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 

(Emphasis added). 

earing. . . .n 
Hon. Joe Resweber, page 2 (c-633) 

Subsection (3) of Section 13 of Article 2338-l states 

in part: 

Section 21 of Article 2338-l provides, 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 /F338-17 provides 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 applicable 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 comlying 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 represented by counsel, and may demand a jury as In 

other cases. If no jury is demanded, it sharl 

b deemed to have been waived. 

t:e court 

The judge of 

of his 

to try suih case.' 

own motion, may order a jury 

(Emphasis added). 

The same language quoted above can be found In Paragraph 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 i 33: 

"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 nonjury docket, but not less than ten days in advance. The clerk shall promptly enter a notation 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 inability 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 delinquency 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 

as quoted above from Article 2337, giving the 

power following a finding of delinquency. 

the same language 

Court contempt 

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 incurred 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 

to 

in part 

the peace an affidavit that he is too poor 

pay the costs. . . . 

Attorney General's Opinion No. v-1484 (1952), states 

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 

"T 

support orders under Article 

2338-l or Articles 2330-2337 inclusive). 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 assessed against the defendant in contempt proceedings under 

Article 2 

127 and 1 2 

37 or Article 2338-l a8 provided for by Rules 125, 

5, 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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