The judge summons a special venire in a death penalty case under CCP 34.01. While that panel has not yet been exhausted, it is apparent that it will be. Anyone know of any prohibition to summoning more jurors under 34.02 before the special venire is exhausted? We want to get the summons out now so that once the current panel is exhausted we can move right into qualifying more, without a significant delay.

There are some ancient cases (1920s ancient) that say that it first must be exhausted, but I don't think they're good law anymore in light of the provisions of 34.02. We've all been researching this till we're blue in the face, but maybe someone has dealt with this before. Thanks!

34.02 says "In any criminal case in which the court deems that thte veniremen theretofore drawn will be insufficient for the trial of the case, or in which the venire has been exhausted" more jurors shall be summoned.

I think the statute requires the court to summon more jurors as soon as he "deems" the panel to be insufficient, regardless of whether that is before or after the panel has been exhausted.

This is borne out by the fact that the prior statute, Vernon's Ann.C.C.P. 1911, art. 667, read "When, from any cause, there is a failure to select a jury from those who have been summoned upon the special venire, the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury."

The 1925 Code likewise read: "On failure from any cause to select a jury from those summoned upon the special venire, the court shall order the sheriff to summon any number of men that it may deem advisable, for the formation of
the jury."

The former statutes (at issue prior to the passage of the current law by Acts 1965, 59th Leg., p. 317, ch. 722, sec. 1, eff. Jan. 1, 1966) required a "failure to select a jury" prior to summoning more veniremembers. The current law allows the court to be proactive if he finds that the venire "will be" insufficient.

[This message was edited by Wes on 08-23-07 at .]