Hon6rable.E. C. Fetry, ,Jr~.
County Attorney
Dlmmit County
Carrizo Springs, Texas
Dear Sir: Opinion Ho. O-6877
Re: If a juvenile employs
counsel, Is it the duty
of the county attorney to
appear when requested by
the court and present the
evidence alleging said
child to be deliaquent?
And related questions.
Your request for our opinion on the above questions
reads as follows:
"I would like to have an opinion from your
Departmeut on the following questions.
'(1) Under the &venlle Delinquency Act
where a child Is found to be a delinquent child
after a Jury hearing and the Judge places him in
the custody of his parents until he reaches the
age of 21, and further orders that Court costs
that have accumulated be paid by the parent of
the child and/or the child; can such Court costs
be so assessed and what remedy Is there if the
parent and/or child ~refuses to pay said Court
CO8ts ?
"(2) If said child employs counsel, Is It
the duty of the County Attorney to appear when
requested by the Court and present the evidence
alleging said child to be a delinquent child?
@In examining Article 2338, Section 3, I find
that a separate court known as a Juvenile court is
created by the aet and that the County Judge can
serve as Judge of the Juvenile court which Is our
case in this county. I find that appeals shall be
Hon. H, C. Petrg, Jr., page 2 (0-6877)
taken to the Court of Civil Appeals, therefore, I
assume that the Juvenile Court is a Court of record,
and in view of the fact that appeals can be taken
and the Court,ls created, It is my opin%on that
court cost8 can be assessed either against the delln-
quent child, hie parents or guardian.
“I find in Section 7 of the above Article, that
It Is the duty of the Judge, County Attorney OF Proba-
tion Officer to make prellmiaary inquiry, and, if, in
their judgment, jurisdiction should be acquired, the
County Attorney shall prepare and file la the Court a
petitioe, or any Attorney may file said petition, but
the law specifically names the County Attorney, and
It would appear that In view of thie duty being placed
upon him, it Is his duty to appear and present the
evidence aDd testimony a8 alleged in the petition. In
this connection It Is my opinion that the County Attor-
ney does not have to s,lgn the petition unless he desires
to do so, but the person alleging the facts to be true
can sign the petition.
“I find in Section 13-A that the Judge may order
the parent or other responsible person to pay such sum
as will in whole or la part support such child whether
committed to the custody of his own parent or other
person, agency or institution, and find further that
the court ahall have full power to enforce such judg-
ment for support by civil contempt proceedings after
10 days notice to parent. It Is my belief from this
that it was the intention of the Legislature that the
Judge could also order costs of the hearing to be paid
by such parent or other person responsible for the care
and support of the child.
“I find in Section 21 of the above Article that
the Appellate Court may provide for a recognizance bead.
I find in the case of Steed v. State, 183 S. W. (2d)
458, that the’proceedings are civil and not criminal
and hence rule of civil proceedings are applicable there-
to which would tend to show that court costs could be
assessed, and If court costs can be asaesaed, then the
question arises as to the amount of fee the county officers
would be entitled to. For instance, the usual fee for a
County Court aase to county attorney In a criminal case
is $10.00, however, there is no provision made
that I can flad to renumerate our expenses for the
Sheriff who serves the notice, and the Judge who would
hear the evidence and the County Attorney who must pre-
sent the evidence, and this becomes an important thing
in a fee county a8 in this County. Also in a jury case
Hon. Ii. C. Petry, Jr., page 3 (O-6877)
the jurors who serve expect to be compensated and It Is
my opinion that a charge for said jurors should be made.
"After reading the Juvenile Delinquency Act the
above questions came to mind and in view of the fact
that we recently concluded a trial here in which a
child was found guilty of being a delinquent by a
jury under a charge of rape, in view of the fact that
the Judge assessed cost8 against such parent of said
child and in further view of the fact that the attor-
ney for the child advised them not to pay costa
because there Is no provision made under the act for
the coats, It Is very Important to know whether such
costs can be assessed against the Parent or child or
whether the costs must be paid by the County, and if
80, can Said costs be based in the ssme manner as a
lunacy or criminal case in County court, or civil case
in County court.
"Itis difficult under the aat to determine
if 8uCh costsare to be adjudged, what the amount of
such costs should be."
In the case of In Re Deady, et al., 175 S. W. (26) 297,
affirmed by the Supreme Court in 179 S. W. (2d) 269 the Amarillo
Court of Clvcril Appeals, in holding that Article 2338-1, Vernon's
Annotated Civil Statutes,,known as the Juvenile Court Act, is
constitutional, held In part as follows:
'The Act sets up a complete jurisdiction and
procedure for the hearing of juvenile delinquent
cases and there Is no other law, civil or criminal,
to govern such cases and situations as defined by
the Act and placed within the exclusive jurlsdlc-
tion of the juvenile court provided for in this
Act. Rowhere does the Act provide that either
criminal or civil procedure shall be followed.
While Section 2 of the Act provides that the 'Act
shall be liberally construed,' it does not give the
trial court unlimited authority and power in pro-
cedure in such cases.
'I* * *
"The Act lo question provides for a jury trial
when a jury is demanded and authorizes the trial
court to order a jury on his own motion in such
cases. Nowhere does the Act provide for the pay-
ment of a jury fee and nowhere does It require the
Hon. H. C. Petry, Jr., page 4 (O-6877)
trial court to follow civil procedure In demanding
and impanelllng a jury if and when a jury Is deman-
ded in such cases. + * *'
Said Article 2338-l contains no provision relative to
the payment of costs in a proceeding thereunder.
In passing upon a similar question our Opinion No.
O-5786, wh%ch we here adopt, held in part as follows:
"The right to costs as of course is purely
statutory. Costs can be Imposed and recovered only
in cases where there Is statutory authority therefor.
Costs, 11 Texas Jurisprudence, 228, para. 2, note 17;
Costa, 20 Corpus Juris Secundum, page 260, para. 2,
note34; U. 5. ca8Wdty Company vs. Hampton, (C. A.)
293 s. w. 260.
%ecurity for costs must be given in causes or
proceedings falling within the requirement of controll-
ing statutes, but they need not be given In causes or
proceedings beyond the scope of such mandatory requlre-
ments, and under some provisions the matter will rest
in the sound discretion of the Court. w, 20 C.J.S.,
364, para. 126.
"It has been held that in the absence of a statu-
tory provision costs cannot~be awarded in a proceeding
in the juvenile courts; Juvenile Courts and Offenders,
31 Am. Jr., 808, para. 45, note 9; Infants, 31 C. J.
1110, para. 24, note 39.
"In an annotation on 'what is an action within
the statutes requiring security for costs,' 131 A.L.R.
1476, there is cited Koble v. People (1877), 85 Ill.
336, wherein it was held tha,t a statute requiring of
non-residents a bond for costs was not applicable in
bastardy proceedings by the mother against the putative
father to compel him to bear part of the burden of the
support of the child.
"In the case of Pierce County vs. Magnuson, 1912)
70 Wash. 639, 127 Pac. 302, Ann. Cas. 1914b, page l389,
the Supreme Court of Washington, in discussing the ques-
tion of costs under the Juvenile Court Act of that State,
said:
"'The juvenile court act makes no provision
for the awarding or payment of costs, except the pro-
vision authorizing the publication of notice when the
Hon. H. C. Petry, Jr., page 5 (O-6877)
person standing in the position of natural or legal
guardian of the
_- person of the alleged
_. delinquent
-. child
18 a non-reslaent, or tne wnereabouts of such peraon
is unknown. In caees of such publication of notice,
it I8 provided that the cost of such publication shall
be paid by the county. Another section provide8 for
~~;i~y~ment by the county of salaries to probation
. Otherwise the act Is silent on the question
of fees and costs. The awarding and payment of costs
is purely a matter of statutory regulation. The re-
covery of costs was unknown to the common law, and no
provision oould be made for their payment except as
expressly authorized by statute. ThLs ruie has been
one of euch universal application that it has become
the simple doctrine of the court that costs are the
creation of statutes merely, and that the allowance
of them in any case would depend entirely upon the
terms of some statute. It has also been held that
there is no inherent power in the court to award
costs ) and that they can be granted Zn any case .or
proceeding solely by virtue of express stitutory
authority.’
“Continuing, the Supreme Court of the state Of
Washington, said:
“‘The doctrine that costs cannot be awarded ex-
cept as provided by statute, applies to criminal as
well as civil caees. In this respect the character
of the proaeedings create8 no distinction. In State
v. Blackburn, 61 Ark. 407, 33 S. W. 529, where It was
sought to charge the aounty with cost8 in a bastardy
proceeding, the court, after laying down the rules
that the liability of county for cost8 in criminal
prosecutions rest alone on the statute, concludes by
saying: "Our conclusion is that no one is bound for
coats, unless rendered so by 8ome porritive provision
of law, or as a necessary lmpllcation from provlslon
of law; and that neither the state nor the county
is bound even by legal provisions, unless it is spec-
ifically or by necessary implication named or referred
to therein .” This rule is supported by the following
cases, and seems to be generally accepted as a true
rule: . . .I The court here cited numerous support-
ing decisions. f
It is our opinion, therefore, that no judgment for costs
can be awarded against anyone In a proceeding under Article
2338-1.
Article 2338-1 also provides in part as follows:
HOU. H. C. Petry, page 6 (0-6877)
a * * l
“Sec. 7. Any person may, and any peace o ffic er
shall, give to the Judge, County Attorney, or to the
Probation Officer of the county, information Fn his
possession that a child is within the prov3.aiona of
this Act. Thereupon the Judge, the County Attorney
or the Probation Officer shall make or have made,
preliminary inquiry to determine whether the lnter-
ests of the pub110 or of the child require that further
action be taken. If etther the Judge or the County
Attorney mhall determine that formal jurisdiction
should be acquired, the County Attorney shall pre-
pare'and file In the court, or any attorney may
prepare and file in the court a petition alleging
briefly the facta which bring aaid child within the
provleions of this Act, . . .
"Sec. 19. It La hereby made the duty of every
county, town or municipal official or department, to
render all assistance and cooperation,within his or
ita jurlsdlctlonal power which may further the ob-
jects of this Act. . . .'I
The Dendy case, 175 S. W. (2d) 297, above referred to,
also holds as follows:
"The Act in question sets up a complete jurls-
diction and procedure for hearing such cases and no-
where does it provide that either criminal or civil
procedure shall be followed. It Is our opinion that
it contemplates a cooperative attempt upon the part
of all the officers of the court in seeing that the
best Interest OS the child is protected in such
cases and that he la given every possible advantage
for proper training for good citizenship."
It is our opinion that, under the above p~ovlslon of said
Juvenile Court Act and the last above quoted holding of the Court
Civil Appeals, it is the duty of the county attorney to render
all possible assistance in the handling of all cases filed under
said Act. Such services mupt be performed, however, without com-
pensation, as no provision is made In said Juvenile Court Act for
the payment of fees to the county attorney.
34 Tex. JuP., Sec. 105, p. 508, states the rule as to the
payment of feea to public officials as follows:
Hon. I-I. C. Petry, page 7 (O-6877)
"Statutes prescribing feea SOP public officers
are atrlctly construed; and hence a right to fees.may
not rest In implicatl.on. Where this right Is left
to construction, the language of the law must be
construed in favor of the government. Where a statute
1s capable of two constructions, one of which would
give an officer compensation for hla services in addi-
tion to his salary and the other not, the latter con-
structlon should be adopted. It la no concern of an
officer that the Legislature may have been toward
other offlaers more liberal than toward him in the
matter of compensation for services; nor does this
fact justify the courts in upholding his claim SOP com-
pensation for services as against a fair and reasonable
Interpretation of the statute. In applying these
statutes and ascertaining the Intent of the Legls-
lature in the meaning of the statute, the usual
methoda and rules of interpretation are applicable.@'
34 Tex. Jur., Sec. 107, p. 511, la in p&t as follows:
"An officer may not claim or reach any money
without a law authorizing him to do so, and clearly
fixing the amount to which he Is entitled."
As hereinabove set forth, no provision Is made for the
payment of a jury fee, yet said Act provides that any person
interested in any such ease may appear therein and demand a
jury aa in other cases, or that the Judge of the court, of his
own motion, may order a jury to try such case.
Article 2123 of said statute provides as follows:
"The right to trial by jury shall remain
invlolate, subject to the following rules and
regulatlons.n
One of the regulations following the above Article is
that application shall be made In open court SOP a jury and cer-
tain fees be paid In the district and county courts, but no pro-
vision is made in the Juvenile Court Act for the payment of a
jury fee, though a jury may be demanded or provided for, as
above set forth. Article 2122 provides that a juror in a
dlstrlct or county court or county court at law shall receive
certain compensation for his services, but there is no provision
for the payment of a juror under the Juvenile Court Act; there-
fore, said jurors must serve without compensation.
Hon. H. C. Petry, page 8 (O-6877)
For your further InformatIon we enclose herewith copies
of our Opinions Nos. 0-5602 and O-6461.
Yours very truly,
ATTORNEY
GENERALOF TEXAS
By /a/ Jaa. Ii. Baaaett
Jas. W. Bassett
APPROVEDOCT 25 1945 Asalstant
/a/ Grover Sellers
Attorney General of Texas
JWB:LJ:B
encls.
APPROVED
OPINION
COMMITTEE
Bs BWB
Chairman