Untitled Texas Attorney General Opinion ( 1972 )

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TIIE L~TNBRNICY GENERAL
OF TEXAS
Honorable Ned Granger Opinion No. M-1161
County Attorney
Travis County Courthouse Re: Whether the Comptroller of
P. 0. Box 1748 Public Accounts is author-
Austin, Texas 78767 ized and/or required to pay
court costs incurred by the
State while prosecuting
cases in Travis County courts
even though the Governor,
exercising his legislative
function, has vetoed the
court cost appropriation
of the Attorney General's
Office for the current
Dear Mr. Granger: ye~ar .
We quote the following excerpt from your letter requesting
an Opinion of this Office on the above captioned matter:
II The Court cost appropriation of the
Attorney General's office for the current
year was vetoed by the Governor . . . D
,,
. a . the Comptroller of Public Accounts
refuses to reimburse Travis County for the
large amount of court costs for State cases
which have accumulated since the beginning
of this fiscal year (now over $32,OOO).
"It would appear that the Comptroller defi-
nitely has such authority. On page 111-36,
Section 17 of the Comptroller of Public
Accounts' appropriation there is an appro-
priation of over $3,000,0001 for 'Consumable
L/ $3,698.090 is the exact amount appropriated for fiscal
year 1971.
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Honorable Ned Granger, Page 2 (M-1161)
supplies and materials, current and recurring
operating expense and capital outlay. I On
page III-39 of this appropriation, it is
stated: “‘Consumable ~supplies and materials,
current and recurring operating expense and
capital outlay” shall, include expenses for
tax enforcement purposes, court costs, . . . I”
At the outset, we have assumed that the court costs in
question were incurred in tax suits instituted by the Attorney
General at the request of and on behalf of the Comptroller of
Public Accounts ~ This we do because the law is well settled
that an appropriation for a given purpose is valid only If
made in pursuance of a valid statute. We d em it unnecessary
to enumerate the various State t,ax statutes 5 which impose the
duty of enforcing and collecting State taxes upon the Comptroller
and require the Attorney General to bring suit when necessary
for such enforcement and collection.
It is true that the situation which you have presented
by your request is unique in Texas history in that never before
has a Governor of this State vetoed in toto a court costs item
in the general appropriation for the Attorney General’s Office;
and that but for such veto, the payment of the court costs in
question would also be authorized under this vetoed item. How-
ever, the Legislature additionally authorized payment of the
costs in question by including “court costs” in the above
quoted portion of the general appropriation for the Comptroller’s
Department ~
The Comptroller of Public Accounts has a mandatory duty
to coll.ect delinquent taxes, and those which require court
action are collected by the filing of suits by the Attorney
General of Texas at t,he specific request of the Comptroller.
‘/ Vol. 20A, Taxation-General, V.A.C.S.
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Honorable Ned Granger, Page 3 (M-1161)
A necessary incident to the filing and disposition of any
suit by the State of Texas as a plaintiff is that the State
cast off its robes of sovereign immunity and stand in court
as any other party or litigant.3 As a party to a civil suit,
the State of Texas is liable for the cosbs taxed against it
as would be any other party to the suit. The Texas Rules
of Civil Procedure, Nos. 125 and 127, requir.ing that the
parties pay the court coats ta ed against them, have the same
force and effect as a statute. 3 And while no security for
costs6 is required of the State,, this does not lessen the
duty of the State as a plaintiff to pay its costs where
the costs are taxed against it.
The situation here presented is one, where court costs
would have been payable out of either the Attorney General’s
funds or those of the Comptroller, but for the Governor’s veto
52 Tex.Jur.2d, State of Texas, Section 58, page 777;
255 S.W.2d 927 Tex.Civ.App.
185 S.W.2d 993 Tex.Civ.App.
Rules i25 and’127 (T&as RulLs of Civil Proceduri; Dupree
v. State, 107 S.W. 926 (Tex.Civ.App. 1908, no writ hist.)
Ekone v. State, 107 S.W. 927 (Tex.Civ.App. 1908, no writ
b=;$$d v. State, 78 S.W.2d 254 (Tex.Civ.App. 1934,
. 0
Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (Tex.Sup.
mP=rI Assur. Co. v. Williams, 167 S.W.2d 808 (Tex.
Civ .Appm3, no wr???h%?t,)
Art. 2072, V.C.S.
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Honorable Ned Granger, page 4 (M-1161)
of the Attorney General's court cost item, and the veto of the
one by the Governor did not prevent the payment of court costs
by the administrative agency, the Comptroller in this in-
stance. Attorney General's Opinion No. M-1105 (1972).
It is the opinion of this office that payment of court
costs due Travis County for the filing of delinquent tax suits
could and should be paid by the Comptroller if he has sufficient
unencumbered funds in his appropriation to pay such costs.
You are therefore advised that it is the opinion of this
Office that the Comptroller should pay court costs incurred bg
the Attorney General in State tax cases from funds appropriated
to his Department by Item 17 of the current General Appropriation
Act.
SUMMARY
The Comptroller of Public Accounts is au-
thorized, and it is his duty, to pay court costs
for State tax case~s prasecu~ted by the Attorney
General at the request of the Comptroller, such
payment to be made under Item 17, ch. III, p.
36 of the current General Appropriation Act,
or other appropriate fund.
very truly,
Prepared by John R. Grace
Assistant Attorney General
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Honorable Ned Granger, page 5 (M-1161)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James Quick
Roger Tyler
Gordon Cass
Bill Campbell
John Banks
SAMUELD. MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant
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