THE STATE OF TEXAS EX REL.

OF HARRIS COUNTY, Relator

THE HONORABLE TED POE, JUDGE 228^TH DISTRICT COURT

OF HARRIS COUNTY, TEXAS, Respondent

As other judges of this Court point out in their opinions, mandamus will not lie if the law is unsettled or uncertain. It is this concept that has led to the statement that mandamus will not lie in a case of first impression. However, some concepts are so settled and certain that, if challenged, the case is one of first impression only because the concept is so settled that no one has thought it reasonable to challenge it. I would argue that the sanctity of the jury room is one of those concepts.

As other judges of this Court point out in their opinions, at least as far back as Alsup v. State, 118 Tex. Crim. 388 39 S.W.2d 902, 903(1931), this Court has held that jury deliberations are required to be kept secret. The statute that produced that holding has not changed significantly in the last seventy years. ⁽¹⁾

The most important word for the purposes of this discussion is "kept." To keep is to maintain in a specified condition over time, in this instance, to maintain secrecy. Webster's Encyclopedic Unabridged Dictionary 781 (1989). When we speak of keeping a secret, it is assumed that the matter will remain secret until the promiser is released by the promisee. The promise may be undone by the promisee giving the promiser permission to speak or by the promisee choosing to reveal the matter. It is not keeping a secret to wait only until the promisee has left the room before revealing the secret.

Our law gives to the jurors, as promisees, the power to reveal matters that are otherwise to be kept secret. After the conclusion of a trial, jurors may speak about their deliberations or choose to keep them secret. If the jurors speak, they may reveal all or only some of the discussions and positions taken and abandoned. That power to choose is meaningless if the choice is made by a judge, camera crew, or production company. To permit someone other than the jurors to choose to reveal all or part of the deliberations is to break a promise made to them by society - that their deliberations would be kept secret. The promise is no less a promise just because the jurors have left the room.

I concur in the judgment of the Court.

Johnson, J.

Filed: February 12, 2003

En Banc

Publish

1. From 1925 until 1965, article 36.22 read:

No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate. No person shall be permitted to converse with the juror about the case on trial.