## E TTOENEEU GENEOFTE~AS

September 19, 1961

Honorable Guilford L. Jones DistrictAttorney County Courthouse Big Spring, Texas OpinionNo. WW-1143
Re: Whether in a jurywheel county,where the court has granted a motion for a special venire in a capital case, and where the venire as drawn from the wheel, is exhausted, additionalveniremen are drawn.from the wheel, or are summonedas talesmen by the sheriff? DearMr. Jones:
part as Your request

follows: for the opinion of this office reads in

"In a jurywheel county,where the courthad granted a motion for a special venire in a capital case, and where the venire as drawn from the wheel, is exhausted,are additionalveniremendrawn from the wheel, or are they summoned as talesmenby the sheriff? "This case seems to be governedby Article 596 C.C.P. It is the opinion of the undersigned that the words 'andupon such refusal' in Article 601-A limits this Statute in its application to those caseswhere the courthas refused a motion for special venire.
"In Coy v. State 2S8 SW2d '782, the courtheld that additionalveniremen shouldhave been drawn from the wheel. In Moon v. State 331 SW2d 312, the court indicatesthat Coy is no longer the law and that 601-Anow requires talesmen to be selected by the sheriff." Article 601-A,V.C.C.P.,was amended in Chapter 327, Acts of the 55th Legislature,R.S., 1957.Honorable Guilford L. Jones, Page 2 

## WV-1143 1

It now reads as follows:
"In all counties of this State where jurors in either civil or criminal cases are drawn from a jurywheel as is now provided or may hereafter be providedby law and where as many as one hundred (100) jurorshave been summoned in such county for regular service for the week in which such capital case is set for trial, the Judge of the Courthaving jurisdictionof a capital case inwhich a motion for a specialvenire has been made, shall grant or refuse suchmotion for a special venire and upon such refusal require the case to be tried by regular jurors summoned for service in such county for regular service for the week in which such capital case is set for trial and such additional talesmen as may be summonedby the Sheriff upon order of the Court as provided in Article 

## 596of the Code of CriminalProcedure,but the Clerk of such Court shall furnish the defendant or his counsel a list of the persons summoned for jury service for such week upon applicationtherefor." The amendatoryAct in 1957 recited in finding that an emergency existed:

"The fact that confusion exists over the propermethod of selecting jurors in capital criminal cases and the need forthislegislation for the speedy administrationof justice create an emergency. D 0" Article 596,V.C.C.P., reads as follows: "On failure from any cause to select a jury from those summonedupon the special venire, the court shall order the sheriff to summon any number of .menthat itmay deem advfsable, for the formation of the jury*" If a specialvenfre is exhausted,the Sheriff is to be sent for talesmen. Art. 

## 596, V.C,C.P. If a special venire is refused, in a county to which Article 601-A,V.C,C,P. applies, the jury shallbe chosen from among the: 11

0 0 0 regular jurors summoned for service inHonorable Guilford L. Jones, Page 3 (WW-1143)

such county for regular service for the week in which such capital case is set for trial 11 a . 0 If these jurors are exhausted,Art. 601-A,V.C.C.P. provides that talesmen shallbe summoned as provided in Art. 

## 596 V.C.C.P. It follows that in a capitaicase in a jury wheel county,when the first panel of jurors is exhausted,whether drawn as a special venire or from regular sources, the procedure to be followed is as set forth in Art. 

## 596, that is, that the sheriff should summon such additional talesmen as are needed to complete the jury. 1960.) Moon v. State, 331 S0W.2d 312 (Tex.Crim.

SUMMARY

JEL/br In a jurywheel county,where the court has

granted a motion for a specialvenire in a capital case, and where the venire as drawn from the wheel, is exhausted, additionalveniremen are tom

be summoned as talesmenby the sheriff.

Sincerelyyours, WILL WILSON FG

John E. Leonarz AssistantAttorney General

APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Riley Eugene Fletcher J. C. Davis Sam Wilson ElmerMcVey REVIEWED FOR THE ATTORNEY GENERAL By: ~HoughtonBrownlee