CHAPTER THIRTY-FIVE—FORMATION OF THE JURY

Art. 35.01. [602] [673] [655] Jurors called

When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. Those not present may be fined not exceeding fifty dollars. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. A person who is summoned but not present, may upon an appearance, before the jury is qualified, be tried as to his qualifications and impaneled as a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.02. [603] [674] [656] Sworn to answer questions

To those present the court shall cause to be administered this oath: "You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God."

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.03. [604] [675] [657] Excuses

Sec. 1. Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.

Sec. 2. Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court's designee may hear and determine an excuse offered for not serving as a juror, and if the court's designee deems the excuse sufficient, he may postpone the juror's service to a date specified by the court's designee.

Sec. 3. A court or a court's designee may discharge a juror or postpone the juror's service on the basis of the juror's observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1987, 70th Leg., ch. 589, § 2, eff. Aug. 31, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 43, § 2, eff. Oct. 20, 1987.

Art. 35.04. [605] [676] Claiming exemption

Any person summoned as a juror who is exempt by law from jury service may establish his exemption without appearing in person by filing a signed statement of the ground of his exemption with the clerk of the court at any time before the date upon which he is summoned to appear.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1971, 62nd Leg., p. 1560, ch. 421, § 3, eff. May 26, 1971.

Art. 35.05. [606] [677] [658] Excused by consent

One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.06. [607] [678] [659] Challenge to array first heard

The court shall hear and determine a challenge to the array before interrogating those summoned as to their qualifications.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.07. [608] [679-683] Challenge to the array

Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.08. [609] [684] [665] When challenge is sustained

The array of jurors summoned shall be discharged if the challenge be sustained, and the court shall order other jurors to be summoned in their stead, and direct that the officer who summoned those so discharged, and on account of whose misconduct the challenge has been sustained shall not summon any other jurors in the case.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.09. [610] [685] [666] List of new venire

When a challenge to the array has been sustained, the defendant shall be entitled, as in the first instance, to service of a copy of the list of names of those summoned by order of the court.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.10. [611] [686] [667] Court to try qualifications

When no challenge to the array has been made, or if made, has been over-ruled, the court shall proceed to try the qualifications of those present who have been summoned to serve as jurors.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.11. Preparation of list

The trial judge, on the demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Amended by Acts 1991, 72nd Leg., ch. 337, § 1, eff. Sept. 1, 1991.

Art. 35.12. [612] [687] [668] Mode of testing

In testing the qualification of a prospective juror after he has been sworn, he shall be asked by the court, or under its direction:

1. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state?

2. Have you ever been convicted of theft or any felony?

3. Are you under indictment or legal accusation for theft or any felony?

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1969, 61st Leg., p. 1364, ch. 412, § 2, eff. Sept. 1, 1969; Acts 1981, 67th Leg., p. 3143, ch. 827, § 7, eff. Aug. 31, 1981.

Art. 35.13. [613] [688-689] Passing juror for challenge

A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1967, 60th Leg., p. 1739, ch. 659, § 20, eff. Aug. 28, 1967.

Art. 35.14. [614] [690] [671] A peremptory challenge

A peremptory challenge is made to a juror without assigning any reason therefor.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.15. [615, 634, 635] [691, 709, 710] [672, 689, 690] Number of challenges

(a) In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges. Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant; and each defendant shall be entitled to eight peremptory challenges.

(b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law. If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.

(d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1973, 63rd Leg., p. 1127, ch. 426, art. 3, § 4, eff. June 14, 1973; Acts 1983, 68th Leg., p. 4594, ch. 775, § 3, eff. Aug. 29, 1983.

Subsecs. (a), (b) amended by Acts 1991, 72nd Leg., ch. 652, § 5, eff. Sept. 1, 1991.

Art. 35.16. [616] [692] [673] Reasons for challenge for cause

(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:

1. That he is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;

2. That he has been convicted of theft or any felony;

3. That he is under indictment or other legal accusation for theft or any felony;

4. That he is insane;

5. That he has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render him unfit for jury service, or that he is legally blind and the court in its discretion is not satisfied that he is fit for jury service in that particular case;

6. That he is a witness in the case;

7. That he served on the grand jury which found the indictment;

8. That he served on a petit jury in a former trial of the same case;

9. That he has a bias or prejudice in favor of or against the defendant;

10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged;

11. That he cannot read or write.

No juror shall be impaneled when it appears that he is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.

In this subsection "legally blind" shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

(b) A challenge for cause may be made by the State for any of the following reasons:

1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;

2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and

3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

(c) A challenge for cause may be made by the defense for any of the following reasons:

1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and

2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1969, 61st Leg., p. 1364, ch. 412, § 3, eff. Sept. 1, 1969; Acts 1975, 64th Leg., p. 475, ch. 202, § 2, eff. Sept. 1, 1975; Acts 1981, 67th Leg., p. 3143, ch. 827, § 8, eff. Aug. 31, 1981; Acts 1983, 68th Leg., p. 619, ch. 134, § 2, eff. Sept. 1, 1983.

Subsecs. (b), (c) amended by Acts 1991, 72nd Leg., ch. 561, § 10, eff. Aug. 26, 1991; amended by Acts 1995, 74th Leg., ch. 76, § 5.95(27), eff. Sept. 1, 1995.

Art. 35.17. Voir dire examination

1. When the court in its discretion so directs, except as provided in Section 2, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.

2. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1973, 63rd Leg., p. 1127, ch. 426, art. 3, § 5, eff. June 14, 1973.

Subsec. 2 amended by Acts 1991, 72nd Leg., ch. 652, § 6, eff. Sept. 1, 1991.

Art. 35.18. [617] [693] [674] Other evidence on challenge

Upon a challenge for cause, the examination is not confined to the answers of the juror, but other evidence may be heard for or against the challenge.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.19. [619] [695] [676] Absolute disqualification

No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1969, 61st Leg., p. 1364, ch. 412, § 4, eff. Sept. 1, 1969.

Art. 35.20. [620] [696] [677] Names called in order

In selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant. Each juror shall be tried and passed upon separately. A person who has been summoned, but who is not present, may, upon his appearance before the jury is completed, be tried as to his qualifications and impaneled as a juror, unless challenged, but no cause shall be unreasonably delayed on account of such absence.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.21. [621][697][678] Judge to decide qualifications

The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.22. [622] [698] [679] Oath to jury

When the jury has been selected, the following oath shall be administered them by the court or under its direction: "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God".

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.23. Jurors may separate

The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury. The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged. Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Amended by Acts 1989, 71st Leg., ch. 825, § 1, eff. Sept. 1, 1989.

Art. 35.25. [636] [711] [691] Making peremptory challenge

In non-capital cases and in capital cases in which the State's attorney has announced that he will not qualify the jury for, or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.26. [637] [712] [692] Lists returned to clerk

(a) When the parties have made or declined to make their peremptory challenges, they shall deliver their lists to the clerk. Except as provided in Subsection (b) of this section, the clerk shall, if the case be in the district court, call off the first twelve names on the lists that have not been stricken. If the case be in the county court, he shall call off the first six names on the lists that have not been stricken. Those whose names are called shall be the jury.

(b) In a capital case in which the state seeks the death penalty, the court may direct that two alternate jurors be selected and that the first fourteen names not stricken be called off by the clerk. The last two names to be called are the alternate jurors.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1981, 67th Leg., p. 2264, ch. 545, § 1, eff. June 12, 1981.

Subsec. (b) amended by Acts 1991, 72nd Leg., ch. 652, § 7, eff. Sept. 1, 1991.

Art. 35.261. Peremptory challenges based on race prohibited

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

Acts 1987, 70th Leg., ch. 751, § 1, eff. Aug. 31, 1987.

Art. 35.27. [1036] [1138] [1003] Reimbursement of nonresident witnesses

Expenses for Nonresident Witnesses

Sec. 1. (a) Every person subpoenaed by either party or otherwise required or requested in writing by the prosecuting attorney or the court to appear for the purpose of giving testimony in a criminal proceeding who resides outside the state or the county in which the prosecution is pending shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding.

(b) The state may reimburse a witness for transportation only if the transportation is provided by a commercial transportation company or the witness uses the witness's personally owned or leased motor vehicle. In this article, "commercial transportation company" means an entity that offers transportation of people or goods to the public in exchange for compensation.

(c) The state may reimburse a witness for lodging only if the lodging is provided by a commercial lodging establishment. In this article, "commercial lodging establishment" means a motel, hotel, inn, apartment, or similar entity that offers lodging to the public in exchange for compensation.

Amount of Reimbursement for Expenses

Sec. 2. Any person seeking reimbursement as a witness shall make an affidavit setting out the transportation, meal, and lodging expenses necessitated by his travel to and from and attendance at the place he appeared to give testimony, together with the number of days that such travel and attendance made him absent from his place of residence. A reimbursement paid by the state to a witness for transportation, meal, or lodging expenses may not be paid at a rate that exceeds the maximum rates provided by law for state employees.

Direct Payment of Transportation or Lodging Expenses

Sec. 2A. If this article requires the state to reimburse a witness for transportation or lodging expenses, the state may instead directly pay a commercial transportation company or commercial lodging establishment for those expenses.

Other Expenses

Sec. 3. In addition to reimbursement or payment for transportation, meal, and lodging expenses , the comptroller, upon proper application by the attorney for the state, shall reimburse or pay the other expenses required by the laws of this state or the state from which the attendance of the witness is sought.

Application and Approval by Judge

Sec. 4. A reimbursement to a witness as provided by this article shall be paid by the state to the witness or his assignee. Claim shall be made by sworn application to the comptroller, a copy of which shall be filed with the clerk of the court, setting out the facts showing entitlement as provided in this article to the reimbursement, which application shall be presented for approval by the judge who presided over the court or empaneled the grand jury before whom the criminal proceeding was pending. No fee shall be required of any witness for the processing of his claim for reimbursement.

Payment by State

Sec. 5. The Comptroller of Public Accounts, upon receipt of a claim approved by the judge, shall examine it and, if he deems the claim in compliance with and authorized by this Article, draw his warrant on the State Treasury for the amount due the witness, or to any person to which the certificate has been assigned by the witness, but no warrant may issue to any assignee of a witness claim unless the assignment is made under oath and acknowledged before some person authorized to administer oaths, certified to by the officer, and under seal. If the appropriation for paying the account is exhausted, the Comptroller of Public Accounts shall file it away and issue a certificate in the name of the witness entitled to it, stating therein the amount of the claim. Each claim not filed in the office of the Comptroller of Public Accounts within twelve months from the date it became due and payable shall be forever barred.

Advance by State

Sec. 6. Funds required to be tendered to an out-of-state witness pursuant to Article 24.28 of this Code shall be paid by the Comptroller of Public Accounts into the registry of the Court in which the case is to be tried upon certification by the Court such funds are necessary to obtain attendance of said witness. The court shall then cause to be issued checks drawn upon the registry of the Court to secure the attendance of such witness. In the event that such funds are not used pursuant to this Act, the Court shall return the funds to the Comptroller of Public Accounts.

Advance by County

Sec. 7. The county in which a criminal proceeding is pending, upon request of the district attorney or other prosecutor charged with the duty of prosecution in the proceeding, may advance funds from its treasury to any witness who will be entitled to reimbursement under this article. The amount advanced may not exceed the amount that is reasonably necessary to enable the witness to attend as required or requested. However, the amount advanced may include sums in excess of the reimbursement provided for by this article if the excess is required for compliance with Section 4 of Article 24.28 in securing the attendance of a witness from another state under the Uniform Act. A county that advances funds to a witness under this section is entitled to reimbursement by the state as an assignee of the witness .

Advance for Expenses for Witnesses of Indigent Defendant

Sec. 8. Upon application by a defendant shown to be indigent and a showing to the court of reasonable necessity and materiality for the testimony of a witness residing outside the State, the court shall act pursuant to Section 6 hereof to secure advance of funds necessary for the attendance of such witness.

Limitations

Sec. 9. A witness, when attached and conveyed by a sheriff or other officer, is not eligible to receive reimbursement of transportation, meal, or lodging expenses incurred while in the custody of the officer. A court, in its discretion, may limit the number of character witnesses allowed reimbursement under this article to not fewer than two for each defendant and two per defendant for the state.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966. Amended by Acts 1973, 63rd Leg., p. 1287, ch. 477, § 2, eff. Aug. 27, 1973; Acts 1979, 66th Leg., p. 1039, ch. 469, § 1, eff. Sept. 1, 1979.

Secs. 1, 2 amended by and Sec. 2A added by Acts 1993, 73rd Leg., ch. 449, § 18, eff. Sept. 1, 1993; Secs. 3, 4 and 7 amended by Acts 1993, 73rd Leg., ch. 449, § 18, eff. Sept. 1, 1993.

Art. 35.28. When no clerk

In each instance in Article 35.27 in which the clerk of the court is authorized or directed to perform any act, the judge of such court shall perform the same if there is no clerk of the court.

Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966.

Art. 35.29. Personal information about jurors

Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. On a showing of good cause, the court shall permit disclosure of the information sought.