       THEATTORNEY                 GENERAL
                    OF   TEXAS



                      July 19,   1966


Honorable Charles A. Allen         opinion NO. C- 726
Criminal District Attorney
Harrison County                    Re: Pay to Jurors and Con-
Marshall, Texas                    struction of Article 2122,
                                   Vernon's Civil Statutes,
                                   Article 1056 and Article
                                   35.24, Vernon's Code of
Dear Mr. Allen:                    Criminal Procedure of Texas.
     In an opinion request of this office you pose the
following questions:

          (1)   Is the Commissioners Court of Harrison
                County, Texas authorized to pay $8.00
                per day to persons selected to serve as
                jurors in an actual trial on the merits
                within the limits as prescribed in Article
                2122, Texas Revised Civil Statutes, Article
                1056, Texas Code of Criminal Procedure and
                Article 35.24, Texas Code of Criminal Pro-
                cedure (new code)?

          (2)   Is the Commissioners Court of Harrison
                County, Texas authorized to pay $5.00
                per day to persons who are summoned and
                appear and remain in attendance in the
                Court, but who are not selected in any
                trial on the merits, within the limits as
                prescribed in Article 2122, Vernon's Civil
                Statutes, Article 1056, Texas Code of
                Criminal Procedure and Article 35.24
                Vernon's Code of Criminal Procedure j1966)?

          (3)   Is the Commissioners Court of Harrison
                County, Texas authorized to pay $4.00 to
                persons who are summoned and appear and
                who are excused immediately after being
                tested on voir dire within the limits as
                prescribed in Article 2122, Texas Revised
                Civil Statutes, Article 1056, Texas Code
                of Criminal Procedure and Ar%icle 35.24,
                Texas Code_;;g;fiminal Procedure (1966)?
Honorable Charles A. Allen, page 2    (c- 726)


                Is the Commissioners Court of Harrison
                County, Texas authorized to pay any amount
                to persons who are summoned, for jury
                service and who are excused by the court
                or by agreement of the attorneys prfor to
                the person being tested on voir dire with-
                in the limits as prescribed in Article 2122,
                Texas Revised Civil Statutes, Article 1056,
                Texas Code of Criminal Procedure and Article
                35.24, Texas Code of Criminal Procedure (1966)?
     As to the first question, it is the opinion of this
office that the Commissioners Court of Harrison County,
Texas is authorized to pay $8.00 per day to persons selected
to serve as jurors in an actual trial on the merits by
virtue of the following statutes.
     Article 2122, Section (a) of Vernon's Civil Statutes,
reads in part:
          "Each juror in a district or county court at
           law is entitled to receive not less than $4
           nor more than $10 for each day or fraction
           of a day that he attends court as a juror.
           The commissioners court of each county shall
           determine annually, within the minimum and
           maximum prescribed in this subsection, the
           amount of per diem for jurors, which shall
           be paid out of the jury fund of the county
           0 s .
     Article 1056,Section (a) of Vernon's Code of Criminal
Procedure 1925, (which was not repealed by the new code)
provides:
          "(a) Each juror in a district or cPimina1
           district court, county court9 OT county
           court at law is entitled to receive not
           less than $4 nor more than $10 for each
           day or fraction of a day that he attends
           court as a juror.”
     Article 35.24, VernonQs Code of Criminal Procedure,
1966,provides  as follows:
          "All veniremen and jurors shall be paid a
           per diem of not less than four dollars nor
           more ,thanten dollars per day, as fixed by
           the commissioner ~..gpt of such county, which
  .




Honorable Charles A. Allen, page   3   (C-726)

          shall be paid out of the jury fund. No
          greater sum shall be paid challenged venire-
          men, regardless of the number of cases to
          which they may be summoned in any one day."
     When these three articles are construed together it
is apparent that the commissioners court in each county
shall annually determine the fee to be paid, providing a
minimum fee of not less than $4.00 per day and a maximum
fee not to exceed $10.00 per day. Therefore $8.00 is
permitted, for it is within the scale authorized by the
Legislature.
     The second question deals with the amount to be paid
jurors who are summoned and appear and remain in attendance
in the Court, but who are not selected in any case of a
trial on the merits. This office is assuming that none
of these persons have been examined on voir dire. Assuming
this, it is the opinion of this office, that unless these
persons are examined on voir dire, the Commissioners Court
of Harrison County, would not be authorized to pay these
persons any fee, for Section (a) of Article 2122, Vernon's
Civil Statutes of Texas provides in part:
          11
           a 0 .A person who responds to the process
           of a court, but who is excused from jury
           service by the court for any cause after




And Article 1056,Section (d), Veynon's Code of Criminal
Procedure, 1925 provides:
         "(d) A person, other than a special venire-
          man or talesman, who responds to the process
          of a district 02"criminal district court,
          county court, or county court at law for
          petit jury duty, but who is excused from .iurs
          service by the-court for any cause after - -
                     d on voir dire, is entitmo
                      less than $4 nor more than $5
          for each day or fraction of a day that he
          attends court in response to such process."
          (Emphasis Added)

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Honorable Charles A. Allen, page 4      (c-726)

     At first reading Article 1056would seem to conflict
with Article 35.24, Vernon's Code of Criminal Procedure
(1966) which reads:
           "All veniremen and jurors shall be paid
            a per diem of not less than four dollars
            nor more than ten dollars per day, as
            fixed by the commissioners court of such
            county, which shall be paid challenged
            veniremen, regardless of the number of
            cases to which they may be summoned in
            any one day."
     However, it is our opinion that Article 35.24 is a
general statute setting out a scale of pay for veniremen
and jurors and was not intended to replace Article 1056,
which sets out and states the conditions when veniremen
and jurors are to be paid and whether they are to be paid.
Article 1056specifically states that a person can only
be paid after being tested on voir dire. Therefore, un-
less a person is examined on voir dire, regardless whether
the case is criminal or civil, the Commissioners Court of
Harrison County, is not authorized to pay that person
any fee, However, in this connection we are of the opinion
that a voir dire examinatfon begins with the administration
of the initial oath by the court to the persons summoned
for jury duty.
     As to the third question, it is the opinion of this
office that the Commissioners Court of Harrison County
is authorized to pay $4.00 to jurors who are summoned,
appear, and are excused after being tes,tedon voir dire.
Four dollars ($4) is within the $4.00 to $5.00 per diem
scale which the Legislature authorizes the commissioners
court to pay in Article 2122, Section (a), Article 1056,
Section (d).
     The fourth question is answered in the negative.
                      SUMMARY
                      -------
     (A) When jurors are selected to serve in an actual
         trial on the merits the Commissioners Court
         is authorized to pay these persons $8.00 per
         day.
     (B)   Jurors who are summoned and appear and remain
           in attendance in the Court, but who are not
           selected in any trial on the merits and are
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  .      .




Honorable Charles A. Allen, page     5     (c- 726)


             not examined on voir dire, are not entitled
             to any compensation as set out in Article
             2122, Section (a), Vernon's Civil Statutes
             and Article 1056,Section (d) of Vernon's
             Code of Criminal Procedure, 1925.

      (C)    Jurors who are summoned and appear and who
             are tested on voir dire and are excused
             are entitled to be paid $4.00 by the
             Commissioners Court of Harrison County,
             Texas.

      (D)    A person who is summoned for jury service
             and who is excused by the court or by agree-
             ment of the attorneys, prior to the juror
             being tested on voir dire, is not entitled
             to any compensation.
                                 Yours very truly,
                                 WAGGONER CARR
                                 Attorney General of Texas


                             B
                                 Assistant Attorney General
REL/lh
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Lonny Zwiener
Sam Kelley
Pat Bailey
John Reeves
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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