The Honorable Charles D. Houston Opinion No. H- 725
County Attorney
Austin County Re: The taxation as costs of the
P. 0. Box 83 county law library fee in probation
Bellville, Texas 77418 proceedings in the county court.
Dear Mr. Houston:
You have requested our opinion as to the scope and application of
article 1702i, V. T. C. S. , which provides for the establishment of county
law libraries in counties with a population of 350, 000 or less and provides
further in section 4 that:
For the purpose of establishing County Law
Libraries after the entry of such order, there
may be taxed, collected and paid as other costs in
each civil case, except suits for delinquent taxes,
hereafter filed in every county or District Court, a
sum to be fixed by the Commissioners Court of the
respective counties within the State of Texas, not to
exceed Five ($5.00) Dollars in each case; provided,
however, that in no event shall the county be liable
for said costs in any case. Such costs shall be
collected by the Clerks of the respective Courts in
said counties and paid by said Clerks to the County
Treasurer, to be kept by said Treasurer in a sepa-
rate fund to be known as “County Law Library Fund.,”
Such fund shall not be used for any other purpose.
By resolution your Commissioners Court has set the amount of costs at
$5. 00. You specifically ask us,
Are Probate matters, such as the administration of
estates, the appointment of guardians, and commitments
to the state hospital, “CIVIL CASES” within the meaning
of Article 1702i, and should the library fee of $5. 00 be
taxed as costs therein?
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p. 3101
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The Honorable Charles D. Houston - page two (H-725)
Proceedings within the jurisdiction of the probate court are governed by
the Texas Probate Code, enacted in 1955 and effective on January 1, 1956.
Prob. Code $ 2(a). Costs in probate matters are referred to in section 12 of
the Code which provides in part:
(a) Applicability of Laws Regulating Costs. The
provisions of law regulating costs in ordinary civil
cases shall apply to all matters in probate when not
expressly provided for this Code.
There is nothing in the Code which covers costs for county law libraries
and the cost provision of 1702i would therefore apply to probate proceedings
except where otherwise interpreted and limited by the Courts of Texas.
In Hogan v. Turland, 428 S. W. 2d 316 (Tex. Sup. 1968), the Supreme
Court of Texas, in defining a civil action or case as opposed to a criminal
action, noted, with regard to a mandamus proceeding, that
[t 1he civil nature of the action is demonstrated
by the fact that it is not brought by nor in the name
of the state. . . .
Accordingly, we are of the opinion that the county library fee is taxable as
costs in all probate proceedings except where the action is brought by or in the
name of the state as where the confinement of a person of unsound mind or a
habitual drunkard is sought under the provisions of section 415 of the Code. But
see Ex Parte Carson, 159 S. W. 2d 126 (Tex. Crim. App. 1942), holding an earlier
Gcket bill relating to library fees to be a local or special law.
We also refer you to section 246 of the Probate Code which allows the court,
in its discretion, to order that “no costs. . . be charged in connection with. . .
(a guardianship) proceeding” wherein a guardian is appointed for the sole “purpose
of enabling a person to receive public assistance which is contingent upon need
, . . !I
SUMMARY
The county law library fee provided by article
1702i. V. T. C. S., may be taxed as costs, within
the meaning of article 1702i, in all probate pro-
ceedings except an action brought for the purpose
of confining a person of unsound mind or a habitual
drunkard.
Attorney General of Texas
The Honorable Charles D. Houston - page three
Opinion Committee
jad:
p. 3103