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 either 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 defendant 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 Article 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 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 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 appellant, 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 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 they had 

not paid a poll tax, and appellant's challenge 

for cause had been overruled and he had exercised 

peremptory challenges. 

unless it was shown that 

Under such circumstances, 

been forced upon him, 

objectionable jurors had 

injury would not be manifested.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 special 'venire was summoned, and the defendant was convicted, receiving 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 

JSincheloe case, 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~,.on March 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 peremptory challenge, and Hudson was sworn as a juror. The trial 

court certified these facets to be true, and stated that his ruling 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 peremptory challenges to avoid their service on the jury. Thereafter, 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 Hudson was sworn in as a juror. The Court disposed of Bill of Exception 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 appellant'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 

~:E::"EY'ec~:w.~~el~~~~ks(;,p~:PZ,a~?~~?:E:~~~' 

The Kincheloe case was reversed by 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 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. 

REF:sh:wb 

APPROVED: 

OPINION COMMITTED 

W. V. Geppert, Chairman 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Bye+ %----*& 

Riley Eugene Fletcher 

Assistant Attorney General 

John Leonarz 

Marietta Payne 

Linward Shivers 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.