THEATTORNEYGENERAL 

OF TEXAS 

%VJLL WILSON 

*~ORNEYG*NERAL 

A~ex-xiu 11, TEXAS 

February 23, 1961 

Honorable Bob Eckhardt, Chairman 

Criminal Jurisprudence Committee 

House of Representatives 

Austin, Texas 

Dear Mr. Eckhardt: 

Opinion No. WW-998 

Re: Constitutionality of H. B. 57, 

amending Article 680, Code of 

Criminal Procedure of Texas, 

to provide for alternate jurors 

in felony cases'when a juror 

becomes unable or disqualified 

to continue. 

The Criminal Jurisprudence Committee of the House of Representatives 

has requested an opinion on the constitutionality of H. B. 57, 57th Legislature, which would amend Article 680 of 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 

impanelled to 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 disqualified to perform their 

duties, and the court shall have the power to discharge 

such juror or jurors upon the discovery of any fact which 

in the opinion of the court renders the juror unable or 

disqualified to continue. An alternate juror who does 

not replade a regular juror shall be discharged when the 

jury retires to consider its verdict. Should a juror become unable or disqualified after the jury retires to consider its verdict, the jury may be discharged. Alternate 

jurors shall be drawn in the same manner, shall have the 

Same~quaLifications, shall be subject to the same examination and challenges, shall take the same oath and shall 

have the same functions, powers, facilities and 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 

additional peremptory challenge may 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 severability caause; Section 3 makes the 

bill inapplicable to pending litigation; Section 4 repeals conflicting laws 
Hon. 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 stated at page 656: 

"The Legislature is a co-ordinate branch of the 

government, created by the people in their Constitution for the especial purpose of enacting the laws 

under which the government must be administered.'The 

rules and principles to guide a court in determining 

the constitutionality of its acts have often been announced and elaborated upon in the cases. We will not 

repeat them, or review them further than to say that 

all reasonable doubts will 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 twelve men; , a . ." 

In Clark v. State, 161 Tex. Grim. 278, 276 S.W.2d 819 (less), the appellant, Clark was being tried by a jury of twelve in the district cour~~~w&en 

the wife of one of the jurors became seriously ill. It was agreed by all 

parties that the case could continue to final determination before the remaining eleven jurors. The appellant was convicted. The Court of Criminal 

Appeals of Texas stated at page 820: 

II . . . An essential element, then, of the ri~ght of 

trial by jury, in a felony case, is that the jury must 

be composed of twelve jurors. . . ." 

"If appellant could not waive the constitutional 

right to be tried by a jury of twelve jurors, then any 

agreement that he may have made consenting thereto 

would be ineffective." 

There are numerous cases cited in the Clark case, supra, which holds 

that eleven jurors may not return a verdict%% felony case.in the district 

court. In Bullard ir. State, 38 Tex. 504 (1873), the defendant was tried and 

convicted of a felony in the District Court by a jury of thirteen jurors. Ths 

Supreme Court of Texas, in reversing and remanding the case, relied on Article 

3007, Paschal's Digest. This case occurred before the adoption of our present 

Texas Constitution of 1876, but the same rule is incorporated in Article V, 

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, 43 Tex. 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 court may 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 retire with the jury 

and deliberate on the verdict, until and unless a regular juror becomes disqualified or disabled. Although our present statutes do 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 if more 

jurors than the legal number are permitted to deliberate 

on the verdict, the verdict should be set aside and a 

new trial awarded." 

In Davis v. State, 9 Tex. Grim. 634 (1880), one of the jurors~who was summoned 

for jury duty was stricken from the list, but thereafter inadvertently got in 

the jury box and was sworn as a juror with the twelve regular jurors. The 

case had proceeded to the point where both the State and,the Defendant had 

rested, when it was discovered that there weEthirteen jurors in the jury box. 

The Court dismissed the juror who had been originally stricken from the list, 

and the remaining twelve jurors then retired, deliberated, and returned the 

verdict. The appellate, court held that this was not error, since the trial 

court was able to determine which of the thirteen jurors was not properly on 

the jury. 

In view of the holdings in the Bullard case and Davis cake, we do not 

have any difficulty with the situation where one or morealternates are 

chosen, sworn, and hear the evidence and argument of counsel, but who do 

not retire with the regular jurors to deliberate, for the trial court can 

easily determine who are the regular jurors. In such case only the twelve 

regular jurors would retire to deliberate and return a verdict, The problem 

of the alternate who replaces a juror during the course of the trial presents 

a different .situstion. Does the death, disability, or disqualification of 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 sworn at the same time as the regular jurors 

were sworn, and who has heard all of the evidence and other proceedings up to 

this point, take the disabled or disqualified regular Juror's place, 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 

onhbrrjurisdictions for guidance. 
Hon. Bob Eckhardt, Page 4 (w-998) 

There are a number of jurisdictions which provide by statute for alternate jurors. It would serve no purpose to collect at this point the cases 

from many states upholding the constitutionality of such alternate juror 

statutes, since in most of these states their respective state constitutions 

do not read like our Texas Constitution on this point. Most states provide 

by state constitution for trial by jury, and since no specific number of 

jurors is mentioned, it has been held that this means the common law number 

of twelve jurors. These states have had no difficulty in finding that a 

provision for alternate jurors who do not retire with 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 constitution which is 

very similar to the one found in our Texas Constitution. Artitile V, Section 22 of the South Carolina Constitution, 1895, reads in part was follows: 

"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 constitutionality of 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 directing that there. 

should be an alternate or thirteenth juror? The 

error assigned, being that in so directing the trial 

court deprived appellant of.his-rights under Article 

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 appellant attacks as unconstitutional Section 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 sit with the jury panel charged 

with the case and shall have the same opportunities for 

seeing and 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 case unless 

a vacancy occurs on the jury panel through death, illness 
. . . 

Hon. Bob Eckhardt, Page 5 (w-998) 

or other disability. This section likewise protides 

that if the regular jurors are ordered to be Eept in 

custody by the court during the trial of a cause, 

such alternate juror shall also be kept in confinement with the other jurors, and shall be discharged 

upon final submission of 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 conclusion that such a statute did not contravene the 

South Caroline Constitution, and stated at 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 constitutional provision. 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 duration where a juror dies or becomes so ill 

as to be unable to continue his duties. Similar 

statutes have been sustained in State v. Dolbow, 

117 N.J. Law 560, 189 A. 915, log A.L.R. 1488; 

People V. Mitchell, 266 N.Y. 15, 193 N.E. 445, 96 

A.L.R. 791; People v. Peete, 54 Cal. App. 333, 202 

P. 51; and State v. Dalton, 206 N.C. 507, 174 S.E. 

422." 

A Federal statute providing for alternate jurors was held notto violate 

either the S~ixth Amendment or Article 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, amending Article 

680, Code of Criminal Procedure of Texas, to provide for alternate jurors in 

felony cases, is constitutional. 

SUMMARY 

H. B. 57, 57th Legislature, amending Article 680, 

Code of Criminal Procedure 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 

Assistant Attorney 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