Untitled Texas Attorney General Opinion ( 1961 )

E ATTORNEYGENEKAL
OF -XAS
AKIST~N II.~XAS
September 7, 1961
Honorable A. W. Walker Opinion No. WW-1132
County Attorney
Dickens County Re: Meaning of the term, "upon
Spur, Texas assumption of jury costs"
as used in Article 463ga,
V.C.S. as amended by H.B.
436, 57th Legislature, and
Dear Mr. Walker: related questions.
By a recent letter, you requested the opinion of
this Department on the meaning of "upon assumption of jury
costs" as used in the subject amendment.
Section 1 of Article 463ga, Vernon's Civil Statutes,
now reads as follows:
"Each petition for divorce shall
set out the name, age, sex and resi-
dence of each child under eighteen (18)
years of age born of the marriage sought
to be dissolved, if any such child or
children there be; and if there be no
such child or children, then the petition
shall so state. No court having juris-
diction of suit for divorce shall hear
and determine any such suit for divorce
unless such information is set out in
such petition or in each cause of action
for divorce. Upon the trial of any such
cause, and in the event a divorce is
granted by the court, if there are such
minor children, it shall be the duty of
such trial court to inquire into the
surroundings and circumstances of each
such child or children, and such court
shall have full power and authority to
inquire into and ascertain the financial
circumstances of the parents of such
child or children, and of their ability
to contribute to the support of same,
and such court shall make such orders
regarding the custody and support of
Honorable A. W. Walker, page 2. (WW-1132)
each such child or children, as is for
ion. The
either parent
to make periodical payments for the bene-
fit of such child or children, until same
have reached the age of eighteen (1.8)years,
said court may enter a judgment in a
y%ed amount for the support of such child
or children, and such court shall have full
power and authority to enforce said judg-
ments by civil contempt proceedings after
ten (10) days notice to such parent of his
or her failure or refusal to carry out the
terms thereof, and for the purpose of ascer-
taining the ability of the parents of such
child or children to contribute to the sup-
port of same, they may be compelled to
testify fully in regard thereto, under
penalty of contempt of court, as in other
cases. Said court shall have power and
authority to alter or change such judgments,
or suspend the same, as the facts and cir-
cumstances and justice may require, upon
notice to such parent as above provided for,
or with his or her consent." (Emphasis added)
The underlined portion was added by said amendment.
Prior to such amendment the law was that a jury
verdict relative to the custody of minor children was mere-
ly advisory to the district court and the court was free
to disregard such verdict. Pateman v. Bateman, 188 S.W.2d
866 (Civ.App. 1945, error dism.); Kesler v. McGuire, 109
S.W.2d 1115 (Civ.App. 1937). The purpose of the amendment
in question was obviously to make the jury's verdict, if
any, relative to the custody of minor children binding upon
the court and not merely advisory.
Honorable A. W. Walker, page 3. (WW-1132)
Rule 216 of Texas Rules of Civil Procedure pro-
vides, in part, that no jury trial shall be had in any civil
suit in the district court unless application be made there-
for and unless a fee of five dollars be deposited by the
applicant with the clerk to the use of the county. Rule 217
of such Rules provides that a jury trial may be had without
the required deposit if the applicant 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 such purpose.
The phrase "upon the assumption of jury costs" as
used in the subject amendment is susceptible to more than
one construction or interpretation. However, for the reasons
hereinafter appearing, it is our opinion that by the phrase
"upon the assumption of jury costs,' as used in the amendment,
the Legislature meant to require one who is a party to a child
custody proceeding and who elects to demand a jury for the
determination of the custody issues to either pay the five
dollar jury deposit as required by said Rule 216, or in lieu
thereof to file the affidavit showing his inability to make
such deposit as provided for in said Rule 217.
One of the most fundamental and most important rules
of statutory construction is that statutes should be construed
so as to carry out the le islative intent. In Wood v. State,
133 Tex. 110, 126 S.W.2d fi 7 (1939), the Supreme Court said:
"It is the settled law that
statutes should be construed so as
to carry out the legislative intent,
and when such intent 7s once ascer-
tained, it should be given effect,
even though the literal meaning of
the wtrds used therein is not followed.
. . .
As previously indicated, the manifest purpose of the
amendment in question was to enable parties to child custody
hearings to have a jury determination of the custody issues
and for the jury verdict to be binding upon the Court. If
the language in question were construed to mean that a jury
will be available to such parties only if such parties pay
all of the expenses involved in the selection and use of a
jury, the legislative intent behind such amendment would not
be given full effect, but on the contrary such intent would
be greatly impeded. The county's expense involved in select-
ing and using a jury in the trial of a cause far exceeds the
five dollar fee required by said Rule 216. The obvious ef-
fect of shifting such expenses from the county directly to
Honorable A. W. Walker, page 4. (WW-1132)
the litigants demanding jury trials in child custody proceed-
ings would be to virtually eliminate jury trials in child
custody proceedings, or at least to greatly reduce the number
of such trials from the number there would be if such liti-
gants had the same financial responsibilities as other district
court litigants demanding jury trials in non-child custody pro-
ceedings. The legislative intent and purpose behind the
subject amendment is effectuated by construing the language in
question as requiring child custody litigants to meet the same
financial pre-requisites for a jury trial as required of all
other district court litigants demanding a jury trial, whereas
to require more financially of child custody litigants would
be to impede such intent and purpose. In our view, the Legis-
lature inserted "upon assumption of jury costs" in the
amendment for the purpose of showing that child custody liti-
gants demanding a jury were not exempt from the provisions of
said Rules 216 and 217, and not for the purpose of creating a
financial distinction between child custody litigants demand-
ing a jury trial and all other district court litigants demand-
ing a jury trial.
Another fundamental rule of statutorv construction
is that a statute must be reasonably construe&.
Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d
State ex rel. Wilke v. Stein, 36 S.W.2d 698 (Com.App. 1931
In following the rule of reasonableness, it is our opinion
that by the-use of the words 'jury costs'Ithe Legislature
had reference to the expenses of a jury trial in the district
court which, at the time of passage of said amendment, was
the direct responsibility of jury demanding litigants in the
district court, namely the said five dollar jury deposit or
the affidavit of inability in lieu thereof. We believe that
it would be unreasonable to construe such scant language as
"jury costs" as meaning the actual cost of selecting and using
a jury in the triai of a cause in the district court. If the
Legislature had intended to institute such a radical change,
we feel that much more compelling language would have been
used to express such intent.
There is another reason for adopting the interpre-
tation hereinbefore indicated. Such reason is the statutory
construction rule that a statute should never be given a con-
struction chat leads to uncertainty, injustice or confusion
if it is possible to construe it otherwise. Wood v. State,
133 Tex. 110, 126 S.W.2d 4 (1939); Trimmier v. Carlton, 116
Tex. 572. 296 S.W. 1070 (1927). An interoretation of "assump-
tion of jury costs' as used in the amendment in question to -
the effect that jury demanding child custody litigants are re-
quired to do more than comply with said Rules 216 or 217 leads
to many uncertainties and confusing problems in determining
what expenses and costs such litigants ~must pay. There are a
multitude of services performed by numerous people in selecting
Honorable A. W. Walker, page 5. (WW-1132)
a jury, and there are certain materials and equipment which are
necessary for such selection. It seems more reasonable to con-
clude that "jury costs" means the five dollar deposit required
by Rule 216, than it does to conclude that such items as the
actual amount paid to the jurors, rental on the jury room or
the cost of pencils and paper and other supplies used in select-
ing the jury panel are within ‘jury costs,'(and yet if such term
means the actual expense involved in selecting and using a jury,
all of the aforesaid items as well as various other items sholrld
be included. Certain persons performing services in the selec-
tion of a jury panel are paid by the county for such services.
Whether or not a child custody litigant demanding a jury would
be subject to a claim by the county for reimbursement for such
payments is another uncertainty in attendance with the inter-
pretation that the Legislature meant to require more of child
custody litigants demanding a jury than compliance with either
Rule 216 or 217 of Texas Rules of Civil Procedure.
We agree with the view expressed in your letter that
if the language in question means that child custody litigants
demanding a jury, unlike other jury demanding litigants, are re-
quired to pay the actual expenses involved in selecting and using
a jury in the trial of a case, the constitutionality of the amend-
ment is questionable. However, in view of the foregoing, it is
unnecessary for us to consider such constitutional questions,.
SUMMARY
The term "upon assumption of jury costs" as used
in Section 1 of Article 463pa, Vernon's Civil
Statutes, as amended, means l;hatchild custody
litigants demanding a jury must either pay the
five dollar deposit as required by Rule 216 of
Texas Rules of-Civil Procedure or file the affi-
davit in lieu of such deposits as required by
Rule 217 of such Rules.
Yours very truly;
WILL WILSON
Attornev General of Texas
JBM:mm:zt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Bill Colburn
Pat Bailey
H. Grady Chandler
Doug Mathews
REVIEWED FOR THE ATTORNEY GENERAL BY: Howard W. Mays