Untitled Texas Attorney General Opinion

.- ‘-, . 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