Hon. Charles Ii. Bolton 

County Attorney 

Opinion No. 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 procedure provided 

in Article 2117, V.C.S., 

before such jurors 

report into court on the 

date for which they have 

been summoned and 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 

then 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 procedure provided in Article No. 2117, 

V.C.S. before such jurors report into court on 

the datmwhich they ,have been summoned; and, 

does the county judge have the discretion to 

legally grant or refuse defendant's request to 

obtain knowledge of who has been so summoned 

and to make such information available to defendant for the first time when his case has 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 shall notify the 

Clerk of such Court to open the next consecutive unopened list of jurors in his posses- 

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Hon. Charles H. Bolton, page 2 (C-239) 

aion, and shall direct him as to the date for 

which such jurors shall be summoned. Such 

notice shall be given to the Clerk within a 

reasonable time prior to the time when such 

jurors are to be summoned. The Clerk shall 

immediately note 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 immediately notify the 

several persons named therein to be in attendance in Court on the, date so designated by 

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 statutory provision 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, immediately upon receiving the 

list of names of persons summoned under a special 

venire , shall make a certified copy thereof, and 

issue a writ commanding the sheriff to deliver 

such certified copy to the defendant. !Che sheriff 

shall immediately deliver such copy to the defendant, 

and return the writ, lndorsing thereon the manner 

and time of its execution.' 

It is further provided in Article 601, Vernon's Code 

of Criminal Procedure, that no defendant in a capital case 

shall be brought to trial until he has had one days service 

of the copy of the names of persons summoned under a special 

venire, except ~where he 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 offense was not entitled to be furnished with the 

names on the panel from which the jury would be drawn." 

c phasis ours ex.Crim. 91, 17 

S.W. 450 (1891 . The reason for the service of a copy 

of the members of the special venire is to enable the 

defendant better to exercise his challenges and the right 

is regarded as a valuable one that ought not be denied 

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- .- 

Hon. Charles H. Bolton, page 3 (C-239) 

except for causes over which the Court has no control. The 

right is a statutory privilege. 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 shall be 

applied and govern." 

This provision certainly implies that in the absence of 

a statute controlling this situation we should be governed 

by the provisions of the common law. In practical usage, 

however, the custom in most counties is to make the jury list 

available to any attorney who requests the same on Friday 

prior to the trial on Monday. We see no reason to upset 

this practice especially in view of the fact that abuse of 

the privilege can be prevented by appropriate actions 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, of misuse, but in fact Is in'protection of a party accused of an offense, in his right of 

trial by an impartial jury. 

Since it Is provided by statute for service of 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 

it was 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 followed by Texas courts 

promotes efficient operation. 

The method now used in counties throughout Texas is 

operating in most instances very well. The abuse pointed 

out in your letter wherein defendant or his representative 

contacts jurors ahead of time can be overcome by proper 

enforcement rather than withholding the list of jurors from 

the defendant or his attorney. 

The following language was first used in Bird v. U.S., 

187 U.S. 118 (1902) and was restated by Justice Douglas In 

U.S. v. Powers, 307 U.S. 214 (1939): 

"There is a presumption against a construction 

which would render a statute ineffective or inefficient 

or which would cause grave public injuries or even 

inconvenience." 

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Hon. Charles H. Bolton, page 4 (C-239) 

The judge who hears the case is in charge of management 

of same. Therefore, we believe if the judge wishes to 

follow the custom of making the jury panel 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 accordance with 

Article 2117, V.C.S., before their attendance in court 

on the date designated by the judge. We do believe the 

county judge has the discretion to grant defendant's 

request to obtain knowledge of those who have been 

summoned as jurors prior to the time the case has 

been called for trial. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

-SCOTT GARRISON 

Assistant Attorney 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 

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