Untitled Texas Attorney General Opinion ( 1966 )

Hon. Joe Resweber Opinion No. C- 633
County Attorney
Harris County Re: Whether a jury fee should
Houston, Texas be paid in a juvenile case
before a jury is allowed
any party, and related
Dear Mr. Resweber: questions.
By your letter of February 1, 1966, you have requested
an opinion in regard to the above stated matter. Your letter
specifically contains the following questions:
"1. Should a jury fee be paid in a
juvenile case before a jury is allowed any
party?
"2. Should court costs be collected in
contempt proceedings, where an adult party
has been cited for contempt, for failure to
pay child support in accordance with previous
orders of the Juvenile Court, and found guilty
thereof?
"3. If either of the above questions is
answered in the affirmative, who Is responsible
for these fees and court costs?n
The above questions will be considered in light of
Article 2388-1, Vernon's Civil Statutes, which govern juvenile
delinquency cases, and Articles 2380 to 2337 (inclusive) which
govern juvenile dependency and neglect cases.
Section 13 of Article 2838-1 provides in part as
follows:
"The Judge may conduct the hearing in
an informal manner and may adjourn the hearing
from time to time. . .If no jury is demanded
the judge shall proceed with the h earing. . . .n
(Emphasis added).
Hon. Joe Resweber, page 2 (c-633)
Subsection (3) of Section 13 of Article 2338-l states
in part:
Section 21 of Article 2338-lprovides, in part, as
follows:
"An appeal may be taken by any party
aggrieved to the Court of CIvilAppeals and
the case may be carried to the Supreme Court
by writ of error or upon certificate as in
other civil cases." (Emphasis added).
In Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269
(1944), the Court states at page 274:
"The act /F338-17provides for a jury
trial when a jrry is3emanded, and authorizes
the trial court to order a jury on Its own
motion. Nothing Is said about the payment of
a jury fee. .We think, however, that
the whole act'discloses that the legislature
intended that proceedings instituted thereunder
should be governed as far as practicable by the
rules relating to civil practice." (Emphasis
added).
In Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (lg44),
the Court stated at page 459:
It
.the legislature has made it abundantly
clear Ghit this is a civil matter, and this court
has followed the plain legislative Intent. It
follows from this conclusion. . .that the rules
of procedure relating to civil actions are ap-
plicable to this case." (Emphasis added).
The Court of Criminal Appeals also takes the position
that Article 2338-l is a civil statute and proceedings thereunder,
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Hon. Joe Resweber, page 3 (C-633)
Including commitment, are civil and not criminal in nature.
Hultin v. State, 171 Tex. Crim. 475, 351 S.W.2d 248 (1961).
In Re Gonzales, 328 S.W.2d 475 (Tex.Civ.APP. 1965,
error ref. n.r.e.), the Court stated at page 477:
"A jury trial may be had only by com-
lying with Texas Rules of Civil Procedure."
Emphasis added).
Article 2334, which concerns dependent and neglected
child cases, states:
"Any person Interested in any case under
this title may appear therein and may be repres-
ented by counsel, and may demand a jury as In
other cases. If no jury is demanded, it sharl
b deemed to have been waived. The judge of
t:e court of his own motion, may order a jury
to try suih case.' (Emphasis added).
The same language quoted above can be found In Para-
graph 3 of Article 2337, which concerns a hearing on support
payments, after a finding of neglect and dependency.
There are no cases specifically holding that a party
demanding a jury according to Article 2334 or 2337, must comply
with the Texas Rules of Civil Procedure. However, in Ex Parte
Franklin, 393 S.W.2d 632 Tex.Ci.v.App.1965, no writ historyf,
the Court states at page i33:
"The hearing from which the above described
judgment and order was issued by the court was
had on November 13, 1964. Prior to the hearing
the father demanded a jury and deposited the
customary jury fee." [Emphasis added).
In light of the above quoted authorities, it is our
opinion that juvenile cases under Article 2338-l and Articles
2330-2337 (inclusive) are civil. In order to obtain a jury
trial in a civil case, either Rule 216 or 217, Texas Rules of
Civil Procedure must be satisfied, Rule 216 states:
"No jury trial shall be had in any civil
suit, unless application be made therefor and
unless a fee of five dollars if in the district
court and three dollars if in the county court
be deposited by the applicant with the clerk
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Hon. Joe Resweber, page 4 (C-633)
to the use of the county on or before appearance
day, or if thereafter a reasonable time before
the date set for trial of the cause on the non-
jury docket, but not less than ten days in ad-
vance. The clerk shall promptly enter a nota-
tion of the payment of such fee upon the court's
docket sheet."
Rule 217, states:
"The deposit for a jury fee shall not be
required when the party shall within the time
for making such deposit, file with the clerk
his affidavit to the effect that he is unable
to make such deposit and that he cannot; by
the pledge of property,or otherwise obtain the
money necessary for that purpose; and the
court shall then order t;e clerk to enter the
suit onthe jury docket.
In order to demand a jury under the above stated rules,
a party must either pay the fee or file the affidavit of in-
ability to pay. Therefore, It is our opinion that these rules
must be complied with In cases arising under Article 2338-l and
Articles 2330-2337 (inclusive).
Question #2 concerns contempt proceedings under Article
2337 and Section 13-A of Article 23384, for failure to comply
with support orders entered in both dependency cases and delin-
quency cases. Article 2337 provides, in part, as follows:
.It is further provided. ~. .that
such pas&t or other responsible person shall
pay in the manner directed by the court such
sum as will in whole or in part support such
child. .The court shall have full power
to enforde'said judgments for support by civil
contempt proceedings. . . .n
Section 13-A of Article 2338-1, has the same language
as quoted above from Article 2337, giving the Court contempt
power following a finding of delinquency.
Having concluded above that cases under Article 2338-1
and Articles 2330-2337 (inclusive) are civil cases, then it
follows that contempt proceedings under these Articles must
necessarily be civil, and therefore subject to the same rule
of costs as in other civil cases. Rule 125, Texas Rules of Civil
Procedure provides:
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Hon. Joe Resweber, page 5 (C-633)
"Each party to a suit shall be liable to
the officers of the court for all costs in-
curred by himself."
Rule 127, Texas Rules of Civil Procedure, provides:
"Each party to a suit shall be liable
for a13 costs incurred by him. If the costs
cannot be collected from the party against
whom they have been adjudged, execution may
issue against any party in such suit for the
amount oft'
costs incurred by such party, but
no more.
Rule 145, Texas Rules of Civil Procedure, provides in
part as follows:
"A party who is required to give security
for costs may file with the clerk or justice
of the peace an affidavit that he is too poor
to pay the costs. . . .
Attorney General's Opinion No. v-1484 (1952), states
in part as follows:
n
. . .And costs are assessable in all
civil actions unless an applicable statute
expressly provides otherwise." (Emphasis
added).
No statutes expressly exempt assessment of costs in
contempt proceedings follow1 support orders under Article
2338-l or Articles 2330-2337"Tinclusive). Also, It is noted
that in contempt proceedings for child support following a
divorce action costs are assessed. Livingston v. Nealy, 382
S.W.2d 511 (Tex.Civ.App. 1964, error ref. n.r.e.).marte
Helms, 152 Tex. 480, 259 S.W.2d 184 (1953).
Therefore, it is our opinion that Question #2 must
be answered in the affirmative. Costs should be assessed in
contempt proceedings In accordance with the above quoted rules
of procedure.
Question #3 poses the problem of who is liable for
jury fees under Articles 2338-l and 2330-2337 (inclusive); And
the problem of who Is liable for costs in contempt proceedings
under Articles 2338-l and 2330-2337 (inclusive).
It is this office's opinion that the party demanding
jury trial under Articles 2334, 2337 or 2338-1 must pay fees in
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Hon. Joe Resweber, page 6 (C-633)
compliance with Rules 216 and 217, Texas Rules of Civil Procedure.
It is our further opinion that costs should be as-
sessed against the defendant in contempt proceedings under
Article 2 37 or Article 2338-l a8 provided for by Rules 125,
127 and 125, Texas Rules of Civil Procedure.
SUMMARY
A jury fee should be paid in compliance with
Rules 216 and 217, Texas Rules of Civil Procedure,
for juvenile cases arising under Article 2338-l
or Articles 2330-2337 (inclusive).
Court costs should be collected in contempt
proceedings under Article 2337 or Section 13-A
of Article 2338-l. Such costs should be assessed
the defendant in accordance with Rules 125, 127
and 145, Texas Rules of Civil Procedure.
Very truly yours,
WAGGGNRR CARR
Attorney Qeneral
JCMcC:mkh
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
H. Grady Chandler
Pat Bailey
Milton Richardson
Robert Flowers
APPROVRDFOR THE ATTORNEY GENERAL
BY: T. B. Wright
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