Untitled Texas Attorney General Opinion ( 2003 )

OFFICE ofthe ATTORNEY GENERAL
GREG ABBOTT
January 29,2003
The Honorable Jose Rodriguez Opinion No. GA-00 17
El Paso County Attorney
500 East San Antonio, Room 203 Re: Whether, in a proceeding under the Juvenile
El Paso, Texas 79901 Justice Code, title 3 of the Family Code, the state
may recover from a child or other nonprevailing
party the cost of serving summonses under section
53.06 of the Family Code (RQ-0583-JC)
Dear Mr. Rodriguez:
Rule 13 1 of the Texas Rules of Civil Procedure, which applies generally to a proceeding
under the Juvenile Justice Code, title 3 of the Family Code, entitles a prevailing party to recover
costs from his or her adversary. TEX. R. CIV. P. 13 1. Similarly, section 3 1.007 of the Civil Practice
and Remedies Code, which also applies generally to a proceeding under the Juvenile Justice Code,
see Tex. Att’y Gen. Op. No. DM-411 (1996) at 2, authorizes a judge to order a nonprevailing
party to pay costs, including “service fees due the county.” TEX. CIV. PRAC. & REM. CODE ANN.
8 31.007(b)(l) (V emon 1997). You ask “whether the state may recover the cost of serving a
summons in a Juvenile Justice Code proceeding from a non-prevailing child or other non-prevailing
party under Texas Rule of Civil Procedure 13 1.“I
We presume that you do not ask about costs associated with serving a subpoena on a witness
in a Juvenile Justice Code proceeding. See Smith v. Rankin, 661 S.W.2d 152, 154 (Tex.
App.-Houston [ 1st Dist.] 1983, no writ) (requiring juvenile to pay subpoena fee to produce witnesses
violates juvenile’s constitutional rights). Further, by the term “non-prevailing child,” we assume that
you refer to a child who is adjudged to have committed delinquent conduct or conduct indicating a
need for supervision. By the term “other non-prevailing party,” we assume that you refer to any
other person who is issued a summons under section 53.06(a) of the Family Code. See TEX. FAM.
CODE ANN. 6 53.06(a) (Vernon 2002).
The Juvenile Justice Code applies to a proceeding adjudicating conduct alleged to be
“delinquent . . . or . . . indicating a need for supervision engaged in by a person who was a
‘Letter from Honorable Jo& R. Rodriguez, El Paso County Attorney, to Honorable John Comyn, Texas
Attorney General (July 30, 2002) (on file with Opinion Committee) [hereinafter Request Letter].
An Equal Employment Opportunity Employrr Printed on Recycled Paper
The Honorable Jose Rodriguez - Page 2 (GA-0017)
child . . . at the time the person engaged in the conduct.” Id. 0 51.04(a); see id. 8 51.03 (defining
“delinquent conduct” and “conduct indicating a need for supervision”). Generally, a county juvenile
court has “exclusive jurisdiction” over proceedings under the Juvenile Justice Code. Id. 5 5 1.04(a).
But see id. 5 51.04(h) (p roviding juvenile court with concurrent, not exclusive, jurisdiction over
certain conduct).
Prior to an adjudication hearing, a juvenile court must sunrmon certain persons:
The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition;
(2) the child’s parent, guardian, or custodian;
(3) the child’s guardian ad litem; and
(4) any other person who appears to the court to be a proper
or necessary party to the proceeding.
Id. 5 53.06(a). A summons must inform the named person of the petition and must order the person
to appear before the juvenile court at a particular time for the hearing. See id. fj 53.06(b);
In re Franks v. State, 498 S.W.2d 516,5 18 (Tex. Civ. App.-Texarkana 1973, no writ) (stating that
written summons must include hearing time and place, must order certain persons to appear before
court, and must include copy of petition or petition’s allegations). And a named person who is in
the state and can be found must be personally served at least two days before the adjudication
hearing. See TEX. FAM. CODE ANN. 8 53.07(a) (V emon 2002). In other circumstances, the person
may be served by mail. See id. Costs of serving the summons may be paid from the county’s
general funds. See id. 8 53.07(d).
Although county funds may be used to pay service costs, see id., you ask in essence whether,
assuming the state prevails in the juvenile action, the juvenile-court judge may order a nonprevailing
child or other nonprevailing party to reimburse the county for the costs. See Request Letter, supra
note 1, at 1. Because both the Texas Rules of Civil Procedure and the Texas Civil Practice and
Remedies Code contemplate that a nonprevailing party whose interests are adverse to the state’s may
be ordered to reimburse service costs, we conclude that the judge may issue such an order when the
state prevails.
Rule 13 1 of the Texas Rules of Civil Procedure allocates costs against a nonprevailing party
at the conclusion of a civil proceeding: “The successful party to a suit shall recover of his adversary
all costs incurred therein, except where otherwise provided.” TEX.R. CIV. P. 13 1. The Texas Rules
of Civil Procedure generally govern proceedings under the Juvenile Justice Code unless they
conflict with a Juvenile Justice Code provision. See TEX. FAM. CODE ANN. 0 5 1.17(a) (Vernon
2002); In re SAM., 933 S.W.2d 744,745 (Tex. App.-San Antonio 1996, no writ) (stating that rules
of civil procedure govern juvenile proceeding). Rule 13 1 ‘s cost provisions do not conflict with the
The Honorable Jose Rodriguez - Page 3 (GA-0017)
Juvenile Justice Code’s cost provisions: Section 53.07 of the Family Code, which permits a court
to “authorize payment from” a county’s general fund “of the costs of service,” pertains only to the
initial payment of service fees and does not refer to possible reimbursement to the county. See TEX.
FAM. CODE ANN. 9 53.07(d) (Vernon 2002).
Section 31.007 of the Civil Practice and Remedies Code similarly authorizes a court to
require a nonprevailing party, including a child or other party adverse to the state in an action under
the Juvenile Justice Code, to repay the county the amount it expended for service fees under section
53.07(d) of the Family Code. See TEX. CIV. PRAC.& REM. CODE 8 31.007(b)(l) (Vernon 1997);
TEX. FAN. CODE ANN. 8 53.07(d) (Vernon 2002). Section 3 1.007 authorizes a judge to allocate costs
“in any order or judgment,” including “service fees due the county.” TEX. CIV. PRAC.& REM. CODE
ANN. 8 3 1.007(a) (V emon 1997). Section 3 1.007 applies to a Juvenile Justice Code proceeding. See
Tex. Att’y Gen. Op. No. DM-411 (1996) at 2 (determining that juvenile-detention hearing under
Juvenile Justice Code is civil proceeding and subject to Civil Practice and Remedies Code).
We do not find support for the proposition that a court may require a person who is issued
a summons under section 53.06(a) of the Family Code to reimburse the state’s service costs unless
the person is subject to an order issued under section 54.041 of the Family Code. Section 54.041
authorizes a court, in certain circumstances, to issue an order affecting parents or other parties to an
action involving a child who has been found to have engaged in conduct that is delinquent or that
indicates a need for supervision. See TEX. FAM. CODEANN. 9 54.041 (Vernon 2002). Rule 131
indicates that only an “adversary” must reimburse the successful party’s costs. See TEX. R. CIV. P.
131; c. City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex. App.-Amarillo 1997, pet. denied)
(stating that “prevailing party is one” whom court judgment vindicates). Section 3 1.007 of the Civil
Practice and Remedies Code pertains to a “party to a suit.” TEX. CIV. PRAC.& REM. CODE ANN.
5 31.007(a) (V emon 1997). A “party” is “one by or against whom a suit is brought.” Brown v.
Fullenweider, 7 S.W.3d 333,335 (Tex. App.-Beaumont 1999), rev’d on other grounds, 52 S.W.3d
169 (Tex. 2001) (per curiam). See generally S. Sur. Co. v. Arter, 44 S.W.2d 913, 914-15 (Tex.
Cornm’n App. 1932, judgm’t adopted) (canvassing judicial definitions of term “party”). In the
context of a proceeding under the Juvenile Justice Code, we believe only a person who is a
nonprevailing child or who is subject to an order under section 54.041 can be said to be an
“adversary” of the state or a “party” to the action.
The Honorable Jose Rodriguez - Page 4 (GA-0017)
SUMMARY
A court may order any nonprevailing party to pay the costs
incurred in issuing summons to various parties under section 53.06 of
the Family Code. See TEX. FAM. CODE ANN. 6 53.06(a) (Vernon
2002); TEX. CIV. PRAC. & REM. CODE 8 31.007(a) (Vernon 1997);
TEX. R. CIV. P. 131. A court may order a nonprevailing party,
including a parent, guardian, custodian, guardian ad litem, or other
necessary party to pay the service costs if the person is subject to an
order under section 54.041 of the Family Code. See TEX.FAM. CODE
ANN. 8 54.041 (Vernon 2002).
Very truly yours,
eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Deputy Attorney General - General Counsel
RICK GILPJN
Deputy Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Cornmittee