Honorable Jimmy Morris                    Opinion No. C-305
County Attorney
Navarro County Courthouse                 Re:    Where the trial of a de-
Corelcana, Texas                                 fendant in a criminal case
                                                 results  in a hung jury and
                                                 upon eubeequent trial the
                                                 defendant ira convicted, IS
                                                 the defendant taxed one or
Dear Mr. Morris:                                 two jury fees?
       You have requested,'an official   opinion from this depart-
ment concerning the following    question relating   to the defen-
dant's liability  for a jury fee in a justice     court:
             "If,a jury cannot'agree on a vetiict  and
          ia:hung, and then another jury is lmpaneled
          and the defendant ia convicted,  is the de-
          E;;;tnt  taxed with two jury fees or just

       Article   1075 of the Code of Criminal              Procedure   provides:
          Jury fee       In juatlce    court.
             "If the defendant is convicted in a crimi-
          nal action tried by a jury In a justice   court,
          a jury fee of three dollars   shall be taxed
          zgainst,him."    (Bnphasla wadded)
       Article   I.?73 of    the C&d! of        Criminal   Procedure   provides:
           In district      and county courts.
             'In each.crlmlnal    action tried by a jury
           In thewtrict      dr county court, or county
           court at law, a jury fee of five dollgrs
           ahall be taxed-against     the defendant if he
           is convicted."      (Emphaala added)
         It is fundamental that no coat or fees may be taxed
  against a defendant in a criminal case where he is acquitted.
,'(See attached copy of Attorney Ceneral'e Opinion o-1773.)


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Honorable    Jimmy Morris,     page 2 (C-305)


       The statutes provide       that In the justice, district         and
county courts the taxation        of a defendant for a jury fee         la
conting&nt upon conviction.
      Aa quoted above, Article   1073 relating   to the dlatrict
and county courts la almost identical    to Article   1075, except
it Is more explicit  In that it apeclflc+ly     states that In
each criminal,action  the defendant is taxed a’ jury fee if con-
med.
      Article     907 of the Code of Criminal         Procedure   provides:
            Mistrial.
              "A jury shall       be discharged if they fall
            to agree      to a verdict after being kept to-
            gether’a     reaeoliable time.     If there be time
            left on     the same day, another jury may be im-
            paneled     to try the cause, or the justice     may
            adjourn     for not.more than two days and again
            lmpanel     a jury to try duch cause. I’
        It is well established   that In a criminal case where’the
jury fails   to agree on a verdict and Is subsequently dlaml8sed,’
a mistrial   is declared.    Howeves, this does not reeult in the
dletilsaal  of the tiase, rather, the pending cause ia continued
until such time as a new jury can be lmpaneled.
        Aa the above quoted statutes are clear and unambiguous,
it follows that only one jury fee ‘la to be’taxed against a de-
fendant,,who   is convicted In a criminal cause tried in the
juatlce’couti,   even though in a ptilor trial the jury was dia-
charged for failare    to agree to a verdict.
                                SVMMARY

               In any criminal cause In a justice        court
            a defendant,    If convicted,    can only be,t?xed
            one jury fee notwithstanding       that more than
            one .jury was,. lmpaneled   to” hear the case.
                                    Youra   very   truly;

                                    WAGGONER CARR
                                    Attorney General of Texans
_   .. --




            Honorable   Jimmy Morris,   page 3 (C-305)


            RWN/dt/br
            APPROVED:
            OPINIONCOMMITTEE:
            W. V. Geppert, Chairman
            Jamea Strogk
            Joe Long
            Charles B. Swanner
            Malcolm Quick
            APPROVEDFOR TRE ATTORNEY
                                   GENEXUL
            Bg: Stanton Stone




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