Untitled Texas Attorney General Opinion

THEA O-Y GENERAL OF TEXAS June 29, 1962 Mr. Walter E. Wilson Opinion No. WW-1372 County Attorney Ector County Re: Whether a district judge Odessa, Texas may assess as court costs an Investigator's fee for the invest1 ation required by Article & 6(a), Section Dear Mr. Wilson: 2, Vernon's Civil Statutes. In your request for an opinion from this office, you ask a question which we quote as follows: "May a district judge assess as court costs an Investigator's fee for the inves- tigation required by Article 46(a), Sec. 2, V.A.C.S." Section 2 of Article 46(a) of Vernon's Civil Statutes, provides as follows: 'Sec. 2. Upon the filing of such petition for the adoption of any minor child, the court or judge shall cause an investigation to be made of the former environment and antecedents of the child for the purpose of ascertaining whether he Is the proper subject for adoption, and of the home of the petitioner to determine whether it is a suitable home for the child. Such Investigation shall be made by a suitable person selected by the court; provided, however, that the State Department of Public Welfare may make an investigation in any adoption case except those In which the child was placed for adoption by a legally licensed child-placing agency In the State. The results of such Investigation shall be embodied in full written reports, which shall be submitted to the court at or prior to the hearing& the petition, and which shall be filed with the records of the proceedings and become a part thereof; provided further that a representative of the State Department of Public Welfare may appear in court if, In the opinion Mr. Walter E. Wilson, page 2. (m-1372) of the Stdt.Department of Public Welfare or the court, the best interest of the child will be served." The fees and compensation of certain officers and court appointees are authorized to be taxed as court costs. Among these are the expenses of Issuing and returning a writ or order. Dalton v. Rainey, 75 Tex. 516, 13 S.W. 34 (1889). Receivers fees taxable as a part of the costs to be paid out of the property involved. Espuela Land & Cattle Co. v. Blndle, 32 S.W. 582 (Clv.App. 1895). The compensation of a surveyor appointed by the court in an action of trespass to try title. Beaumont Irrigating Co. v. BeLaune, 173 S.W. 514 (Clv. App. 1915 1. Compensation of a master in chancery appointed by the court. Rule 171, T.R.C.P. The expense incurred by the sheriff In caring for attached property. Morgan v. North Texas Nation- al Bank, 34 S.W. 138 (Civ.App. 18gb), Worley v. Shelton, 86 S.W. mv.App. 1905); except where the officer caring for the property Is a mere trespasser who has no right to possession thereof. Colby v. Mitchell, 33 S.W. 1040 (Clv.App. 1896), Wilson v. Kerley, 25 S.W.2d 887 (Clv.App. 19X0), and the com- pensation of an auditor employed by the court to state the accounts between the parties and make a report thereof. Rule 172 T.R.C.P., Nicholson v. Mills, 227 S.W.2d 354 (Civ.App. 1950, error ref.). Also, In arbitration proceedings between the employer and employee, the fees and mileage of the arbitra- tors may properly be taxed as costs against either or all of the parties to the arbitration, as deemed just, and will con- stitute a just part of the award. Article 247, Vernon's Civil Statutes. And certain fees in cases where land is sold to satisfy taxes are taxed as costs against the land sold. Arti- cle 7333, Vernon's Civil Statutes. Under Section 2 of Article 46(a), Vernon's civil Statutes, It IS mandatory upon the court to cause an investi- gation to be made of the former environment and antecedents of the child as well as the home of the petitioners. Davis v. Bastin, 205 s.w.2d 838 (civ.App. 1947). However, we have found no express statutory authority for the assessment of an investi- gator's fee as court costs. When there Is no statute which expressly authorizes a court appointee's fee, It has been held that such fees should be fixed and allowed on a reasonable basis taking into consideration the circumstances of the case, the charges made, type of work to be performed and, if a hearing is held on the matter, the evidence offered in support thereof and in oppo- Mr. Walter E. Wilson, page 3 (WW-1372) sltion thereto. Metcalfe v. McCarty, 301 S.W.2d 263 (Clv. APP. 1957). Rule 127 of the Texas Rules of Civil Procedure pro- vides in part as follows: "Each party to a suit shall be llabl: for all costs Incurred by him. . . . The meaning of the word 'incurred' as It appears In Rule 127 is discussed in 11 Tex. Jur. 292, Costs, Sec. 40, as follows: "Accordingly an Item of costs Is not taxable unless it has been 'incurred' by the party sought to be charged therewith. The word 'incurred' as used In the Rule means 'brought on', 'occasioned' or 'caused.' A party may be said to have 'Incurred' the costs If they are the necessary and contem- plated result of his conduct in the pro- ceeding, such as the costs Incurred by a plaintiff suing a minor for the services of a guardian ad lltem, . . ." Therefore, it is our opinion, based on the auth- orities treated above, that a district judge who entertains an adoption petition, has the discretion to fix the amount of the compensation to be taxed as cost, to be paid to the ln- vestlgator and, since there is no statute expressly authoriz- ing an Investigator's fee In this Instance, the allowance of such fee arises by implication, and consequently, only reason- able fees should be allowed. SUMMARY A district judge may assess as court costs an investigator's fee for the Investigation re- . - Mr. Walter E. Wilson, page 4. (w-1372) quired by Article 46(a), Section 2, of Vernonls'Clvll Statutes. Very truly yours, WILL WILSON Attorney General of Texas By J.w I.Ray nd Williams, Jr.\ 1RW:mkh:zt Assistant APPROVED:' OPINION COMMITTEE W. V. Geppert, Chairman C. J. Taylor Pat Bailey Coleman Gay Riley Eugene Fletcher REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore