Untitled Texas Attorney General Opinion ( 1958 )

ORNEY GENERAL TEXAS Honorable Ramie H. Griffin Criminal District Attorney County Courthouse Jefferson County Beaumont, Texas Opinion No. ww-512 Re: Can a Plaintiff who makes a costs deposit pursuant to Rule 146, Texas Rules of Civil Procedure, and later prevails In the trial of his case with all costs as- sessed against the Defendant from whom the District Clerk cannot collect said costs, recover his costs deposit? If so, what recourse does the District Clerk have in the event portions of the deposit have been paid Into the County Treasury? Dear Mr. Griffin:- Your recent request foran opinion from this office sets out two questions. They are as follows: 1. Where the Plaintiff In a civil suit has made a costs deposit with the District Clerk pursuant to Rule 146, Texas Rules of Civil Procedure, and upon trial of the cause judgment Is rendered In favor of Plaintiff with all costs assessed against Defendant, and the District Clerk 1s unable to collect such costs from the Defendant, can the Plaln- tiff recover the costs deposit? 2. If Plaintiff can recover the costs deposit under the clrcumstanoes outlined above, what recourse has the District Clerk in the event portions of,the deposit have been paid into the County Treasury? - . Honorable Ramle H. Griffin, Page 2, (W-512) Several Texas Rules of Civil Procedure set out each party's responsibility for court costs. They are as follows: "Rule 125. Parties Responsible. Each party to a suit shall be liable to the officers of the Court for all costs incurred by himself. ",Rule127. Parties Liable for Other Coats. Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may Issue against any party In such suit for the amount of costs ln- curred by such.party, but no more. "Rule 142. Security for Costs. The clerk may require,from the.plaintiff security for costs before Issuing any process, but shall file the petition and enter the same on the docket . . . . "Rule 143. Rule for Costs. The plaintiff ma,ybe ruled to.glve security for costs at any time before final judgment, upon motion of the defendant or any officer of the court interested in the costs accruing in such suit . . . . "Rule 146. Deposit for Costs. D-llieu of a bond for costs, the party required to give then same may deposit with the clerk of court or the justice of the peace such sum,asthe court or justice from time to time may:deslgnate as suf- ficient to pay the accrued costs. 'Rule 149. When costs have been adjudged against a party and are not paid, the clerk or justice of the court in which the suit was de- termined may Issue execution, accompanied by an Itemized bill of costs, against such party to be levied and collected as in.other.caees; and said officer, on demand,of any party to whom any such costs are due, shall,issue execution for costs at once. . . .)t The rules are clear. Each party is responsible to the Court for the costs Incurred by him,in any civil suit. A deposit or bond~may be required of each party``to, Insure payment Honorable Ramle H. Griffin, Page 3, (WW-512) of these costs. Assessment can be made agalnst the required depOBit or bond for two purposes. First, the losing party maybe assessed all costs of the suit. The bond or deposit may be levied against for these oosts. Secondly, if the costs cannot be collected by the ,Courtfrom the party agalnstwhomthey amc assessed* then the prevailing party Isliable for those costs incurred by hti, but he Is liable for no more. , we quote from DOSS, et al; Y. Chambers; et al., 188 s.bl.296, Clv.App. 1916, no writ history: "The genernl rule In ,clvll,casesla that, when an appellant obtains ,a judg- ment in the appellate court, deciding the' case on its merits in his favor, he tiso obtains a judgment against his adversary for all the costs; but, PI no costs CM be collected from the adverse party, he is liable to the ~mfflcess of the several. courts for the costs incurred by him." It is the opinion of this office, that nhen the Plalntiff in a civil suit has made a costs deposit aulththe District Clerk pursuant to Bule 146, Texas Rules of Civil Procedure, and judgment Is rendered in his favorwith De- fendant being assessed ,a11 costs, Plaintiff is entitled to recover hiscosts deposit. When, as in the instant case, costs cannot be collected from the party against wfiomthey have been assessed, the Plaintiff Is liable to the Court for 'those costsincurred by him. After his costs hav.ebeen de- dueted he, is entitled to recove~rthe rema%nd,erof the deposit. A~ttorneyGeneral's Opinion O-4948 (1942) spoke re- garding questions related to those propounded by you. That opinion described the funds collected by county offlelals, ineluding court costs deposits collected by the District Clerk, as trust funds. We sub,scribeto that ,view. Orme the amount of the excess costs deposit has been established, that is suf- ficient to constitute a legitimate claim against the county In that ,amount. Therefore, it is our opinion that in the event portions of the deposit have been paid into the County Treasury, the Pls- trlct Clerk's recourse would be to present his claim for the . Honorable Ramie H. Griffin, Page 4, (W-512) excess amountof the deposit against the County. In doing this, the District Clerk would follow those procedura1,rule.swhich have been adopted by the Commissioner's Court in the county wherein the,clalm is being presented. SUMMARY Where the Plaintiff in a civil suit has made a costs,deposlt with the District Clerk pursuant to Rule 146, Texas Rules of Civil Procedure, and up- on trial of the cause judgment is render- ed In favor of Plaintiff with all costs assessed against Defendant, and the Dls- trict Clerk is unable to collect such costs from the Defendant, the Plalntlff can re- cover the costs deposit after those costs accruing to him have been deducted. In the event portions of the deposit have been paid into the County Treasury,, the District Clerk9 recourse would be to present his claim against the County according to the rules of,procedure which have been adopted by the Commissioner's Court In the County where the claim is presented. Very truly yours, WILL WILSON ATTORNEY GENERAL OF TEXAS &d BY:+ Byron Fullerton BF:,bb Assistant APPROVED OPINION COMMITTEE Geo. P. Blackburn, Chairman Milton Richardson Morgan Nesbitt Leon Pesek Clyde Kennelly REVIEWED FOR THE ATTORNEY GENERAL BY: w. v. GEPPERT