Can jurors donate their jury pay to programs other than juror counseling?

Plain-English summary

Abelino Reyna, the McLennan County Criminal District Attorney, asked the Attorney General to settle a question that came down to a comma. A Texas juror can decline the daily reimbursement and instead donate it to a program. Government Code section 61.003(a)(4) lets a juror donate to "any other program approved by the commissioners court of the county, including a program established under Article 56.04(f), Code of Criminal Procedure, that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony." The district attorney read the final comma as creating an ambiguity and asked whether the closing phrase about psychological counseling limited the donation to counseling programs only, or merely described the particular article 56.04(f) program.

The AG concluded the counseling phrase did not limit the statute. Applying the doctrine of the last antecedent, a qualifying phrase is generally confined to the words immediately before it, the AG read the counseling language to describe only "a program established under Article 56.04(f)," the phrase it directly followed, and not the broader "any other program approved by the commissioners court." The AG gave several reasons: article 56.04(f) already authorizes exactly the counseling program the last phrase describes; the two commas around "Code of Criminal Procedure" are just the standard way of citing that code; the word "including" is a term of enlargement, not limitation; and reading the statute to allow only counseling programs would make the earlier "any other program" language meaningless, which courts avoid.

The AG also pointed to the statute's history. When the Legislature amended subsection 61.003(a)(4) in 2007, it kept the commissioners court's authority to approve "any other program" and added the juror-counseling option on top of it, rather than replacing the broader authority. Reading all of the language together, the AG concluded that subsection 61.003(a)(4) does not limit the donation of juror reimbursements to only juror counseling programs.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Commissioners courts approving juror-donation programs (as the opinion described it): The opinion described a commissioners court as retaining authority to approve "any other program" to receive donated juror reimbursements, not just a juror psychological counseling program. The counseling language was read as one example enlarging that authority, not a cap on it.

Jurors choosing where to donate (as the opinion described it): The opinion treated a juror as able to donate the daily reimbursement to any program the commissioners court has approved under subsection 61.003(a)(4), in addition to the specific funds and services already listed in subsections (a)(1) through (a)(3).

The district attorney who asked (as the opinion described it): The opinion answered the comma question directly: the closing phrase modifies only the article 56.04(f) counseling program it immediately follows, so the statute does not restrict juror donations to counseling programs.

Common questions

Does a juror have to donate jury pay to a counseling program?
The AG said no. Section 61.003(a)(4) lets a juror donate to "any other program approved by the commissioners court," and the counseling language is just one example, not a limit.

What does the "including a program established under Article 56.04(f)" language do?
The AG read it as describing one kind of program a commissioners court may approve, a juror psychological counseling program, and explained that "including" is a term of enlargement, so it adds an example rather than narrowing the field.

Why does the comma matter?
The district attorney thought the final comma might tie the counseling requirement to "any other program." The AG concluded the two commas just set off "Code of Criminal Procedure" in the citation, and under the last-antecedent rule the counseling phrase modifies only the program it immediately follows.

Who decides which programs qualify?
The AG described the commissioners court of the county as the body that approves programs eligible to receive donated juror reimbursements under subsection 61.003(a)(4).

Background and statutory framework

Government Code section 61.003 sets out the programs to which a juror may donate the daily reimbursement (Tex. Gov't Code Ann. § 61.003(a)). Subsections (a)(1) through (a)(3) list specific recipients: crime victims, child welfare and protective services, and shelter and services for victims of family violence. Subsection (a)(4) adds "any other program approved by the commissioners court of the county, including a program established under Article 56.04(f), Code of Criminal Procedure, that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony" (Tex. Gov't Code Ann. § 61.003(a)(4); see Tex. Code Crim. Proc. Ann. art. 56.04(f)).

The AG resolved the grammatical question with standard tools of construction. Statutory words are read in context under the rules of grammar and common usage (Tex. Gov't Code Ann. § 311.011(a)), and the doctrine of the last antecedent confines a qualifying phrase to the words immediately preceding it (Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000); In re Guardianship of Finley, 220 S.W.3d 608 (Tex. App.-Texarkana 2007, no pet.)). The Code Construction Act treats "including" as a term of enlargement (Tex. Gov't Code Ann. § 311.005(13)). The AG also invoked the rule that courts avoid a construction that renders statutory language meaningless (Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999); Tex. Workers' Comp. Ins. Fund v. Del Indus. Inc., 35 S.W.3d 591 (Tex. 2000)), and the principle that the Legislature knows how to write a limit when it wants one (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)). Reading the 2007 amendment as keeping the "any other program" authority and adding the counseling option, the AG concluded subsection 61.003(a)(4) does not limit juror-reimbursement donations to counseling programs.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 61.003(a), (a)(4) (programs for donation of juror reimbursement)
• Tex. Gov't Code Ann. § 311.005(13) ("including" as a term of enlargement)
• Tex. Gov't Code Ann. § 311.011(a) (words read in context, per grammar and common usage)
• Tex. Code Crim. Proc. Ann. art. 56.04(f) (juror psychological counseling program)

Cases:

• Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013)
• In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000)
• In re Guardianship of Finley, 220 S.W.3d 608, 615 (Tex. App.-Texarkana 2007, no pet.)
• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284-85 (Tex. 1999)
• Tex. Workers' Comp. Ins. Fund v. Del Indus. Inc., 35 S.W.3d 591, 593 (Tex. 2000)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)

Legislative history referenced:

• Act of May 25, 2007, 80th Leg., R.S., ch. 1378, § 5, 2007 Tex. Gen. Laws 4713, 4715

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0010
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0010.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 9, 2015

The Honorable Abelino Reyna Opinion No. KP-0010
McLennan County Criminal District Attorney
219 North 6th Street, Suite 200 Re: Programs to which jurors may donate
Waco, Texas 76701 their juror reimbursement under subsection
61.003(a)(4) of the Government Code
(RQ-1224-GA)

Dear Mr. Reyna:

You ask whether subsection 61.003(a)(4) of the Government Code restricts the programs allowed to be considered by jurors for donation of jury reimbursements to only juror counseling programs. [1] Section 61.003 authorizes programs to which a juror may donate the juror's daily reimbursement. See TEX. GOV'T CODE ANN. § 61.003(a) (West 2013). Subsections (a)(1)-(3) list specific categories of funds and services to which a juror's donation is permitted. See id. § 61.003(a)(1) (crime victims), (2) (child welfare and protective services), (3) (shelter and services to victims of family violence). Subsection 61.003(a)(4) provides that a juror may donate his or her daily reimbursement to

any other program approved by the commissioners court of the county, including a program established under Article 56.04(f), Code of Criminal Procedure, that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony.

Id. § 61.003(a)(4). You assert the language of the provision is ambiguous because of the final comma, and you question whether the phrase "that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony" modifies "a program established under Article 56.04(f), Code of Criminal Procedure" or "any other program approved by the commissioners court of the county." Request Letter at 1.

The cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). "'Legislative intent is best revealed in legislative language.'" In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). Statutory words and phrases "shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (West 2013).

Relevant to the structure of subsection 61.003(a)(4), the doctrine of the last antecedent provides that "a qualifying phrase in a statute . . . must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000); accord In re Guardianship of Finley, 220 S.W.3d 608, 615 (Tex. App.-Texarkana 2007, no pet.). "Such words, phrases, and clauses are not to be construed as extending to or modifying others which are more remote." In re Guardianship of Finley, 220 S.W.3d at 615 (quotation marks omitted). The exception to the doctrine is that when "several words are followed by a clause which is as much as applicable to the first and other words as to the last, the clause should be read as applicable to all." Id. (quotation marks omitted). Under this doctrine, the phrase "that offers psychological counseling to jurors in criminal cases involving graphic evidence or testimony" should be construed to modify only the immediately preceding phrase "a program established under Article 56.04(f), Code of Criminal Procedure" and not as a limitation on the first phrase "any other program approved by the commissioners court of the county" for several reasons. TEX. GOV'T CODE ANN. § 61.003(a)(4) (West 2013). First, the fact that article 56.04(f) authorizes a commissioners court to authorize a program identical to that which is described in the last phrase suggests that the last phrase describes the program identified in the immediately preceding phrase and is not as directly applicable to the first phrase. TEX. CODE CRIM. PROC. ANN. art. 56.04(f) (West Supp. 2014). Second, the final comma acts in conjunction with the immediately preceding comma to identify and separate the referenced statutory code from the article number and the descriptive phrase. The two commas setting off "Code of Criminal Procedure" are merely a preferred method of referring to article 56.04(f) of the Code of Criminal Procedure. See TEX. LEGISLATIVE COUNCIL DRAFTING MANUAL § 7.61 (Aug. 2014) at 120 (providing examples of citations for Texas Codes, all of which show the particular code set off with commas). [2]

The language of subsection 61.003(a)(4) supports this construction in its use of the term "including." TEX. GOV'T CODE ANN. § 61.003(a)(4) (West 2013). The Code Construction Act informs us the term "including" is typically a term of "enlargement." Id. § 311.005(13). The use of the term here indicates that the entire phrase after "any other program approved by the commissioners court" is intended to be one of enlargement or expansion. Id. § 61.003(a)(4).

Moreover, a construction of the last phrase as the only program that could be approved for juror donation would essentially render the first phrase meaningless because under such a construction the commissioners court would not have the authority to approve "any other program." Id. Courts will avoid construing a statute in a way that renders its language meaningless. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284-85 (Tex. 1999); see also Tex. Workers' Comp. Ins. Fund v. Del Indus. Inc., 35 S.W.3d 591, 593 (Tex. 2000) (acknowledging presumption that "each sentence, clause and word [in a statute] is to be given effect if reasonable and possible" (quotation marks omitted)). If the Legislature intended the only program that could be approved by the commissioners court to be a juror psychological counseling program, it could have drafted its 2007 amendment of subsection 61.003(a)(4) to achieve that result by deleting the authority for a commissioners court to approve "any other program." It did not do so. See Act of May 25, 2007, 80th Leg., R.S., ch. 1378, § 5, 2007 Tex. Gen. Laws 4713, 4715. Instead, the Legislature retained the language giving the commissioners court authority to choose "any other program" and added authority to allow donations to a juror counseling program. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact law effectuating its intent). Our construction gives effect to all of the language in subsection 61.003(a)(4).

For these reasons, we conclude that subsection 61.003(a)(4) of the Government Code does not limit the donation of juror reimbursements to only juror counseling programs.

SUMMARY

Subsection 61.003(a)(4) of the Government Code does not limit the donation of juror reimbursements to only juror counseling programs.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Abelino Reyna, McLennan Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 22, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Available at http://www.tlc.state.tx.us.