Untitled Texas Attorney General Opinion ( 1961 )

December 18, 1961
Honorable Guilford L. Jones Opinion NO. ``-1226
District Attorney
Rig Spring, Texas Re: Whether under Article 612
V.C.C.P. a valid poll tax
is required to qualify a
juror for service on a
special venire in a capital
Dear Mr. Jones: Case.
You have requested the opinion of the Attorney General
by your letter of October 17, 1961, on the following questions:
"1. Question: Under Article 612 CCP, is a
valid poll tax required to qualify a juror for
service on a Special Venire on a capital case?
"2. Question: Under Article 616 CCP is the
failure of a venireman to have a valid poli tax
grounds for challenge for cause by counsel for ei-
ther State or Defense?"
Your letter reads in part as follows:
"In Outlaw v. State 69 S.W.2d 120 and in
Franks v. State 138 S.W.2d 109, it was held that
it was not error to refuse to permit the defend-
ant to ask a prospective juror in a capital case
whether he had a poll tax, and that it was not
error to seat jurymen who had not paid their poll
tax in a capital case.
"It could be argued that since Article 579 is
codified under 'The Mode of Trial' and since Arti-
cle 612 and 616 are codified under 'The Formation
of the Jury in Capital Cases,' that Article 579
applies in non-capital cases and that Articles 612
and 616 apply in capital cases, and that therefore,
a juror in a non-capital case need not possess a
valid poll tax but that a juror in a capital case
must possess a valid poll tax.
"It can likewise be argued that, disregarding
the classification of the statutes in the 1925
7 . .
Honorable Guilford L. Jones, page 2 Ww-1226)
Code, that Article 579 eliminates the necessity
of a poll tax as a qualification, but leaves un-
affected the provision of Article 616 which,
strictly interpreted would make the failure to
have a poll tax a su6.
Ject of challenge. . . ."
Article 579 (V.C.C.P., 1925), reads as follows:
"Failure to pay poll tax shall not disqualify
any person from jury service."
It is true that in Outlaw v. State, 69 S.W.2d 120
(Tex.Crim. 19341, the Court stated at pages 123 and 124:
"Bill of exception No. 3 recites that appel-
lant, in examining the first juror on his voir
dire, propounded to him the following question:
'Have you paid your poll tax for the year 1932?'
The objection of the district attorney that the
question was immaterial was sustained, and the
court instructed appellant's counsel not to re-
peat the question to other jurors. . . The bill
fails to show that any juror sat upon the trial
who had not paid a poll tax. . . Let us assume
that some of the jurors answered that they had
not paid a poll tax, and appellant's challenge
for cause had been overruled and he had exercised
peremptory challenges. Under such circumstances,
unless it was shown that objectionable jurors had
been forced upon him, injury would not be mani-
fested.ll
Upon Motion for Rehearing the same proposition was
again urged. This time the Court stated a different reason
and said at page 125:
"We see no need for discussing the point
again raised, that the court below erred in not
letting appellant's attorneys ask each juror
whether he had paid his poll tax. Article 579,
C.C.P.. soecificallv provides that failure to pay
poll tax shall not disaualifv any uerson from iurv
u
service.It
In Kincheloe v. State, 175'S.W.2d 593 (Tex.Crim. 19431,
the defendant was tried for the capital offense of murder, a spe-
cial 'venirewas summoned, and the defendant was convicted, re-
ceiving a sentence of confinement in the penitentiary for a term
of six years. The defendant appealed, and among the points raised
Honorable Guilford ,L. Jones, page 3 (c-1226);
was Bill of Exception
. . -- . No. 6,,which complained of the trial
courtUs allegea errorin failing to sustain his.challenge for
cause against two veniremen who had not.paid theircurrent
poll tax.
An examination of Bill of Exception NC. 6, in the
JSincheloecase, in the filed records of the case in the office
of the Clerk of the Court of Criminal Appeals, reveals that
the appellant complained because when he examined the special
veniremen Young and Fondit on their voir dire, it was brought
out that neither of them had paid their poll tax for the year
1942. This case was tried~,.onMarch 1, 1943. Young and Fondit
were challenged on the ground that they were not qualified as
voters under the Constitution and laws of the State. The trial
court overruled the challenges for cause, and the appellant
then used two of his peremptory challenges in order to keep
them off the jury. Thereafter, appellant exhausted all of his
15 peremptory challenges, and asked to be allowed to have an
additional peremptory challenge to use on the venireman Hudson,
since he had been forced to use peremptory challenges on Young
and Fondit. The Court refused to allow the additional peremp-
tory challenge, and Hudson was sworn as a juror. The trial
court certified these facetsto be true, and stated that his rul-
ing with regard to Young and Fondit was based on the Court of
Criminal Appeals opinion in Franks v. State, 138 S.W.2d 109,
which quoted Article 579;.C.C.P.
The issue was squarely before the Court of Criminal
Appeals. Here was a capital case with a special venire. It
was brought out on voir dire that two of the veniremen had not
paid their poll tax. The appellant was forced to use his per-
emptory challenges to avoid their service on the jury. There-
after, he exhausted all of his 15 peremptory challenges. He
asked to be allowed additional peremptory challenges in order
to challenge the venireman Hudson. This was refused, and Hud-
son was sworn in as a juror. The Court disposed of Bill of Ex-
ception No. 6, in the following words, at 175 S.W.2d 596:
"Bill of Exception No. 6 complaining of the
action of the court in declining to sustain appel-
lant's challenge to prospective jurors because
they had not paid a poll tax is without merit.
Article 579. C.C.P., provides that failure to pay
011 tax shall not disuualifv an
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The Kincheloe case was reversed by the Court of Crimi-
nal Appeals, but on other grounds than those raised in Bill of
Exception No. 6.
Honorable Guilford L. Jones, page 4 (W&1226)
The effect of this ruling is that Article 579 C.C.P.,
governs in every criminal case, regardless of whether ii is a
capital felony, non-capital felony, or misdemeanor. We answer
both your questions in thenegative, and hold that a valid poll
tax receipt is not required to qualify a juror for service, when
summoned as a specialvenireman in a capital case, and failure
to have a valid poll tax receipt is not grounds for challenge
for cause.
SUMMARY
Failure to possess a valid poll tax does not
disqualify a juror in any criminal case.
Failure to possess a valid poll tax does not
render a prospective juror subject to challenge
for cause in any criminal case.
Yours very truly,
WILL WILSON
Attorney General of Texas
Bye+ %----*&
Riley Eugene Fletcher
REF:sh:wb Assistant Attorney General
APPROVED:
OPINION COMMITTED
W. V. Geppert, Chairman
John Leonarz
Marietta Payne
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.