Butler v. State

¶1concurring.

¶2Although neither party mentions it in their briefs, I feel compelled, in the interests of justice and completeness, to mention Section 62.110 of the Texas Government Code which also addresses the judicial excuse of a potential juror.1 Section 62.110 is a codification of former civil statute Article 2120, an article which, until its amendment in 1971, was similar to the Code of Criminal Procedure’s Article 35.-03(1). See Tex.Rev.Civ.Stat. art. 2120 (1971) (repealed 1985); cf. Tex.Code Crim. PrOC.Ann. art. 35.03 (Vernon supp. 1990); majority fn. 5 supra.

¶3The language in former Article 2120 has been a part of Texas law as far back as 1876. Although renumbered by successive legislatures, that article read:

The court may hear any reasonable excuse of a juror, and may release him entirely or until some other day of the term.

¶4Acts 1876, p. 171; G.L. vol. 8, p. 1007. In 1971, the Sixty-Second Legislature amended Article 2120 to add to the above the following:

provided, however, the court shall not excuse any juror for economic reasons *133unless all parties of record are present and approve such excuse.

¶5Tex.Rev.Civ.Stat. art. 2120 (Acts 1971, 62nd Leg., p. 2801, ch. 905) (repealed 1985).

¶6This Court, in White v. State, reviewed, in light of former Article 2120, the excusáis given to five prospective veniremembers. 591 S.W.2d 851 (Tex.Crim.App.1980). There, the judge had granted excuses for a number of job-related reasons, to-wit: a hospital chief-of-staff’s need to attend an accreditation conference, the planned vacations of two veniremembers, the need of a construction superintendent to be on-site during a critical stage, and the need of a worker to remain at work where his absence would reduce the staff to one-half. Id. at 857. There, we stated that:

[wjhile the excuses offered by the five prospective jurors were job-related, there is no showing that jury service for any of these individuals would have resulted in the loss of job, loss of compensation, salaries, wages, etc., the suffering of a financial burden or other economic consequences. We do not conclude that they were excused for economic reasons. No violation of said Article 2120 is shown. Appellant’s ground of error is overruled.

¶7Id.

¶8Because White does not address the relevant jury selection provision of the Code of Criminal Procedure (Article 85.03), its persuasive force is diminished as applied to this case. Nonetheless, even if we proceed on the assumption that the somewhat cursory analysis of White is fully applicable in this case, DeCarlucci’s excuse was not granted for an economic reason. Her anxiety over service on the jury, not her loss of pay or vacation time, was the factor the judge considered in excusing her from service; that is, she was excused because she would not have been able to properly weigh the facts and consider the evidence. Therefore, she was excused because she would have been a bad juror, and White is not dispositive of the instant cause.

¶9In Mays v. State, this Court was confronted with a case in which a trial judge excused several qualified venirepersons for economic reasons. 726 S.W.2d 937, 950 (Tex.Crim.App.1986), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988). Relying on Section 62.110 in stating that a judge should not excuse for economic reasons, we nonetheless held that “[ejrror, if any, was waived[]” when the appellant and the State were present and failed to object to the excusáis. Id. at 950. Seemingly implicit in such a holding was an affirmation of the applicability of Section 62.110 to judicial excusáis in criminal trials. However, as that case indicates, the merits of the ground of error in which Section 62.110 was addressed were never reached. Id.

¶10Despite our earlier decisions implicating the contrary, I am not persuaded of the applicability of that section to the criminal setting. Chapter 62 of the Government Code, a generalized codification of laws, addresses both the qualifications of potential jurors and the procedures acceptable for drawing them from the citizenry-at-large. See Tex.Gov’t Code Ann. ch. 62 (Vernon supp. 1988). As such, the procedures indicated have application to all trials in Texas2, except where a particularized code addresses the same issue and cannot be read to give effect to both provisions. See, e.g. Tex.Code Crim.PROC.Ann. ch. 34 (Vernon supp. 1988). Article 35.03 creates just such a dilemma.

¶11As a reading of Article 34 of the Code of Criminal Procedure indicates, the Legislature has seen fit to create special procedures in the jury selection area of criminal trials. Furthermore, Chapter 35 of the Code involves procedures for jury selection which occur after the venire has been created; i.e., it does not involve the general qualifications to serve, but rather is con*134cerned with the juror qualifications unique to a criminal trial. A comparison of Article 35.03 of the Code of Criminal Procedure and Section 62.110 of the Government Code reveals an overlap in which the two codes contain extremely similar language. Compare Tex.Code Crim.Proc.Ann. art. 35.03 (Vernon supp. 1988) with Tex.Gov’t Code Ann. § 62.110 (Vernon supp. 1988). As can be seen, the major difference between the two centers on the final subsection of each, namely: the disallowance of economic based excusáis under Section 62.110(c), and the noticeable absence of any such prohibition under Article 35.03, § 3.

¶12In fact, Article 35.03, § 3, amended as it was in 1987, refers to Article 29.012(c) which in turn describes the requirements of an affidavit necessary for a religious based excusal. Article 29.012 defines the term “Religious holy day,” and is clearly the counterpart of Section 62.112 of the Government Code; a simultaneous reading of the two enactments reveals virtually identical language. Compare Tex.Code Crim.Proc.Ann. art. 29.012 (Vernon supp. 1988) with Tex.Gov’t Code Ann. § 62.112 (Vernon supp. 1988). Such symmetry is neither accidental nor duplicative; on the contrary, the clear import of this intentional bifurcation by the Legislature can lead to only one conclusion: our procedural treatment of economically based excusáis is required to be different.

¶13In addition, the prohibition against economic excuses was not added to former Article 2120 until its amendment in 1971. Tex.Rev.Civ.Stat. art. 2120 (Acts 1971, 62nd Leg., p. 2801, ch. 905) (repealed 1985). That addition was to the generalized code and it created an irreconcilable conflict with the Code of Criminal Procedure’s analog. Where such a conflict exists, every attempt must be made to construe the two provisions so as to give effect to both. Tex.Gov’t Code Ann. § 311.026(a) (Vernon supp. 1988). But where, as here, the conflict is between a special provision and a general provision, the general provision will only be given effect where it is the latter enactment and it is the legislature’s manifest intent that the general prevail. Tex.Gov’t Code Ann. § 311.026(b) (Vernon supp. 1988). Former Article 2120 does not indicate a manifest intent on the part of the Sixty-Second Legislature to extend the prohibition against economic based excuses to criminal proceedings.3 Further, Article 35.03 was amended in 1987 (as indicated above), but the Legislature chose not to add the prohibition at that time. Given that the Legislature did not act to change the more particularized codification governing a parallel area, it is reasonable to conclude that no such extension was ever intended. Thus, Article 35.03 is (and always has been) the relevant provision and it alone controls the issue at bar.

¶14Having expressed my belief that past caselaw analyzed on the basis of Section 62.110 is in error and that Article 35.03 governs criminal trials, I respectfully concur.