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 statedmatter. Your letter specificallycontains 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 contemptproceedings,where an adult party has been cited for contempt, for failure to pay child support in accordancewith 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 questionswill 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 juveniledependency and neglect cases.

Section 

### 13of Article 2838-1 provides in part as follows: "The Judgemay conduct the hearing in an informalmanner and may adjourn the hearing from time to time.

. .Ifno jury is demanded the judge shallproceed with the h (Emphasisadded). earing.

. . .nHon. Joe Resweber, page 2 

### (c-633)

Subsection 

### (3)of Section 

### 13of Article 2338-l states in part:

Section 21 of Article 

### 2338-lprovides, in part, as follows: "Anappealmay 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 certificateas in other civil cases." (Emphasisadded). In Dendy v. Wilson, 142 Tex. 

### 460,179 S.W.2d 269 (1944), the Court statesat page 274:

"Theact 

### /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 shouldbe governed as far as practicableby the rules relating to civil practice." (Emphasis added). In Steed v. State, 143 Tex. 82, 

### 183S.W.2d 

### 458 (lg44), the Court stated at page 459:

It .the legislaturehas made it abundantly clear Ghit this is a civilmatter, and this court has followed the plain legislative Intent. It follows from this conclusion.

. .thatthe rules of procedure relating to civil actions are applicable to this case." (Emphasisadded). The Court of CriminalAppeals also takes the position that Article 2338-l is a civil statuteand proceedings thereunder,

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Including commitment,are civil and not criminal in nature. Hultin v. State, 171Tex.Crim. 475, 351 S.W.2d 248 (1961).

InRe Gonzales, 328 S.W.2d 475 (Tex.Civ.APP.1965, error ref. n.r.e.), the Court statedat page 477:

"A jury trialmay be had only by comlyingwith Texas Rules of Civil Procedure." Emphasis added). Article 2334, which concernsdependent and neglected child cases, states:

"Anyperson Interested in any case under this titlemay appear therein andmay 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 (Emphasisadded). 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 specificallyholding 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:

"Thehearing from which the above described judgmentand orderwas issuedby the courtwas had on November 13, 1964. Prior to the hearing the father demanded a jury and deposited the customary jury fee." [Emphasisadded). In light of the above quoted authorities, it is our opinion that juvenile casesunder 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 Proceduremust be satisfied, Rule 216 states:

"No jury trial shallbe had in any civil suit,unless applicationbe made therefor and unless a fee of five dollars if in the district court and three dollars if in the county court be depositedby the applicantwith the clerk

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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 shallpromptly enter a notation of the payment of such fee upon the court's docket sheet." Rule 217, states:

"Thedeposit for a jury fee shallnot be required when the party shallwithin the time formaking such deposit, filewith the clerk his affidavit to the effect that he isunable 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 juryunder the above statedrules, 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 compliedwith In cases arisingunder Article 2338-l and Articles 2330-2337 (inclusive).

Question #2 concerns contemptproceedingsunder 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 shallhave full power to enforde'said judgments for supportby civil contemptproceedings.

. . .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 casesunder Article 2338-1 and Articles 2330-2337 (inclusive)are civil cases, then it follows that contemptproceedingsunder these Articlesmust necessarily be civil, and therefore subject to the same rule of costs as in other civil cases. Rule 125, Texas Rules of Civil Procedureprovides:

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### 5 (C-633)

"Eachparty to a suit shallbe liable to the officers of the court for all costs incurred by himself." Rule 127, Texas Rules of Civil Procedure,provides: "Eachparty to a suit shallbe liable for a13 costs incurred by him. If the costs cannotbe collected from the party against whom they have been adjudged, executionmay issue against any party in such suit for the amount oft'

costs incurredby suchparty, but no more. Rule 145,Texas Rules of Civil Procedure,provides in part as follows:

"Aparty 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 OpinionNo. 

### v-1484 (1952), states as follows:

n

. . .Andcosts are assessable in all civil actionsunless an applicable statute expresslyprovides otherwise." (Emphasis added). No statutes expressly exempt assessment of costs in contemptproceedings follow1"T support ordersunder Article 2338-l or Articles 2330-2337 inclusive). Also, It is noted that in contemptproceedings 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 shouldbe assessed in contempt proceedings In accordancewith the above quoted rules of procedure.

Question

### #3 poses the problem of who is liable for jury fees under Articles 

### 2338-land 2330-2337 (inclusive); And the problem of who Is liable for costs in contemptproceedings under Articles 2338-l and 2330-2337 (inclusive).

It is this office's opinion that the party demanding jury trialunder Articles 2334, 2337 or 

### 2338-1must pay fees in



### -3076-Hon. Joe Resweber, page 

### 6 (C -633)

compliancewith Rules 

### 216and 217, Texas Rules of Civil Procedure.

It is our further opinion that costs shouldbe assessed against the defendant in contemptproceedingsunder Article 2 127 and 12

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

5, Texas Rules of Civil Procedure.

SUMMARY A jury fee shouldbe paid in compliancewith Rules 

### 216and 

### 217,Texas Rules of Civil Procedure, for juvenile cases arisingunder Article 2338-l or Articles 2330-2337 (inclusive). Court costs shouldbe collected in contempt proceedingsunder Article 2337 or Section 13-A of Article 2338-l. Such costs shouldbe assessed the defendant in accordancewith 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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