**AUST~. TEXAS** 

**.** April 8, 1950

Hon. R. L. Whitehead CriminalDistrict Attorney Longview,Texas

Dear Mrir

Whitehead:
Your request opinionHo. V-1041.
Re: The applioabilltp to Gregg County of Article 21160,V0C.3., ralative to selectionof juries,under the submitted facts.
for au opinion is as follows:
"At presents

we are seleatlng oup juries under Art.2094,Q.C.8. We would like to select our juries under Art. 2116c, V.C.S. Sec. 1 of ~rt~2116c,

V.C.S. says that this Article applies only to such countieswherein two or more Distriot Courts are q alntalned.
"The County of Gregg is composed of the 124th JudicialDistrict Court, and is overlapped~bythe 71st JudicialDistrict Court, both having jurisdictionover civil and criminal matters. This would seem, In this writ* er's opinion, to qualify this county. "Under Sec.10 of Art- 2116c,V.C.S., It states,.that

his act shall be cumulatiyeof and in additionto the methods now authorized by the General Laws for the selectionof a jury panel in the counties named and that this Article is optionalwith and in the dFscretion of a majority of the Distriat and county Judges.
"It is this writer's opLnion that a vote of the Judges favoringthe method instigated in art. 21160, V.C.S., would make that method appllaablcto Gregg County. "Aftermaking diligent search I oan find no cases Pelative to Art. 2116c,V.C.S* andHon. R. L. Whitehead,page 2 (Q-1041)

we respeotfullyrequest that yonr office render an opinion as to whether this oounty might select its jurymenunder Art.21160, Q.C.S." Gregg County has a populationof 58,027 inhabitants accordingto the last precedingFederal Censns.

Artiole 2094, Q.C.S., was first enactedby the Legislaturein 1907 and amendedby the Aots of 1911. It was further amendedby Ii. B. 163, Aots 4lst Leg., R. 9. 1929, oh.43, p.89, to read as follows:

"Artiole2094. Between the first and fifteenthdays of August of each year, in each county having a populationof at least fifty-eightthousand or having therein a city containinga populationof at least twenty thousand, as shown by the preoeding Federal Census, the Tax Colleotor or one of his deputies,togetherwith the Tax Assessor or one of his deputies,togetherwith the Sheriff or one of his deputies, and the County Clerk or one of his deputies, and the Distriot Clerk or one OS his deputies, shall meet at the aourt house of their countg and seleot from the llst of qualified jurors of such county as shown by the tax lists In'theTax Assessor*8office for the current year, the jurors for service in the District and County Courts of such county tar the ensuing year in the manner hereinafter provided.* Article 2116c, Q.C.S., Acts 44th Leg., passed in 1935 (B.B.IIl,

2nd C.S. 1935, oh.&%, p.1744) Is also applioableto oounties in the State wherein two or more Distrlot Courts have been oreated and maintained or in which two or more Distriot Courtsmay hereafterbs oreeted and maintained. The pertinentportion of the Act reads as follows:

"In each county under this law, the Judges of the District and Count Conrt shall meet togetherevery two (2 3 months, or at suoh times as they may agree upon, and determine approximately the number of J-M that are reasonableand necessary for Jury service In all of the District and -.Eon. R. L. Whitehead;page 3 (Q-1041)

qounty courts of

_ _ such ~county,

for each ,week dwlng a perloa of two (2)months, beginning ten (10) days after the date of such meeting, ,OP POP as many weeks in advance as they deem proper. After agreeingupon the number of weeks and upon the number of Jurors neoessary for each of said weeks the presidingJudge shall appoint a Jury Commissionin acoordanae with and under the provisionsof the already existing@enera Laws ~governing the appointment of a Jury Commission,and with the same qualifications

as are therein stated,who shall proaeed to select the number of Jurors for each of the weeks designatedby the presiding Judge, said Jurors to be selectedby said Jury Commissionin the mode and manner, and with the same qualifioations, as is now fixed by existingStatute. The said Jury, so limited in number fop each of said weeks, after having been regularlyselectedby said Jury Commission,shall be served by the Sheriff, OP any other officer authorizedunder the law to serve Jurors, to appear and report for Jury servicebefore the said presiding Judge, so designated,for the week for which it has been selected. Said Jury shall be known as the general panel of Jurors for servioe in all of the District and County Courts of such Connty, for the respeotlve weeks fop whioh they are designatedto. serve. Said JLWOPS, after being summoned shall report for Jury servicebefore the presiding Judge* shall organizesaid panel, hear the exouses of said Jurors and swear them in for service for the week they,havebeen selected, to try all cases that may be submittedto them in any of said Courts." Article 21160, Q.C.S., furtherprovides that such act is cumulativeof and in additionto the methods now authorized

by general laws for the selectionof a jury panel in the aountlesherein named and the adoption of the method provided is, optionalwith and in the discretion of a majority of the District and County Judges

l "Who"probably omitted..

Hon. R. L. Whitehead,page 4 (Q-1041)

of any county coming under the provisionsof the Aot.

Article 2094, Q.C.S., 36, Acts 51st Leg., R.S. 1949, was later amendedby S.B. ch.467,p.868, and reads in part as follows:

"Betweenthe first and fifteenthdays of August of eaoh year, in each county having a populationof at least forty-sixthousand (46,000),or having therein a oity oontaining a populationof at least twenty thousand (20,- 000), as shown by the last precedingFederal Census, and in each county having two or more District Courts holding sessions therein, regardless of population,the Tax Collector or one of his deputies, togetherwith the Sheriff or one of his deputies, and the County Clerk or one of his deputies, and the Dlstriot Clerk or one of his deputies, shall meet at the court house of their county and seleot from the list of qualified jurors of suoh county as shown by the tax lists in the Tax Assessor'soffice for the current year, the jurors for servioe in the District and County Courts of suoh oountg for the ensuing year, in the manner hereinafterprovided.*
The 1949 amendmentto Article 2094, contained the followingemergency clause:

"The fact that there are now some counties in Texas which do not have the populations provided in Article 2094, to require selectionsof jurors from a jury wheel, but have two or more District Courts,holding sessions therein,where, at present, each Dlstriot Judge has to appoint separate jury commissionersto select jurors for his particular court, and such prooeedingresults in confusion and an unfair distributionof jury servvioe,

and often in duplicationain the separate jury lists for swh Courts, create an emergenoy . . .'
In Popham v. Patterson,121 Tex. 615, 51 S.W. 2d 680 (1932),the Court said:

"In construing statutes it is the duty of the court to asoertainthe legislativeHon. R. L. Whitehead,page 5 (Q-1041)

intent and, when swh intent is onoe arrived at, it should ba giveneffeot; in faot, swh intent is the law. In determiningthe legislativeintent, the court should not look alone to any one phrase, olauae, or sentenoe of the Clot,

but to the entire act; and this includesthe caption, the body of the aot, and the emergenogolause. In this oonneotion we hold that, even when the emergenayolause cannot be given effect as such, still its protisionsmay be looked to if they aid the court in asoertaining

the legislativeintent.

. . . “As to the questionwhether the sot of 1931 repeals the act of 1930, we are of the opinionthat it does. In this oonnectionit will ba noted that the sot of 1931 is a later aot, and, in 80 far as prescribingthe terms of offioe is concerned,it ahaolutelf conflictswith the 1930 rot. The former aot fixes the term of office at four years, while the latter act fixes suoh term at two years. The sot of 1931 does not mention that of 1930, but in so far as the term of office is oonoerned, the two aots are absolutelyantagonistlo to each other. It follows that the letter sot repeals the formerby implioation.* Also see: Parshall 8. State, 62 Tex. Grim. 177, 138 S.W. 70 Tex. Grim. 307, 159 z: Terrell, Southwestern

118 Gas Tex. and 463, Eleo- 1.6 26 b75 (1946)

; A.G.

Inasmuoh as Artiole2094, as amended in 1949, is mandatory and la a later expresslouof the Legislature than Article 21160 and in view of the inoonslatency between Articles 2096 and 216, "it follovs that the latter Act repeals the former by implioation." This is supportedby the emergewy olause in the 1949 amendment to Artiole 2094, evidencingan intentionof the LegisIature for the method provided to be exclusive in selecting juries in the countiesooming within the p~ovisiorm of the Aot.

Subsequentto the repeal of Artiole 2116~ by the amendmentto Aptiol'e 2094 in 1949, Artiale 2094 was amendedby H. B. 36, Acts 518% Leg., 1st C. S., 1950,Eon. R. L. Whiteheed,page 6 (Q-1041)

effectiveHaroh 3, 1950. This amendment, ?whlchreenacted Article 2094 and added a provisionexcludingcounties, with a populationof less than 24,000:inhabitants and with two District Courts from,theprovisions of the hat, has no effect on the oonclusionareaohedherein.'

Therefore,it is our opinionthat siona of Artiole 2094 will prevail and will method of jury selection in Gregg County. SlEOdARY Artiole 2094, Q.C.S.; and Article Q.C.S., whioh provide a method o-fjury

_ . the,

provigovern the

2116c,selection in Gregg County are ln oo~llot ano antagonistioto each other. Artiole.2094, being a later expressionof the Legislature,~111 prevail over Artiole 2116c, and the method of seleotlonfor juries in said county is by the system oommonly referred to as the "JuryWheel Law." am v. Patterson,121 Tex. 615, 51 S.W.2d (1932);Parshall v. State, 62 Tex. Grin. 177, 138 S.W. 759 (1911);Robertsonv. State, 70 Tex. Grim. 30 713 (l!XY) 'poppeend

v. Terrell, 11

P Ti? k:* 16 S.W.2d' Ob3 (1929).State v. Southwester& Gas and Electric Co&any 145 T 24 193 3 ti2d 675 946); A.G. Opi&on no?+-996, Janu& 26, 1950.

APPROQRD:
J. C. Davis, Jr. County AffairsDivision
CharlesD. Mathews Rxeoutive Assistant
BW:bh:mw Yours very truly,
PRICE DARIRL AttorneyGeneral '

Aaslstant