OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS JOHN CORNYN

August 28,200l

The Honorable E. Bruce Curry District Attorney 216th Judicial District Bandera, Gillespie, Kendall, Kerr Counties 521 Earl Garrett Street Kerrville, Texas 78028 Opinion No. JC-0405 Re: Whether and when a district clerk must provide jury lists to litigants in civil and criminal trials (RQ-0353-JC)

Dear Mr. Curry:
You have asked this office a series of questions concerning when the district clerk must release jury lists to the parties in both civil and criminal actions. In examining the relevant statutes and the cases interpreting them, we find no controlling legal authority as to when the clerk may provide such information in either civil or non-capital criminal actions beyond the clear limitation that itbe presented to both sides when the parties have announced ready for trial. See TEX.R. CIV. PROC. 224; TEX.CODE CRIM. PROC. ANN.art. 35.01 (Vernon 1989).* We have not been directed to, and our research has not disclosed, “any prohibition tothe District Clerk, inher discretion, providing this list to the parties at any time after the list is prepared.“2 The legislature and the courts, which have not spoken on this matter, have thereby effectively granted the district clerk, a constitutional officer, discretion in it. The ultimate management of either civil or criminal trials, of course, is in the hands of the presiding judge. Discretion granted to apublic officer inthe exercise ofhis orher functions is, of course, not unbounded. You have asked, in that regard, “Ifthe District Clerk provides thejury list to one ofthe litigants, is it mandatory that the District Clerk provide the list to the other litigants at the same time?” Request Letter, supra note 2, at 2. While there appears to be no statutory directive in this regard, the district clerk must not show undue favoritism to any party. See, e.g., Mann v.Ramirez, 905 S.W.2d 275 (Tex. App.-San Antonio 1995, writ denied) (actions ofdistrict clerk in improperly

‘Article 34.04 of the Code of Criminal Procedure provides that “No defendant in a capital case in which the state seeks the death penalty shall be brought to trial until he shall have had atleast two days (including holidays) acopy of the names of the persons summoned as veniremen, for the week for which his case is set for trial.

. . .” TEX.CODE GRIM.PROC.ANN. art. 34.04 (Vernon Supp. 2001).

*Letter from Honorable E. Bruce Curry, District Attorney, 216th Judicial District, toHonorable John Comyn, Texas Attorney General, at 2 (Feb. 21, 2001) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable E. Bruce Curry - Page 2 (JC-0405)

excusing jurors for reasons stemming from personal relationship with corporate representative of party resulted in fundamentally unfair trial). Generally, the organization of petit juries in the district court is governed by chapter 62 of the Government Code. This istrue in both civil and criminal cases, since article 33.09 ofthe Code ofCriminal Procedure provides that “Jury panels, including special venires, for the trial ofcriminal cases shall be selected and summoned (with return on summons) inthe same manner asthe selection ofpanels for the trial of civil cases except as otherwise provided in this Code.” TEX.CODEGRIM. PROC.ANN. art. 33.09 (Vernon 1989). Depending on the county, an appropriate number ofnames to meet jury requirements will be drawn either from thejury wheel by the clerk and the sheriff or constable “in the presence and under the direction ofthe district judge,” TEX.GOV’TCODEANN. 8 62.004(a) (Vernon 1998), or in counties which use a computer pursuant to section 62.011 of the Government Code “by random selection computer programming.” OFFICE OF COURT ADMINISTRATION,

DISTRICT

CLERK PROCEDURE

MANUALII-5 (1998). Aplan for computerized jury selection pursuant to section 62.011 must “designate the district clerk asthe officer in charge ofthe selection process and define his duties.” TEX.GOV’TCODE ANN.862.011 (b)(4) (Vernon 1998); see Tex. Att’y Gen. Op. No. DM-34 (1991). Section 62.012 of the Government Code provides: (a) When ajustice of the peace or acounty or district judge requires ajury for aparticular week, thejudge, within areasonable time before the prospective jurors are summoned, shall notify the county clerk, for acounty court jury, orthe district clerk, for ajustice or district court jury, to open the next consecutively numbered envelope containing ajury listthat isinthe clerk’s possession and has not been opened. Thejudge shall also notify the clerk ofthe date that the prospective jurors are to be summoned to appear forjury service. (b) On receiving the notice from the judge, the clerk shall immediately write on thejury list the date that the prospective jurors are to be summoned to appear and shall deliver thejury list to:

(1) the sheriff, for acounty or district court jury; or (2) the sheriff or constable, for ajustice court jury.
TEX.GOV’T CODEANN.062.012 (Vernon 1998). While the point atwhich thejury list is opened and delivered to the sheriff is the first point atwhich itwould be possible for the clerk to permit access tothis information to any person, section 62.012 does not expressly authorize orrequire such access atthat time. Rule 224 ofthe Texas Rules of Civil Procedure provides that “when the parties have announced ready for trial,” the clerk shallThe Honorable E. Bruce Curry - Page 3 (JC-0405)

write the names ofthe week’s jurors on separate slips ofpaper, place the slips in abox, draw out (in the district court) twenty-four names, write them on two slips ofpaper, and present the slips to each party. TEX.

R. CIV.PROC.

224. Similarly, article 35.01 ofthe Code of Criminal Procedure provides that “When acase is called fortrial and the parties have announced ready for trial, the names ofthose summoned asjurors in the case shall be called.” TEX.CODE CRIM. PROC.

ANN.art. 35.01 (Vernon 1998).3 There is therefore afinal point - when the parties announce ready - atwhich, in both civil and criminal cases, the identities ofpotential jurors must bemade known to the parties. The statutes are, however, silent asto whether this information may beprovided to the parties at any earlier time after the jury list has been opened and delivered to the sheriff. We have discovered no statutory provision which would forbid the clerk, in the exercise ofhis or her discretion, from providing the parties with the list at any such time. We note that the district clerk is a constitutional officer, elected by the voters, TEX.CONST. art. V, 59, and as such is vested with much discretion in the operation of his or her office. As we understand, and as you suggest, parties would prefer to receive as much such information as far in advance of voir dire as possible, in order to aid them in the process ofjury selection. See Request Letter, supra note 2 (Attached Brief at 3). We note that a similar question was posed in Attorney General Opinion C-239 (1964)’ in which this office was asked whether a criminal defendant in amisdemeanor case had aright of access to the list ofprospective jurors for the county court prior to the date oftrial, and ifnot whether the county judge had the discretion to permit the defendant such access. After reciting the statutory predecessor of Government Code section 62.012, and noting that the only express right of access of this sort was that granted to a capital defendant by the statutory predecessor of article 34.04 ofthe Code of Criminal Procedure, the opinion noted that, while there was no absolute right ofsuch access tothe defendant, “the custom in most counties is to make thejury list available to any attorney who requests the same on Friday prior to the trial on Monday. We see no reason to upset this practice.

...” Tex. Att’y Gen. Op. No. C-239 (1964) at 3. Attorney General Opinion C-239 accordingly decided that since “there isnoprovision in [the statutory predecessor to section 62.0121 prohibiting knowledge ofthe array to defendant, we are led to believe itwas not meant by the Legislature toprohibit the practice ofallowing attorneys to obtain alist ofjurors. Policy in this regard should apply equally to prosecution and to defense counsel.” Id. Noting the power of the judge over the management of the case before him, the opinion concludes that “ifthejudge wishes to follow the custom ofmaking thejury panel list available prior to the time ofthe trial, he may do so.” Id. at4. The conclusion ofAttorney General Opinion C-239 remains sound. Therefore, in our view, while the district clerk must provide thejury lists when the

3Your brief also inquires concerning thejury list referenced in article 35.11 ofthe Code ofCriminal Procedure. However, that list, unlike the general jury lists we are considering, is only prepared “on the demand of the defendant or his attorney, or of the State’s counsel” by a shuffle of the general panel. TEX.CODEGRIM.PROC. ANN. art. 35.11 (Vernon Supp. 2001). It is thereupon presented to both sides. Id.The Honorable E. Bruce Curry - Page 4 (JC-0405)

parties announce ready, the decision toprovide the parties such lists in advance ofthat time iswithin the clerk’s discretion, subject to the direction ofthejudge presiding. The clerk must ofcourse show no undue favoritism. See Mann, 905 S.W.2d at 275. While we have discovered no cases dealing with this matter, we arepersuaded that were aclerk to provide jury lists to one party in either acivil orcriminal matter and withhold such lists from the other party, acourt would likely hold such action to be an abuse of the clerk’s discretion.
You have also asked whether the clerk may disclose personal information that has been provided by jurors to the parties in either civil or criminal cases. In our view, two statutes are particularly relevant to your inquiry - section 62.0132 ofthe Government Code, which generally governs the gathering and dissemination ofjury information, and article 35.29 of the Code of Criminal Procedure, which limits the dissemination of such information as it pertains tojurors in particular criminal cases. Section 62.0132 of the Government Code directs the Office of Court Administration to develop and maintain ajury questionnaire accompanying the jury summons. “The questionnaire must require a person to provide biographical and demographic information that is relevant to service as ajury member

. . . .” TEX.GOV’TCODE ANN.8 62.0132(c) (Vernon Supp. 2001). The questionnaire is to be completed and submitted “when the person reports for jury duty.” Id. 9 62,0132(d). The information contained in such questionnaires “is confidential and isnot subject to Chapter 552 [ofthe Government Code, the Public Information Act].” Id. 962.0132(f). Information under section 62.0132 is confidential with respect to third parties rather than litigants. “The information contained in acompleted questionnaire may be disclosed to
...alitigant and alitigant’s attorney in a cause of action in which the respondent to the questionnaire is apotential juror.” Id. 8 62.0132(g)(3). While personal information concerning jurors serving in particular criminal proceedings is confidential pursuant to article 35.29 ofthe Code ofCriminal Procedure, and may not be disclosed by the district clerk absent an order from the trial court, article 35.29 does not preclude the provision of such information concerning the general panel to counsel for the purpose of voir dire. Article 35.29 of the Code of Criminal Procedure provides: Information collected by the court or by a prosecuting attorney during thejury selection process about aperson who serves as a juror, including the juror’s home address, home telephone number, social security number, driver’s license number, and other personal information is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by abona fide member ofthe news media acting in such capacity to the court in which the person is serving or did serve as aThe Honorable E. Bruce Curry - Page 5 (JC-0405)

juror. On a showing of good cause, the court shall permit disclosure ofthe information sought.
TEX.CODECRIM.PROC. ANN.art. 35.29 (Vernon Supp. 2001). Article 35.29 raises two questions: first, whether its provisions are applicable to the parties in the case; and second, whether those provisions apply to the entire venire, orto thejury ultimately impanelled to sit in a particular case. At least one jurist has taken the view that article 35.29 prohibits the release of such information to third parties, rather than to the parties in the litigation. Concurring in thejudgment inHooker v. State, 932 S.W.2d 712,717 (Tex. App.-Beaumont 1996, no writ), Justice Burgess wrote, “I disagree [with the view that article 35.29 prohibits the parties from having access to personal information about jurors]. I read the statute to only prohibit disclosure ofthat information to third parties, except by application and ashowing of good cause.” Id. at 717. However, the weight ofauthority isagainst this view. See id. at716-l 7(majority holding that good cause not shown forunsealing information because defendant’s trial counsel had “acouple of thoughts” regarding trial); see also Mayo v.State, 971 S.W.2d 464,465 (Tex. App.-Fort Worth 1998)’ rev’d on other grounds, 4 S.W.3d 9 (Tex. Crim. App. 1999); Esparza v. State, 31 S.W.3d 338, 340-41 (Tex. App.-San Antonio 2000, no pet.). “Texas Code of Criminal Procedure article 35.29 cloaks jurors’ addresses in confidentiality and prevents disclosure ofthose addresses except upon a showing of good cause. . . . Plainly, article 35.29 is intended to protect jurors by keeping their addresses and other personal information confidential in the absence of atrial court order.” Mayo, 971 S.W.2d at465. We therefore follow the weight of authority and conclude that personal information concerning thejurors in aparticular criminal matter may not be disclosed by the district clerk to the parties absent an order of the trial court. While, aswe note, the case law indicates that personal information ofthose who have saton aparticular criminal jury isconfidential and unavailable even to the parties absent acourt order, the cases are not generally concerned with release to the trial counsel of information on the general panel, but see Mayo, 971S.W.2d at 465 (“If article 35.29 requires an accused to carry aburden of proving good cause before knowing whether venire members aretruly challengeable asnon-citizens, then the accused is saddled with a dilemma.” dicta); and the legislative history of article 35.29 indicates that the statute was not intended to apply to access by counsel to such information during voir dire.
In the public hearing before the Senate Committee on Criminal Justice concerning Senate Bill 12 - now article 35.29 - on March 16, 1993, the author, Senator Brown, described the purpose of the legislation as to prevent convicted criminals from obtaining personal information concerning thejurors in their trials: What this bill will do, itmakes personal information available only to the lawyer in the case and specifically it’s designed so that ifThe Honorable E. Bruce Curry - Page 6 (JC-0405)

a criminal appeals his case after conviction, pro se . . . , then the personal information about the juror is not going to be apart of the record that is sent up for his consideration.

. . . Hearings on Tex. S.B. 12 Before the Senate Comm. on Criminal Justice, 73d Leg., R.S. (Mar. 16, 1993) (statement of Senator Brown) (audio tape available from Senate Staff Services Office).
In reply to certain concerns raised concerning voir dire by Senator Royce West, Mr. Tom Crumpett ofthe District and County Attorneys’ Association specifically indicated that the intent of the legislation was not to prohibit the use of such information by attorneys in voir dire: Our primary intent on this was not to hamstring any of the jury selection process. I think Senator West asked the question. I think it’s fairly typical when you put together juror information cards that information ismade available toboth sides.

... Iwas concerned originally that this bill would prevent us from doing that fact finding as far as both sides finding out as much as we could about the background and qualifications of potential jurors and I think that’s why itwas revised several times so that now it only applies to those folks who finally are picked.

. . . Id. (statement ofMr. Tom Crumpett, District &County Attorneys Ass’n) (audio tape available from Senate Staff Services Office). In response to these assurances, Mr. Chris Elliott of the Texas Criminal Defense Lawyer’s Association said: “Ithink our concerns have basically been addressed with this expression ofintent that [the bill is] not going to affect thejury selection process and the information available.” Id. (statement ofMr. Chris Elliott, Texas Criminal Defense Lawyer’s Ass’n) (audio tape available from Senate Staff Services Office).
A colloquy at second reading on April 1, 1993 between Senator Brown and Senator John Montford is to the same effect:

Senator Montford: I want to be sure in the analysis. I think I agree with what you’re trying to do, but you’re not in any way attempting to restrict the rights of trial counsel to select and make their jury selection? Senator Brown: Absolutely not. Senator Montford: And they have full access to this inforrnation? Sometimes you need toknow where somebody lives inorder to make adetermination for instance on aperemptory challenge.The Honorable E. Bruce Curry - Page 7 (JC-0405)

Senator Brown: And this does not interfere at all with the defense and prosecution seeking and getting that information. It’sjust after the trial, what’s done with that information. Debate on Tex. S.B. 12 on the Floor of the Senate, 73d Leg., R.S. (Apr. 1, 1993) (audio tape available from Senate Staff Services Office).
In the light ofthis legislative history, we conclude that article 35.29 ofthe Code of Criminal Procedure does not apply to information regarding the general panel available to the trial counsel for the purpose of voir dire in a criminal case, and thus does not preclude the provision of such information to counsel for that purpose.The Honorable E. Bruce Curry - Page 8 (JC-0405)

SUMMARY
In both civil and criminal actions, jury lists must be disclosed tothe parties when the parties announce ready fortrial. Subject to the direction of the presiding judge the district clerk may, in his or her discretion, release such information to the parties atany time after the jury list has been delivered to the sheriff to summon thejurors. The clerk must not show undue favoritism, and may not provide the list to one party while withholding it from another. Information contained in jury questionnaires completed pursuant to section 62.0132 ofthe Government Code, while confidential with respect to third parties, is available to the litigants in the cause of action in question. While personal information concerning jurors serving in particular criminal proceedings is confidential pursuant to article 35.29 of the Code of Criminal Procedure, and may not be disclosed by the district clerk absent an order from the trial court, article 35.29 does not preclude the provision of such information concerning the general panel to counsel for the purpose of voir dire.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General -General Counsel SUSAN D. GUSKY Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General, Opinion Committee