Hon. Charles Ii. Bolton CountyAttorney OpinionNo. C-239 Bosque County Courthouse Meridian, Texas Re: Whether the defendant in a misdemeanor case pending in the county court, or his counsel,have a legal right of access to the names on the list of prospective jurors summoned in accordance to the procedureprovided in Article 2117, V.C.S., before such jurors report into court on the date for which they have been summonedand related Dear Hr. Bolton: question.
You have requested an opinion of this office on Article 2117, Vernon's Civil Statutes,under which Bosque County selects its jurors. Your questions follow:

'Does the defendant in a misdemeanor case thenpending in the county court, or his counsel, have a legal right of access to the names on the list of prospective jurors summoned in accordance to the procedure provided in ArticleNo. 2117, V.C.S. before such jurorsreport into court on the datmwhich they ,havebeen summoned;and, does the county judgehave the discretion to legally grant or refuse defendant'srequest to obtain knowledge of who has been so summoned and to make such informationavailable to defendant for the first time when his casehas been called for trial?" Article 2117,Vernon's Civil Statutes,provides:
"At any time when the Judge of the County or District Court needs a jury for any particular week of such Court,he shallnotify the Clerk of such Court to open the next consecutiveunopened list of jurors in his posses-

-1155-Hon. CharlesH. Bolton, page 2 (C-239)

aion,and shall directhim as to the date for which such jurors shallbe summoned. Such notice shallbe given to the Clerkwithin a reasonable time prior to the time when such jurors are to be summoned. The Clerk shall immediatelynote on the list the date for which the jurors are to be summoned,and deliver said list to the sheriff, Cn receipt of such list, the sheriff shall immediatelynotify the severalpersons named therein to be in attendance in Court on the, date sodesignatedby the Judge."
As you pointed out in your letter of request, this Article does not provide authority to permit defendant or his counsel to have knowledge of those selected,nor is there provision to deny this right, if any he has. Although there is no provision in Article 2117 covering the availability of the jury list to the defendant or his attorney, there is statutoryprovision for supplying a jury list to a defendant in a case requiring a special venire. This provision is found in Article 600,Vernon's Code of Criminal Procedure, and is here quoted:

'The clerk, immediatelyupon receiving the list of names of persons summonedunder a special venire, shallmake a certified copy thereof, and issue a writ commanding the sheriff to deliver such certified copy to the defendant. !Chesheriff shall immediatelydeliver such copy to the defendant, and return the writ, lndorsing thereon themanner and time of its execution.'
It is furtherprovided in Article 601, Vernon's Code of Criminal Procedure, that no defendant in a capital case shallbe brought to trial until he has had one days service of the copy of the names of persons summonedunder a special venire, except~wherehe waives the right or is on bail.
It is stated in 35 Texas Jurisprudence 2d,page 225, Section 158 that "at common law one accused even of a capital offensewas not entitled to be furnishedwith the names on the panel from which the jurywould be drawn." c phasis ours ex.Crim. 91, 17 S.W. 450 (1891

. The reason for the service of a copy of themembers of the specialvenire is to enable the defendantbetter to exercisehis challengesand the right is regarded as a valuable one that oughtnot be denied

-1156-- .-

Hon. CharlesH. Bolton, page 3 (C-239)

except for causes over which the Court has no control. The right is a statutoryprivilege. Article 24, Vernon's Code of Criminal Procedure,provides:

"If this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shallbe applied and govern." This provision certainly implies that in the absence of a statute controlling this situationwe shouldbe governed by the provisions of the common law. In practicalusage, however, the custom inmost counties is tomake the jury list available to any attorneywho requests the same on Friday prior to the trial on Monday. We seeno reason to upset this practice especially in view of the fact that abuse of the privilege can be preventedby appropriateactions against the person misusing the list. The fact that the list is available to the defendant or his attorney does not necessarily constitute a threat, ofmisuse, but in fact Is in'protection of a party accused of an offense, in his right of trialby an impartial jury. Since it Is providedby statute for serviceof the venire on defendants in certain cases, and there is no provision In Article 2117,Vernon's Civil Statutes,prohibiting knowledge of'the array to defendant,we are led to believe itwas not meant by the Legislature to prohibit the practice of allowing attorneys to obtain a list of jurors. Policy in this regard should apply equally to prosecution and to defense counsel. The custom followedby Texas courts promotes efficient operation. Themethod now used in counties throughoutTexas is operating inmost instancesvery well. The abuse pointed out in your letterwherein defendant or his representative contacts jurors ahead of time can be overcomeby proper enforcementrather than withholding the list of jurors from the defendant or his attorney. The following languagewas first used in Bird v. U.S., 187U.S. 118 (1902)and was restatedby Justice Douglas In U.S. v. Powers, 307U.S. 214 (1939):

"There is a presumption against a construction which would render a statute ineffectiveor inefficient or which would cause grave public injuries or even inconvenience."

-1157--. -

Hon. CharlesH. Bolton, page 4 (C-239)

The judgewho hears the case is in charge of management of same. Therefore,we believe if the judgewishes to follow the custom of making the jurypanel list available prior to the time of the trial, he may do so.

SUMMARY
In view of the absence of a statute covering the situation,we do not believe the defendant has an absolute legal right of access to names on the list of prospective jurors summoned in accordancewith Article 2117, V.C.S.,before their attendance in court on the date designatedby the judge. We do believe the county judgehas the discretion to grant defendant's request to obtain knowledge of those who have been summonedas jurorsprior to the time the case has been called for trial.
Yours very truly,

WAGGONER CARR Attorney General of Texas

-SCOTT GARRISON AssistantAttorney General SG:cjp
APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Grady Chandler Bob Flowers Ben Harrison Lloyd Martin
APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

-1158-