury 

wheel before the next regular time for filling it. In any event, we think 

the officers charged with the duty of making up the jury wheel cards 

should not add the names of qualified women jurors to the wheel before 

the regular time’unless it is done under a. court order. If a court should 

hold that the present wheels are vitiated by failure to include names of 

eligible women, then we think it would be proper to add their names 

upon order of the 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 

the wheels. 

Our opinion on this question is given more for the benefit 

and guidance of the officers in charge of the jury wheel than to attempt 

to decide what effect the failure to include women will have on the 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. In Glasser v0 State, 315 U.S. 60 (1942). an 

act of the Illinois legislature maklngigible for jury service became effective on July 1, 1939. By virtue of a federal statute (then 28 

U.S.C,A. 5 411, now 28 U.S.C.A. 5 1861) women became eligible for jury 

service in federal courts on that date. But the Illinois law did not require the placing’ of the names of women on the state jury lists until the 

following September. The United States Supreme Court held that although 

it was not necessary, in order for women to serve as federal jurors, that 

their names appear on the state lists, it was not error to omit the names 

of women from the federal jury lists where it was not shown that women’s 

names had yet appeared on the state lists, in view of the short time elapsing 

between the effective date of the Illinois act and the summoning of the 

federal jury used in that case. 

Applying the holding in the Glasser case to the present situation, it appears that a litigant could not complain of the omission of 

women during the interval between the effective date of the amendment 

and the’next regular time for making up the 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 it was not the intent of the amendment to halt the 

administration of justice during this interval. If the present statutes 

provided an unreasonably long interval between fillings of the jury wheel, 

a litigant might have just cause to object to the omission of women 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 a jury selected from a jury wheel from which the names of women 
. . 

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 of filling the Supreme Court of Pennsylvania ruled that women 

were eligible jurors on the date the wheel was filled, but nevertheless it 

was held that in these circumstances the wheel as already filled was 

valid. In the present instance, there was no doubt on the question of 

qualification of women 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. 

It is oqr opinion that a similar rule will obtain in jury commissioner counties. If at the time the jury list was drawn it was 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 the jury lists are drawn. In this 

connection, attention is called to the following quotation from the Garletts case: 

- 

“The president judge and the jury commissioners 

were in doubt as to whether women were eligible as jurors 

and further, there was an entire absence of suitable accommodations for women jurors. There was no waitingroom 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, in which juries were deliberating. 

There were no beds in any of the rooms and the men 

slept on cots. The conditions were such that when a 

jury was required to deliberate for days and nights, the 

women members thereof could not have any privacy 

whatever when nature demanded that all the members 

of the jury should be permitted to sleep; unless, indeed, they were absolutely separate in a 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 

In justice courts, women will be subject to summons for jury service immediately upon the effective date of the 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 to which jury duty 

would subject them. . , . 

” 

. . D It would . ~ . seem to be reasonable 

to hold that women ought not to have been required 

to serve immediately after their enfranchisement, 

during the period of time necessary for the preparation of such quarters as*p permit of their serving 

without undue hardship. 

On the matter of separation of jurors in felony 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 on both sides, it would be 

possible to observe the accepted standards of propriety and at the same 

time to comply 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 on jury 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. A woman summoned for 

jury service will not be entitled to an exemption, as a matter of right, 

unless she comes within one of the classes presently exempted. Excuse from jury service because of hardship or other sufficient reason 

in individual cases will be within the sound discretion of the judge. 

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 of women. We are not expressing an opinion on this question, as it is beyond the scope or purpose of the present opinion. However, we will note that there seems to be a split of authority on the question in other jurisdictions. 
Honorable Henry Wade. page 7 (S-146) 

In jury 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. 

In jury wheel counties, names of qualified women 

jurors should not be placed in the wheel until the next 

regular time for filling the wheel, which will be in August, 1955. Lists drawn from the wheel during the remainder of the 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 

BY 

Mary b 

Assistant