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29

questions concerning the application the new statute. An excerpt from that September 15, 2015, letter

provides some legislative intent and guidance on selection of the grand jury.

So long as the panel is randomly selected, the court can pick the first sixteen

or not, it can question the entire panel or not, it can select the most qualified

or not. It is within the court’s discretion to determine if those selected are ‘fair

and impartial’ through direct questioning of the potential jurors by the court.

Based on the wording of the statute and the legislative intent, there are basically four ways to pick a grand

jury. The four methods are:

1. The court could pick the first 16 jurors from the qualified panel.

2. The court could “randomly select” 16 jurors from the qualified panel.

3. The court could select the 16 most “qualified” or most representative jurors by using the entire panel.

4. The court could select a grand jury that represents a fair cross section of the county, starting with the

first juror and working up from that juror until the court choses 16 jurors.

There are potential concerns with some of these methods. If the court just selects the first 16 jurors or

“randomly selects” 16 jurors, it runs the risk of having a grand jury that is not a fair cross section of the

community. The 16 selected could end up being all of one race, or all male or all female. While that would be

permissible under the statute, it would not be consistent with the legislative intent of the new law.

If a court uses the other two methods, it is taking steps to ensure that the grand jury is a fair cross

section of the population area served by the court. The court can select a qualified grand jury that takes into

consideration the county’s demographics related to race, ethnicity, sex, and age. This fits with the legislative

intent of the bill and is probably a better way to select a grand jury.

While not required, it is recommended that the courts consider placing on the record the method they

choose to apply in selecting the grand jurors. Further, courts may want to consider keeping statistics on

demographics of the grand juries they select.

t

(Endnotes)

1 Code Crim. Proc. Ann. art. 19.23 (Vernon 2015).

2 Art. 19.08.

3 Art. 19.31.

4 Art. 19.26.