### THE ATTORNEY GENERAL OF TEXAS

June 15, 1989

Honorable Johnny W.Actkinson Opinion No. JM-1059 District Attorney Bailey County Re: Summoning of jurors for P. 0. Box 286 justice of the peace court Farwell, Texas 79325 (RQ-1698)
Dear Mr. Actkinson:
You ask anumber of questions relative to the summoning ofpersons for jury service in the justice of the peace court.
Inyour first question you ask fromwhat source jurors are tobe selected. In Cantu v. Samvles, 581 S.W.2d 195 (Tex.Civ. App. - SanAntonio 1979, nowrit), itwas urged that the clerk of themunicipal courtmust draw the names of prospective jurors from a jurywheel. In rejecting this contention, the court held that the jurywheel law is only applicable for the selection of jurors in county and district courts inthe absence of special le4islation. The court noted that article 2414, V.T.C.S., (now section 62.403 of the Government Code) "provides for juries in the justice of thepeace court to be summoned orally by the proper officer." Cantu, suvra, at 196. Section 62.401 of the Government Code provides that the justice of thepeace shall order the sheriff or constable to summon the number of qualified persons that the justice considers necessary to serve as jurors. Section 62.402 of the Government Code sets forth the oath tobe administered to the officer by the justice. The oath contains the guidelines to be observed by the officer in summoning the number

1. The court inCantu noted that article 33.09 of the Code of Criminal Procedure provides that jurors shall be selected and summoned incriminal cases inthe same manner as juror panels are selected in civil cases.

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ofpersons ordered by the court.2 Section 62.403 states that the officer shall immediately notify the prospective juror that he isrequired to appear for jury service at the

2. Section 62.402 provides that the justice of the peace shall administer the following oath to the officer:

You do solemnly swear that you will, to the best of your skill and ability, and without bias or favor toward a party in a case, summon the number ofpersons ordered by the court: that you will summon only impartial, sensible, and sober persons who are qualified under the law to serve aspetit jurors; that you will not, directly or indirectly, converse or communicate with a juror about a case pending for trial; and that youwill not, by anymeans, attempt to influence, advise, or control a juror in his opinion ina case thatmay be tried by a jury onwhich he serves: sohelp you God.
Aportion of the oath requires the officer to summon only persons "qualified under the law" to serve as jurors. Section 62.102 of the Government Code sets out the general qualifications for jury service, as follows:

Aperson isdisqualified to serve as a petit juror unless he: (1)isat least 18years of age: (2)isa citizen of this state and of the county inwhich he isto serve as a juror; (3)isqualified under the constitution and laws tovote inthe county inwhich he is to serve as a juror; (4)is of sound mind and good moral character; (5)isable to read andwrite; (6)has not served as a petit juror for (Footnote Continued)

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specified time and place. The officer is directed by section 62.403 to orally deliver the summons to the person.
Inyour second question you askwhether the officer may draw names from the jurywheel for justice court. No provision ismade forthe sheriff or constable todraw names from the jury wheel in selecting prospective jurors to be summoned for the justice of thepeace court. The provisions **for** the use of the jurywheel, found in chapter 62, subchapter A, of the Government Code, refer to the use of the jurywheel only inconnection with county and district courts. See Gov't Code 55 62.004 (whodraws names of prospective jurors for county and district courts respectively), 62.005 (observation ofdrawing byparties in jury cases indistrict or county courts), 62.007 (receipt of envelopes containing jury lists by county or district judge), 62.016 (in certain counties, district judges determine number ofprospective jurors needed each week in district and county courts), 62.017 (incertain counties, jury panel may be constituted for service inboth district and county courts), 62.020 (useof alternate jurors in district and county courts respectively). Section 62.012 provides that a county ordistrict judge who requires a jury shall notify the county or district clerk to "open the next consecutively numbered envelope containing a jury list" (ofnames drawn from the jury wheel). The clerk notifies the sheriff who then summons the jurors for such courts pursuant to section 62.013. In contrast, section 62.401provides simply that a justice of thepeace needing jurors forhis court **shall order the sheriff or constable to summon for jury service" the necessary number of qualified persons.

(Footnote Continued)

six days during thepreceding three months in the county court orduring thepreceding six months inthe district court; (7)has not been convicted of a felony: and(8)is **not** under indictment or other legal accusation ofmisdemeanor or felony theft or any other felony.

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We do not think that the statutory scheme of chapter 62,which makes distinct provisions for obtaining **jurors** for county and district courts, as opposed to justice courts, contemplates that jurors in justice court are tobe selected bymeans of the jurywheel. See also Cantu v. Samvles, suvra.
Inyour third question you askwhether jurors must reside in the justice court precinct forwhich the court is established to qualify as jurors. Section 62.102(2) of the Government Code states that a person isdisqualified to serve as apetit juror unless he "isa citizen of this state and of the county inwhich he is to serve as a juror." The oath the justice of the peace administers to the officer under section 62.402 requires that the officer summon persons "who are qualified under the law." While section 62.501 of the Government Code requires that aperson must be a resident of themunicipality for which the court is established to serve on a jury in municipal court, section 62.402 only directs the officer to summon persons "qualified under the law" to serve as jurors in justice court. We construe "qualified under the law" to mean a person who meets the qualifications set forth in section 62.102. "Qualified under the law" requires that the person be a resident in the county. We are unable to find any requirement that a juror be aresident of the precinct to qualify for service inthe justice court.
Inyour last series of questions you ask about the methods an officer may utilize in summoning persons for jury service in the justice court. Specifically, YOU inquire about the validity of notifying the prospective juror l'orallyinperson," by "written notice" and by "telephone call to the [prospective] jurors." Section 62.403 provides:

(a)The officer shall immediatelv summon the required number ofpersons to appear for jury service as ordered by the justice of the peace. (b)The summons must notify the person that he is required to appear for jury service before the justice at the specified time and place. The officer shall orally deliver the summons to theverson. (Emphasis added.)

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Theword *'shalll' isan imperative term and requires the performance of the act tobe performed unless it is apparent that the legislature intended otherwise. Halios v. Texas Dev't of Public Safetv, 733 S.W.2d 308 (Tex.App. -Amarillo 1987,writ ref'd). Section 62.403 provides the officer "shall orally deliver the summons to the person." Delivery of summons bywritten notice isnot authorized. The reguirement that the officer immediately summon persons for juror service further supports the conclusion that itbe delivered orally. Oral isdefined as "uttered by themouth or in words: spoken, notwritten." Black's Law Dictionary 987 (5th ed. 1979). t*DeliverylV isdefined as "[tjhe act bywhich the res or substance thereof isplaced within the actual or constructive possession or control of another." Id. at 385. No reason isperceived why the officer may not orally summon jurors inperson orby telephone.
SUMMARY The sheriff or constable summons persons for jury service inthe justice of the peace court inaccordance with the guidelines set forth inthe oath administered under section 62.402 of the Government Code. The officer isnot authorized todraw names of persons from the jurywheel for jury service in the justice of the peace court. A juror need not reside intheprecinct forwhich the justice court was created but must be aresident of the county. The officer may summon prospective jurors for the justice of the peace court orally in person or by calling the individual by telephone. The officer is not authorized touse awritten notice to summon persons for jury service in the justice of the peace court.

JIM MATTOX '~ Attorney General of Texas
MARY KELLER First Assistant Attorney General

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LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

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