                     October 24, 1971



,lonorableHenry Wade                 Opinion No. H-1076
District Attorney
Dallas ~County,GovernmentCenter      Re: Use of six-person juries
Dallas, :Texas 75202                 in civil cases'in county
                                     courts at law when the amount
                                     in controversy exceeds $l,OOO.OO.
Dear Mr. wade:
    :~Youhave requested our opinion whether civil cases in
county courts~,atlaw may be tried before a jury of six persons
.when the amount.in controversy exceeds $l,OOO.OO.
    .'~
      In Jordan v. Crudgington, 231 S.W.2d 641 (Tex. 19501, the
court,h~elaunconstitu~tionala statute which provided for six-
person juries in a court of domestic relations. The court,
statea that article 1, section 15 of the Texas Constitution,;
which provides tileirightto trial by jury, contemplates a
twelve-person jury, and that in the absence of a constitutional
provision       .
          expressly prescribing the number of jurors
          i.na court.established by the Legislature
         .under the authority of the amendment of $891
          [Tex. Con&. art..5, S 11 . . . the consti-
          tutional~provieian preserving the right of
          trial by jliryrequires that juries in cok!rte
          6f record . . . be composed of twelve men.
Id. at.646. The cotirt,alsonoted that..theonly~constitutional
~oviaione dealing with the number of jurors were article 5,
.&ections13 and 17, whi.chprovide for juries'of twelve in dis-
trict courts"and six in county cou.rts,respectively.
                                         .,
     In,Ex Parte Melton, 279 S.W.2d 362 '(Tex.Grim. App. 1956),
the,court upheld a conviction in the IiidalgoCounty Court at
Law.b&fore a,jury'tifsix persons, stating:
            ,An examination of the Act reveals that no
          jurisdiction has been conferred on the court.
          created which is not exercised by county




                           p. 4407
Honorable Henry Wade           - page 2   (H-1076)


          courts generally under the Constitution and
         ,.lawsof this State.
            From these provisions, we &nclude that the
          Legislature, by the passage of the Hiaalgo
          County act, intended to and aid create a
          county court to be known as the County Court
          at Law, in which trials should be had to a
          jury of:six rather than twelve in accor-
          dance.with the terms of.Article.V, Section 29,
          of the Constitution, and that the Jordan case
          i,snot here controlling.
Id. at 364.
-
      Dallas County Courts at Law have been created'by articles
 1970-l to 1970-31.1, V.T.C.S., "under the authority of the amend-
 ment of 1891" [to article 5, section 1 of the Texas Constitution].
 Jordan v. Crudqinqton, supra at'64.6. Their jurisdiction is not
 coextensive with that of constitutional county courts. V.T.C.S.
hart. 1970a; Regian v. Sowell, ,534 S.W.2d 175 (Tax. Civ. App. --
 Waco 1976, writ ref'd n.r.e.)i: Consequently, the Melton court's
 distinction,of Jordan v. Crudqinqton appears not to-bepplica-
 ble; in our view,the'court's opinion in Jordan would probably be
 held to ,be the controlling,Texas law.                  .'
      We note, however, that the Jordan court's construction of
article 1, section 15 of the Texas Constitution was based on'a
"general agreement" among the authorities on the meaning of the
term Itjury. Since that time several courts,,'including the.,
United States Supreme Court, have found juries .of.less than
twelve persons to be constitutionally permissible. Colqrove v.
Battin, 413 U.S. ~149 (1973); Williams v. Florida, 399 U.S. 78
m)       Pitcher v. Lakes Amusement Co., ,236 N,X2d  333 (Iowa
1975): In re P.L. No. 305 and P.L. No. 309 of the Indiana Acts
of 1975, 334 N.E.2d 659 (Ind. 1975); Opinion of the Justices, 271
N.E.2d 335 (Mass. 1971) (all of rhich were decimliams
and found state constitutional reauirements to oermit iurias of
less than twelve persons). c!mtra
                              -__-- Paode  V. CollinS,
                                  - _-_F___.~~~_         552 P.2d
742 (Cal. 1976); Gilbreath VT Wallace, ,292 So.2d 651 (Ala. 1974);
                           , 278 A.2d 852 (R.I. 1971) (all of
                           illiams and found state constitutions
required juries of twelve persons).                  Statute
Reducing Number of Jurors as                         Trialby   Jury,
Annot., 47 A.L.R. 3d 895 (1973); Supreme Court's COnStruCtiOn     of
Seventh Amendments's Guaranty of Riqht to Trial by Jurv. AnnOt..
40 L.Ed. 2d 846,(1975). While,Jordan appears to be
ling Texas law, we caution that=2




                          p. 4408
Honorable Henry Wade            - Page 3   (H-1076)


the federal government and of other states since the time that
case was decided suggest that it is possible that the Texas
Supreme Court may reexamine Jordan if the issue is presented to
it.
                          SUMMARY
            While Jordan v. Crudgington remains unal-
            tered, juries of twelve persons appear to
            be,re&ked   in the Dallas County Courts at
            Law. We caution, however, that major
            changes inthe law of the federal govern-
            ment and of other states since the time
            of Jordan suggest the possibility that
            the Texas Supreme Court may reexamine
            Jordan if the issue is presented to it.




                               Attorney General.of Texas
APPROVED:




Opinion Committee
',
 jst




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