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 a number of questions relative to the summoning 

of persons for jury service in the justice of the peace 

court. 

In your first question you ask from what source jurors 

are to be selected. In Cantu v. Samvles, 581 S.W.2d 195 

(Tex. Civ. App. - San Antonio 1979, no writ), it was urged 

that the clerk of the municipal court must draw the names of 

prospective jurors from a jury wheel. In rejecting this 

contention, the court held that the jury wheel law is only 

applicable for the selection of jurors in county and 

district courts in the absence of special le 

4 

islation. 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 the peace 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 the peace 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 to be 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 in Cantu noted that article 33.09 of the 

Code of Criminal Procedure provides that jurors shall be 

selected and summoned in criminal cases in the same manner 

as juror panels are selected in civil cases. 

p. 5514 
I 

Honorable Johnny W. Actkinson - Page 2 (JM-1059) 

of persons ordered by the court.2 Section 62.403 states 

that the officer shall immediately notify the prospective 

juror that he is required 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 of persons ordered by 

the court: that you will summon only 

impartial, sensible, and sober persons who 

are qualified under the law to serve as petit 

jurors; that you will not, directly or 

indirectly, converse or communicate with a 

juror about a case pending for trial; and 

that you will not, by any means, attempt to 

influence, advise, or control a juror in his 

opinion in a case that may be tried by a jury 

on which he serves: so help you God. 

A portion 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: 

A person is disqualified to serve as a 

petit juror unless he: 

(1) is at least 18 years of age: 

(2) is a citizen of this state and of the 

county in which he is to serve as a juror; 

(3) is qualified under the constitution 

and laws to vote in the county in which he is 

to serve as a juror; 

(4) is of sound mind and good moral 

character; 

(5) is able to read and write; 

(6) has not served as a petit juror for 

(Footnote Continued) 

p. 5515 
Honorable Johnny W. Actkinson - Page 3 (JM-1059) 

specified time and place. The officer is directed by 

section 62.403 to orally deliver the summons to the person. 

In your second question you ask whether the officer may 

draw names from the jury wheel for justice court. No 

provision is made for the sheriff or constable to draw names 

from the jury wheel in selecting prospective jurors to be 

summoned for the justice of the peace court. 

The provisions for the use of the jury wheel, found in 

chapter 62, subchapter A, of the Government Code, refer to 

the use of the jury wheel only in connection with county and 

district courts. See Gov't Code 55 62.004 (who draws names 

of prospective jurors for county and district courts 

respectively), 62.005 (observation of drawing by parties in 

jury cases in district 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 of prospective jurors needed each week in 

district and county courts), 62.017 (in certain counties, 

jury panel may be constituted for service in both district 

and county courts), 62.020 (use of alternate jurors in 

district and county courts respectively). 

Section 62.012 provides that a county or district judge 

who requires a jury shall notify the county or district 

clerk to "open the next consecutively numbered envelope 

containing a jury list" (of names 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 62.401 provides simply that a justice of 

the peace needing jurors for his court **shall order the 

sheriff or constable to summon for jury service" the 

necessary number of qualified persons. 

(Footnote Continued) 

six days during the preceding three months in 

the county court or during the preceding six 

months in the district court; 

(7) has not been convicted of a felony: 

and 

(8) is not under indictment or other legal 

accusation of misdemeanor or felony theft or 

any other felony. 

p. 5516 
Honorable Johnny W. Actkinson - Page 4 (JM-1059) 

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 to be selected 

by means of the jury wheel. See also Cantu v. Samvles, 

suvra. 

In your third question you ask whether jurors must 

reside in the justice court precinct for which the court is 

established to qualify as jurors. 

Section 62.102(2) of the Government Code states that a 

person is disqualified to serve as a petit juror unless he 

"is a citizen of this state and of the county in which 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 a person must be a resident of the municipality 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 a resident of the precinct 

to qualify for service in the justice court. 

In your 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'orally in person," by "written notice" and by "telephone 

call to the [prospective] jurors." 

Section 62.403 provides: 

(a) The officer shall immediatelv summon 

the required number of persons 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 the verson. (Emphasis 

added.) 

p. 5517 
Honorable Johnny W. Actkinson - Page 5 (JM-1059) 

The word *'shalll' is an imperative term and requires the 

performance of the act to be 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 by written notice is not authorized. The reguirement that the officer immediately summon persons for juror 

service further supports the conclusion that it be delivered 

orally. 

Oral is defined as "uttered by the mouth or in words: 

spoken, not written." Black's Law Dictionary 987 (5th ed. 

1979). t*DeliverylV is defined as "[tjhe act by which the res 

or substance thereof is placed within the actual or constructive possession or control of another." Id. at 385. 

No reason is perceived why the officer may not orally summon 

jurors in person or by telephone. 

SUMMARY 

The sheriff or constable summons persons 

for jury service in the justice of the peace 

court in accordance with the guidelines set 

forth in the oath administered under section 

62.402 of the Government Code. The officer 

is not authorized to draw names of persons 

from the jury wheel for jury service in the 

justice of the peace court. A juror need not 

reside in the precinct for which the justice 

court was created but must be a resident 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 to use a written 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 

p. 5518 
Honorable Johnny W. Actkinson - Page 6 (JM-1059) 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 5519