# THEATTORNEYGENERAL
OF TEXAS

%VJLL WILSON *~ORNEYG*NERAL A~ex-xiu 11, TEXAS

February 

### 23,1961

Honorable Bob Eckhardt, Chairman Criminal JurisprudenceCommittee House of Representatives Austin, Texas

Dear Mr. Eckhardt: OpinionNo. WW-998
Re: Constitutionalityof H. B. 

### 57, amendingArticle 

### 680,Code 

### of Criminal Procedure of Texas, to provide for alternate jurors in felony cases'whena juror becomes unable or disqualified to continue. The Criminal JurisprudenceCommittee of the House of Representatives has requestedan opinion on the constitutionalityof H. B. 

### 57,57th Legislature,which would amendArticle 

### 680of the Code of Criminal Procedure of Texas, 1925, so as to make Article 680, C. C. P. read as follows:

"In felony cases the courtmay direct that one (1) or two (2) jurors in addition to the regular jury be called and impanelledto sit as alternate jurors. Alternate jurors in the order in which they are called shall replace Jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualifiedto perform their duties, and the court shall have the power to discharge such juror or jurorsupon the discoveryof any factwhich in the opinion of the court renders the juror unable or disqualifiedto continue. An alternate jurorwho does not replade a regular juror shall be dischargedwhen the jury retires to consider its verdict. Should a jurorbecome unable or disqualifiedafter the jury retires to consider its verdict, the jury may be discharged. Alternate jurors shallbe drawn in the samemanner, shall have the Same~quaLifications,shallbe subject to the same examination and challenges, shall take the same oath and shall have the same functions,powers, facilitiesand privileges as the regular jurors. Each side is entitled to one (1) peremptory challenge in addition to those otherwise allowed by law if any alternate jurors are to be lmpanelled. 'The additionalperemptory challengemay be used against an alternate Ouror only, and the other peremptory challenges allowed In this Code may not be used against an alternate juror." Section 2 of the bill is a severabilitycaause; Section 

### 3 makes the bill inapplicableto pending litigation; Section 

### 4 repeals conflicting lawsHon. Bob Eckhardt, Page 2 (W-998)

and parts of laws; and Section 

### 5 is the emergency clause.
In Greene v. Robinson, 117 Tex. 

### 516,8 S.W.2d 

### 655, (1928),our Supreme court of Texas statedat page 

### 656:

"The Legislature is a co-ordinatebranch of the government, createdby the people in their Constitution for the especialpurpose of enactingthe laws under which the governmentmust be administered.'The rules and principles to guide a court in determining the constitutionalityof its acts have often been announced and elaboratedupon in the cases.We will not repeat them, or review them further than to say that all reasonabledoubtswill be resolved in favor of the validity of an act, and that, where an act is susceptible of a valid construction,that construction will be given it. We deem it unnecessary to cite cases." Article V, Section 

### 13,Texas Constitution,reads in part as follows:

"Grand and petit juries in the District Courts shall be composed of twelvemen; , a . ."
In Clark v. State, 

### 161Tex. Grim. 

### 278,276S.W.2d 

### 819 (less), the appellant, Clarkwas being tried by a jury of twelve in the district cour~~~w&en the wife of one of the jurorsbecame seriously ill. It was agreed by all parties that the case could continueto final determinationbefore the remaining eleven jurors. The appellantwas convicted. The Court of Criminal Appeals ofTexas stated at page 

### 820:

II

. . .An essential element, then, of the ri~ght of trial by jury, in a felony case, is that the jurymust be composed of twelve jurors.
. . ." "If appellant couldnot waive the constitutional right to be tried by a jury of twelve jurors, then any agreement that he may have made consentingthereto would be ineffective." There are numerous cases cited in the Clark case, supra, which holds that eleven jurorsmay not return a verdict%% felony case.inthe district court. In Bullard ir.State, 

### 38Tex. 

### 504 (1873), the defendantwas tried and convicted of a felony in the District Court by a jury of thirteen jurors.Ths Supreme Court of Texas, in reversing and remandingthe case, relied on Article 

### 3007,Paschal's Digest. This case occurredbefore the adoption of our present Texas Constitution of 

### 1876,but the same rule is incorporated in ArticleV, Section 

### 13,Texas Constitution, supra. A grand jury composed of fourteen grand jurors cannot return a valid indictment. Highsaw v. State, 90 Tex.Hon. Bob Eckhardt, Page 

### 3 (ti%'-998)

Crim. 200, 234 S.W. 220 (1921). The same is true of a grand jury composed of thirteen grand jurors. Ogle v. State, 

### 43Tex. Grim. 219, 63 S.W. 1009 (1901)- Thus we see that in view of Article V, Section 13, Texas Constitution, supra, a jury in the district courtmay not be less than twelve nor more then twelve. This brings us to the question of the effect of alternate jurors, who are selected, sworn and impanelled,but who do not retirewith the jury and deliberate on the verdict, until and unless a regular juror becomes disqualifiedor disabled. Although our present statutesdo not provide for alternate jurors, the Supreme Court of Texas, in the Bullard case, "upra, did state at page 505, with respect to the 13th juror, that:

II

. . if the last juror sworn can be pointed out, he may be dismissed from the panel, and the trial proceed before the legally constituted jury. But ifmore jurors than the legal number are permitted to deliberate on the verdict, the verdict shouldbe set aside and a new trial awarded."
In Davis v. State, 9 Tex. Grim. 634 (1880), one of the jurors~whowas summoned for jury dutywas stricken from the list, but thereafter inadvertentlygot in the jury box and was sworn as a jurorwith the twelve regular jurors. The case had proceeded to the point where both the State and,the Defendant had rested,when itwas discoveredthat thereweEthirteen jurors in the jurybox. The Court dismissed the juror who had been originally stricken from the list, and the remainingtwelve jurors then retired, deliberated,and returnedthe verdict. The appellate, court held that this was not error, since the trial courtwas able to determinewhich of the thirteen jurorswas not properly on the jury.
In view of the holdings in the Bullard case and Davis cake,we do not have any difficultywith the situationwhere one or morealternates are chosen, sworn, and hear the evidence and argument of counsel,but who do not retirewith the regular jurors to deliberate, for the trial court can easily determinewho are the regular jurors. In such case only the twelve regular jurorswould retire to deliberateand return a verdict, The problem of the alternatewho replaces a juror during the course of the trial presents a different .situstion. Does the death, disability, or disqualificationof a regular juror reduce the jury to eleven jurors, so that the reduction of the jury to eleven regular jurors requires a mistrial under the Texas Constitution? Or can an alternate juror *ho was swornat the same time as the regular jurors were sworn,and who has heard all of the evidence and other proceedingsup to this point, take the disabled or disqualifiedregular Juror'splace, and the trial proceed? Since we have never had a statute in Texas providing for alternate jurors, there are no Texas cases to guide us, and we must look to onhbrrjurisdictionsfor guidance.Hon. Bob Eckhardt, Page 4 

### (w-998)

There are a number of jurisdictionswhich provide by statute for alternate jurors. It would serveno purpose to collect at this point the cases from many states upholding the constitutionalityof such alternate juror statutes, since in most of these statestheir respective state constitutions do not read like our Texas Constitutionon this point. Most statesprovide by state constitutionfor trial by jury, and sinceno specificnumber of jurors ismentioned, it has been held that this means the common law number of twelve jurors. These stateshave had no difficulty in finding that a provision for alternate jurorswho do not retirewith the regular jury to deliberate or vote on the verdict when no regular juror is disqualified, but who can and do replace a disabled juror, is constitutional. South Carolina, however, has a provision in its constitutionwhich is very similarto the one found in our Texas Constitution. Artitile V, Section 22 of the South Carolina Constitution, 

### 1895,reads in partwasfollows:

"The petit jury of the Circuit Court shall'6%nsist of twelve men, all of whom must agree to a verdict in order to render the same." [Bmphe~sis added! Subsequently,the South Carolina Legislature enacted its alternate juror;:statute,

Section 

### 626-2,Code of 1942. The Supreme Court of South Carolina apheld the constitutionalityof this statute in the case of State v. McIntire et al, 221 So. Car. 

### 504,71 S.E.2d 410 (1952). The Courtzed the problem at page 

### 415:

"Did the trial judge err in directingthat there. shouldbe an alternate or thirteenth juror? The error assigned,being that in so directing the trial court deprivedappellant of.his-rightsunderArticle V, Section 22 of our Constitution of 

### 1895,which provides that the petit jury of the circuit courts shall consist of twelve men, all of whom must be agreed as to a verdict in order to render the same. "By this exception the appellantattacks as unconstitutionalSection 

### 626~%of the Code of 1942. This section grants to the presiding judge,where a trial is likely to be a protracted one, the right to 'direct the calling of one or two additional jurors in its discretion,to be known as alternate jurors.' The section goes on to provide that any alternate juror as provided in this section shall sitwith the jury panel charged with the case and shall have the same opportunitiesfor seeingand hearing the proceedings,and shall take the same oath as the jurors already sworn. The alternate juror takes no part in the decision of the caseunless a vacancy occurs on the jury panel through death, illness. . .

Hon. Bob Eckhardt, Page 

### 5 (w-998)

or other disability. This section likewiseprotides that if the regular jurors are ordered to be Eept in custodyby the court during the trial of a cause, such alternate juror shall also be kept in confinement with the other jurors,and shallbe discharged upon final submissionof the case to the jury, unless he is called upon to sit on the panel because of the disability of some acting juror." The Court reached the conclusionthat such a statute did not contravenethe South Caroline Constitution,and statedat page 

### 416:

"Statutes of this kind are common in many States of the union, and in our opinion do not in any respect contravene our constitutionalprovision. 

### 31 Am. Jur. Sec. 99, Page 

### 630;50 C.J.S., Juries, Sec. 123-d,page 842; Annotations, 96 A.L.R. 

### 799,109 A.L.R. 1495. Such a statute is remedial and is intended to prevent mistrials in criminal cases of long durationwhere a juror dies or becomes so ill as to be unable to continuehis duties. Similar statutes have been sustained in State v. Dolbow, 117 N.J. Law 560, 189 A. 915, logA.L.R. 1488; People V. Mitchell, 

### 266N.Y. 

### 15,193 N.E. 

### 445,96 A.L.R. 791; People v. Peete, 

### 54Cal. App. 

### 333,202 P. 51; and State v. Dalton, 

### 206N.C. 

### 507,174S.E. 422."
A Federal statuteproviding for alternate jurorswas held notto violate either the S~ixth

Amendment orArticle III, Section 2, Clause 

### 3, of the United States Constitution, in Robinson v. U.S., 144Frm392 (C.C.A. 6th, 1944) (affirmed 324 U.S. 

### 282,rehearing denied 324 U.S. 889, rehearing denied 325 U.S. 895, motion denied 66 S.Ct. 86).
We hold, therefore, that H. B. 57, 57th Legislature,amendingArticle 

### 680,Code of Criminal Procedure of Texas, to provide for alternate jurors in felony cases, is constitutional.

SUMMARY

H. B. 57, 57th Legislature,amendingArticle 680, Code of CriminalProcedure of Texas, to provide for alternate jurors in felony cases, is constitutional.HOG. Bob Eckhdt, Page 

### 6 (w-998)

yours very truly,
WILL WILSON Attorney General of Texas

BY Riley Eugene Fhtcher AssistantAttorney hu2ral

REF:br
APPROVED:
OPINION COMMIXTEX W.V. Geppert, Chairman
W. Ray Scmggs Ray Lof'tin John Reeves Marietta Payne RFXIEWEDFORTHEATTORNEY GENERAL
BY Morgan Nesbitt