.- ‘-,
. a-
Department of Public Safety
Camp Mabry
Austin, Texas
Attention: Mr. L. G. Deats
11';'~
Opinion No. O-3404
Re: Should the Department of
Public Safety forward to
the Comptroller of Public
Accounts a voucher for the
issuance of a warrant in
payment of the bill of
costs where destruction
orders were granted on
Gentlemen: gambling paraphernalia?
Your recent request for an opinion of this depart-
ment on the above stated question has been received,
We quote from your letter as follows:
"I am attaching hereto the copy of a letter
addressed by the County Clerk of Bexar County to
Honorable Geo. H. Sheppard, State Comptroller of
Public Accounts, relative to Bill of Costs in
Cause No. 31,089, Civil Docket County Co,urt at
Law MO. 2, Bexar County, together with a copy of
Mr. Sheppard's letter in reply thereto and a
copy of the Bill of Costs.
"Heretofore, this Department has not paid
the costs where destruction orders were granted
on gambling paraphernalia confiscated by officers
of this Department.
1. "I would appreciate your advice as to
whether or not this Department should forward to
the Comptroller of Public Accounts a voucher for
the issuance of a warrant in payment of such
bill of costs.'
The letters mentioned in your inq'uiryfrom the
County Clerk of Bexar County to Honorable Geo. H. Sheppard
Department of Public Safety, page 2 (o-3404)
and his reply thereto read as follows:
"We are enclosing herewith three certi-
fied copies of Bill of Costs in cause No. 31,089,
styled The State of Texas - vs - Gambling Para-
phernalia, civil docket of the County Court at
Law No. 2, of Bexar County. For your further
information, this case was filed by Mr. R. R.
Rohatsch, of the State Rangers.
"Final judgment, granting destr,uctionin
this cause was ordered on November gth, 1940.
"We are endeavoring to clear our books of
all unpaid costs wherein no deposit has been
made before the end of the year, therefore we
shall greatly appreciate your negotiable war-
rant for these costs at your earliest conven-
ience."
"I am referring your-letter of December
the 7th to Homer Garrison, Director, Texas De-
partment of Public Safety. I am sure he will
advise you as to what disposition will be made
of your Bill of Costs."
The above mentioned proceeding to sec'urean order
to destroy certain gambling paraphernalia was instituted by
a Texas Ranger by virtue of Article 633, 636 and 637 of
Vernon's Annotated Penal Code. It is not specifically
stated in the above quoted letters that the costs in the
proceeding was taxed against the State. The State is bound
by judgments and actions to which it is a party to the same
extent as a private suitor, tho~ughthe judgment may be in
rem. (State vs. Cloudt, 84 S-W, 415, error refused). It
has been broadly stated that costs may not be taxed against
the State in the absence of a statute so providing, and this
appears to be the general rule in other jurisdictions. In
Texas it has been the uniform custom to tax costs against
the State asagainst any other suitor. We quote from the
case of Reed, et al, vs, State, 78 S.W. (2d) 254, as follows:
"The unpaid costs in said case were taxed
against the state. No contention is made that
such costs are unreasonable nor that they were
not authorized. The Attorney by cross-assignment
contends, however, that no authority exists in
law for taxing costs againstthe state, whether
it be plaintiff or defendant, or whether it be
Department of Public Safety, page~3 (O-3404) :
successful or not. That se,emsto,.be the,:con-I,,
elusion reached by the Ed Paso Court of 'Civi~l
Appealsin Pope V. State; 5&S,,W, (2d) ,492,
following the general rule announced in 59 C. J.
332, and 25 R. C. L. 418. It has been the uni-
form custom, how:ever,where the state has been
a proper party to a suit, to tax costs against
itas~ against any.,otherlitigant.:,Necessarily,~.:,:,,
payment thereof must await appropriations of
funds for that p'urposeby the Legislature, but.
such appropriations have habitually been made
by each,Legis.lature'
for many years. Theright,
and.propriety of taxing such costs aga~instthe,. ,!
state as a party litigant is, we think, conclu-
sively foreclosed by the Supreme Court in Houtch-m ;~
ens v. State, 74 ,S.W, (2d) 976; that being an
opinion on motion to tax the costs against the
state and the only issued there presented.
"The general rule is that, when the state
enters the courts as a litigant, It places itself
on the same basis as any other litigant, While
granted immunities not available to litigants
generally, e. g., the right to be sued only with
its consent, not req,uiredto give bond, freedom
from execution against it, etc., with the ever-
increasing number of s'uitsto which the state
Is a party, frequently upon its initiative, It
would be a harsh rule to say that the officers
of the co'urtsho,uldbe compelled to render to
the state without compensation indispensable
services, no matter how onero'usthey might be."
Under the heading of maintenance and IdSC~llaneOUS
in the~appropriation for the Department of Public Safety as
shown on page 187 of the Special Laws of the State of Texas
passed by the regular session of the 46th Legislature, it iS
provided "expenses of Director enforcing laws, making in-
vestigations, and to employ men other than Rangers and
narcotic inspectors when necessary, $5000 for the year ending
August 31, 1940, and $5000 for the year ending August 31,
1941"
The bill of costs attached to your inquiry shows
the amount of costs due to be $4.40. Under the facts stated
we cannot categorically answer your inquiry, however, if the
court has taxed such costs against the state, the above
stated question is respectfully answered in the affirmative,
Department of Public Safety, page 4 (O-3404)
otherwise, in the negative.
Trusting that the foregoing fully answers your
inquiry,we are
Yours very truly
APPROVED API325, 1941 ATJYORNEYGEXEEAL OF TEXAS
(Signed) Grover Sellers
BY
FIRST ASSISTANT (Signed) Ardell Williams
A!F?ORNEYGENERAL Assistant
AWzlh:mj
APPROVED
OPINION
COMMITrEE
BY /s,/BKB
Chairman