December 18, 1961

Honorable Guilford L. Jones OpinionNO. ~~-1226 DistrictAttorney 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 specialvenire in a capital Dear Mr. Jones: Case.

You have requested the opinion of the AttorneyGeneral by your letter of October 17, 1961, on the following questions:

"1. Question: UnderArticle 612 CCP, is a valid poll tax required to qualify a juror for service on a SpecialVenire on a capital case? "2. Question: UnderArticle 616 CCP is the failure of a venireman tohave a valid poli tax grounds for challenge for cause by counsel for either State or Defense?" Your letter reads in part as follows:

"In Outlawv. 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 defendant to ask a prospective juror in a capital case whether he had a poll tax, and that it was not error to seat jurymenwho had not paid their poll tax in a capital case. "It could be argued that sinceArticle 579 is codified under 'TheMode of Trial' and sinceArticle 612 and 616 are codified under 'TheFormation of the Jury in Capital Cases,' that Article 579 applies in non-capital cases and thatArticles 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 likewisebe argued that,disregarding the classificationof the statutes in the 19257

. .

Honorable Guilford L. Jones,page 2 

### Ww-1226)

Code, thatArticle 

### 579eliminates thenecessity of a poll tax as a qualification,but leaves unaffected the provision of Article 616 which, strictly interpreted 6. would make the failure to have a poll tax a su Ject of challenge.

. . ." Article 

### 579 (V.C.C.P.,1925), reads as follows: "Failure to pay poll tax shallnot disqualify any person from jury service."
It is true that in Outlawv. State, 69 S.W.2d 120 (Tex.Crim.

### 19341,the Court stated at pages 123 and 124:

"Billof exception No. 

### 3 recites that appellant, in examining the first juror on his voir dire, propounded to him the following question: 'Haveyou paidyour poll tax for the year 1932?' The objection of the district attorney that the questionwas immaterialwas sustained,and the court instructed appellant's counselnot to repeat 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 theyhad not paid a poll tax, and appellant's challenge for causehad been overruledand he had exercised peremptory challenges. unless it was shown that Under such circumstances, been forced uponhim, objectionable jurorshad injurywould not be manifested.ll Upon Motion for Rehearing the same propositionwas 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 courtbelow erred in not letting appellant'sattorneys ask each juror whether he had paidhis poll tax. Article 579, C.C.P.. soecificallvprovides that failure to pay poll tax shallnot disaualifv any uerson from iurv service.It u In Kincheloev. State, 

### 175' S.W.2d 

### 593 (Tex.Crim.

### 19431, the defendantwas tried for the capital offense of murder, a special 'venire

was summoned,and the defendantwas convicted,receiving a sentence of confinement in the penitentiaryfor a term of six years. The defendant appealed, and among the points raisedHonorable Guilford ,L.Jones, page 

### 3 (c-1226);

was Bill of Exception

.. -- . No. 6,, which complainedof the trial courtUs allegea errorin failing to sustainhis.challenge for cause against two veniremenwho had not.paid theircurrent poll tax.An examination of Bill of Exception NC. 

### 6, in the JSincheloe

case, in the filed records of the case in the office of the Clerk of the Court of CriminalAppeals, reveals that the appellant complainedbecausewhen he examined the special veniremen Young and Fondit on theirvoir dire, it was brought out that neitherof themhad paid their poll tax for the year 1942. This casewas tried~,.on March 1, 

### 1943. Young and Fondit were challenged on the ground that theywere not qualifiedas voters under the Constitutionand 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 exhaustedall of his 15 peremptory challenges,and asked to be allowed to have an additionalperemptory challenge to use on the veniremanHudson, sincehe had been forced to use peremptory challenges on Young and Fondit. The Court refused to allow the additionalperemptory challenge,and Hudsonwas sworn as a juror. The trial court certified these facetsto be true, and stated that his rulingwith regard to Young and Fondit was based on the Court of CriminalAppeals opinion in Franks v. State, 138 S.W.2d 109, which quotedArticle 

### 579;. C.C.P. The issuewas squarelybefore the Court of Criminal Appeals. Here was a capital case with a specialvenire. It was brought out on voir dire that two of the veniremenhad not paid their poll tax. The appellantwas forced to use his peremptory challenges to avoid their serviceon the jury. Thereafter, he exhaustedall of his 15 peremptory challenges. He asked to be allowed additional peremptory challenges in order to challenge the venireman Hudson. Thiswas refused, and Hudsonwas sworn in as a juror. The Court disposed of Bill of Exception No. 

### 6, in the followingwords, at 

### 175 S.W.2d 

### 596:

"Bill of Exception No. 6 complainingof the action of the court in declining to sustainappellant's challenge to prospective jurorsbecause they had not paid a poll tax iswithoutmerit. Article 579. C.C.P., provides that failure to pay 011 tax shall not disuualifv an ~:E::"EY'ec~:w.~~el~~~~ks(;,p~:PZ,a~?~~?:E:~~~'

The Kincheloe casewas reversedby the Court of Criminal 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 thatArticle 

### 579 C.C.P., governs in every criminal case, regardless of whether ii is a capital felony, non-capital felony, ormisdemeanor. 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 tohave 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.

REF:sh:wb APPROVED: OPINIONCOMMITTED W. V. Geppert, Chairman Yours very truly, WILL WILSON Attorney General of Texas

Bye+ %----*& Riley Eugene Fletcher AssistantAttorney General

John Leonarz Marietta Payne Linward Shivers REVIEWED FOR THEATTORNEY GENERAL BY: Houghton Brownlee, Jr.