40.090. Eligibility to serve on courts-martial--members, how determined --unit, defined--ineligible persons.
Eligibility to serve on courts-martial--members, how determined--unit, defined--ineligible persons.
40.090. 1. Any commissioned officer of or on duty with thestate military forces is eligible to serve on all courts-martialfor the trial of any person who may lawfully be brought beforesuch courts for trial.
2. Any warrant officer of or on duty with the state militaryforces is eligible to serve on general and special courts-martialfor the trial of any person, other than a commissioned officer,who may lawfully be brought before such court for trial.
3. (1) Any enlisted member of the state military forces whois not a member of the same unit as the accused is eligible toserve on general and special courts-martial for the trial of anyenlisted member who may lawfully be brought before such courtsfor trial, but he shall serve as a member of court only if beforethe conclusion of a session called by the military judge undersection 40.130 prior to trial or, in the absence of such asession, before the court is assembled for the trial of theaccused, the accused personally has requested in writing thatenlisted members serve on it. After such a request, the accusedmay not be tried by a general or special court-martial themembership of which does not include enlisted members in a numbercomprising at least one-half of the total membership of thecourt, unless eligible members cannot be obtained on account ofphysical conditions or military exigencies. If such memberscannot be obtained, the court may be convened and the trial heldwithout them, but the convening authority shall make a detailedwritten statement, to be appended to the record, stating why theycould not be obtained.
(2) In this section, the word "unit" means any regularlyorganized body of the state military forces not larger than acompany, a squadron, or a corresponding body.
4. (1) No person subject to sections 40.005 to 40.490 maybe tried by a court-martial any member of which is junior to suchperson in rank or grade.
(2) When convening a court-martial, the convening authorityshall detail as members thereof such members as, in his opinion,are best qualified for the duty by reason of age, education,training, experience, length of service, and judicialtemperament. No member is eligible to serve as a member of ageneral or special court-martial when he is the accuser or awitness for the prosecution or has acted as investigating officeror as counsel in the same case.
(L. 1984 H.B. 1035 § 26)