Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
honorable Den J. Dean
District ntt;orney
Ereckenridge, Texas
Dear Sir:
Your reoent letter
partment on the follovlng
be a delln-
ju%ge% against
the Court Reporter
minor for a trans-
atement of facts in the
e absence of a pauper’s
tlon of the Juvenile Delinquency Act,
slature (1943), page 313; tirticle2338-
Statutes, 1925, as amended, discloses no
t dealing vlth costs where a child is ad-
judged a delfiquent child. I!heAct does not contain any
provision for ihe awarding or payment of costs. Delinquency
proceedings under the statute are not criminal prosecutions --
it Is a civil procedure and appeals are to the Court of Civil
Appeals and to the Supreme Court.
The Rules of Practice and Procedure in Civil Actions
promulgated by the Supreme Court of the State are not appli-
cable in delinquency proceedings. Rule 2 in part provides:
Honorable Ben J. Dean, psge 2
"These rules shall govern procedure in the
justice, county, district and appellate courts
of the State of Texas In all actions of a civil
nature, . . .’
Now, the Juvenile iict sets up and establishes a
new and distinct court, naming this court the Juvenile Court;
and provides that such court be established in each county
of the State and that It be a court of record, "having such
jurisdiction as may be necessary to carr out the p~ovlsfons
of this Act." (article 2338-1, Section 1 ).
In In Re Dendy (1943), 175 9. W. (2%) 297, the
~marf.110Court of Civil Appeals at page 302, said:
"The &t sets up a complete jurisdiction
and proce%ure POP the hearing of juvenile delln-
quency cases and there is no other law, civil or
criminal, togovern such cases and situatlons as
defined by the Act and placed within the exclu-
sive jurisdiction of the juvenile court provided
fcr in this tict. Nowhere does the Act provide
that either criminal or civil procedure shall be
folloved."
Now, Section 21 of the Juvenlle Act provides that;
'An 8pp8al may be taken by any party ag-
grieved to the Court of Clvll Appeals, an% the
case may be carried to the Supreme Court by writ
of error JF upon certificate, as in other civil
cases. Vritten notice of appeal shall be file%
with-the Juvenile Court uithln Plve (5) days af-
ter the entering of the order . . .(and in event
of adverse judgment) the appellate court milypro-
vide for a ?ecognimsnca bond.' (Underscoring
ours)
The right to oosts as of course is purely statu-
Honorable Ben J1 Dean, page 3
Security for costs must be given In causes or pro-
ceedings falling within the requirement of controlling stat-
ute?, .but they need not be given in causes or proceedings be-
yond the &ope of such mandatory requirements, and under some
provielons the matter vi11 rest in the sound dlscretlon of
the court. Costs, 20 C. J. S., 364, para. 126.
It has been held that in the absence of a statu-
tory provision costs cannot be awarded in a proceeding in the
uvenile courts; Juvenile Courts and Offenders, 71~m. Jur.,
$06, para. 45, note 9; Infants, 31 C. J.ITIb , pra. 24, note
.39.
In an annotation on “Wnat is an action vlthin the
statutes requiring security for costs ” 131 A. 1. R. 1476,
there is cited Noble vs. People (18771, 85 Ill. 336, vhereln
it vas held that a statute requiring of non-residents a bond
for costs was not applicable in bastardy proceedings by the
mother against the putative father to compel him to bear part
of the burden of the support of the child.
In the case of Pierce County vs. Hagnuaon (1912)
70 Wash. 639, 127 P. 302, an. Cas. 1914b, page 869, the
Supreme Court of Uashihgton, in discussing the question of
costs under the Juvenile Court Act of that state, said:
“The juvenile court act makes no provision
for the awarding or payment of costs, exeapt the
pr~vislon authorlxlng the publication of notioe
when the person standing in the position of nat-
ural or legal guardian of the person of the al-
leged delinquent child Is a non-resident, cr the
Uhereabouts of such person 1s unknown. In 3ases
of such publication of notice, It is provided
that the coat of such publication shsll be paid
by t.hecounty. another section provides for the
payment by the cojmtg of salaries to probation
officers. OtherwIse the set la silent OR the
question of Sees and cnstu. The awarding and
payment OS costs 1s purtl:Iy
a matter of statutory
regulation. The recover;iof oosts was unknovn
to the common law, and no provision could be made
for their payment, except as expressly authorized
Honorable Ben J. Dean, page 4
by statute. This rule has been one of such uni-
versal appllcatlon that It has become the simple
doctrine of the court that coats are the creature
of statutes merely, and that the allowance of
them in any case would depend entirely upon the
terms of some statute. It has also been held that
there la no inherent pover in the court to award
coata, and that they can be granted in any case
or proceeding ac$ely by virtue of express atatu-
tory authority.
Continuing, the Supreme Court of the State of
Washington, said:
‘The doctrine that costs cannot be avarded
except as provided by statute, applies to crlmln-
al as veil aa civil cases. In this respect the
character of the proceedings creates no diatlnc-
tion. In state v. Blackburn, 61nrk. 407, 33
3. W. 529, where it vas sought to charge the
county with coats in a baatardy proceeding, the
court, after laying down the rules that the lls-
bility of county for costs In orlmlnal prosecu-
tions rest alone on the statute, aoncludea by
saying L ‘Cur aonclualon is that QO one la bound
for coats, unless rendered so by some positive
provision of law, or aa 0 neoeaaary lmpliortlon
from provtalon of lavj and that neither the state
nor the county la bound even by legal provlslona,
unless it is speclSicAlfy or by necessary lmpll-
cation named or referred to therein.’ This rule
is supported by the Sollowing oases, and seema
to be generally aoctpted as 8 true rule: . ...”
(The court here cited numerous supporting decl-
alona.)
With further reference to the Dendy case, by the
fimarllloCourt of Civil Appeals It will be noted that the
Supreme Court on January 12, 1944, granted a vrlt of error
in the case “on oonatructlon of the act.” It ia set for sub-
mission for February 2, 1944.
me vish to again refer to section 21, Article 2338-
1, wherein the Juvenile Delinquenoy Act provides that:
~Ronorable Ban J. Dean, page 5
“hn appeal may be taken by any psrty ag-
grieved to the Court of Civil wppeals and the
case may be carried to the Supreme Court --, ”
in other civil cases." (Underscoring ours)
Though the Juvenile Delinquency ret set up a com-
plete prooedure for the hearing of juvenile delinquency 0894s
In the trial court, I. e., in the juvenile oourt of the ooun-
m, when the oaae is appealed to the Appellate court then
the rules and the prooedural law provided for the appellate
courts prevail (exodpt as to the giving of a bond, unless a
recognizance bond be requested); 48 Section 21 of ths Act pro-
vides for an appeal “as in other clvll oaaea.” Thus, vhen
a case la appealed then insofar as the appellate procedure
is conoern4d, the Rules of Praotloe and Procedure in Civil
wctiona promulgated by the Supreme Court aa well as the per-
tinent statutory provisions prevail.
Rule 355 provides for an appeul by a pzrty unable
to givs a coat bond and unless the aggrieved party complies
with Rule 355 and files his pauper's affidavit, then he oan
perfect his appeal solely in the abaDgerprovided for “as in
other clvll cases.”
To the first question we answer, 'NO."
To the second question we answer, “No.”
To the third question we answer as follows:
(a) That th4 district clerk is not entitled to de-
mand paymsnt of Sees as z condition precedent to delivery of
transcript for tranamlasioa to ..ppellateCourt.
(b) That tha court reporter has a Fight to require
payment of fees aa a condition precedent to the delivery of
transcript of evidence or statement of facts for trznsmla-
sion to the Appellate Court, vhere an appeal is not perfect-
ed In forms pauperir.
The case of Maxfield v. The Pure Oil Compeny (1934),
74 3. w. (213)145, by the Dsllas Court of Civil Appeals, is
our 4uthOFity for our answers to the third question.
Fry v. Henrietta Independent School District (1X56), 9x811::
2
Honorable Ben J. Dean, page 6
(2d) 245, the Fort Worth Court of Civil Appeals held: “that
the adminlatrator must pay for the transcript of the evl-
dence .re&ardless of the fact that he Is not required to give
a bond on appeal.n
The present rules of civil procedure do not con-
flict with the authorities cited. These rules, though super-
seding the statutes are taken practically unchanged from the
pertinent statutes. Rule 378 provides for an agreed statement
of the case aad of the facts proven and Rule 380 provides
for a free statement of facts on appeal for paupers. ns here-
inabove stated, these rules do not altar the authorities
above cited for the Rules in this instance did not change
the statute upon which these authorities were based.
Very truly yours
ATTORIQM GENERAL OF TEXAS