Untitled Texas Attorney General Opinion ( 1940 )

Honorable Bert Ford, Administrator
Texas Liquor Contorl Board
Austin, Texas
Dear Sir: Opinion No. O-2724
Be: Authority of,Texas Liquor Control
Board to pay court costs in lnjunc-
tlon suits.
Your request for opinion has been received and care-
fully considered by this department. We quote from your let-
ter of request as follows:
"As you are no doubt aware, this Board fre-
quently calls upon your office to file injunction
suits to restraln offenders against the State
Liquor Law from further violations and, where
circumstances warrant, to padlock affected prem-
ises. These suits are all, of course, brought
under the provisions of the Texas Liquor Control
Act, Sections 29 and 42, Article I, and Section
27, Article II.
"Instances have arisen where the State has
succeded in obtalnlng permanent injunottons and
costs in the cases assessed against defendants
who have been unable to pay such costs. This
situation has brought about conslderablc complaint
on the part of local officers as to the practice
of the State in filing these InjunctFve proceedings
without guarantee of costs and has proven a decid-
ed handicap in the prosecution of cases In various
sectFons of the State.
'We have an appropriation included in our
current budget providing for court costs and wit-
ness fees, which lt was anticipated would be re-
quired in the prosecution of these suits. The
prosecution of injunction suits Is an extremely
important function and vital to the enforcement
of~the Texas Liquor Control Act. In those in-
stances where it is impossible to collect the
costs from the defendants It Is desired to pay
such costs from our available appropriation, in
Honorable Bert Ford, Administrator, page 2 O-2724
order to facilitate the ready prosecution of
these types of cases.
"Your opinion is respectfully requested as
to whether the Board has legal authorltg to
guarantee and to pay locally uncollectible court
costs In these injunction suits."
Section 29 of Article 666, Vernon's Annotated
Texas Penal Code, reads as follows:
"Any room, building, boat, structure, or
place of any kind where liquor is sold, manufac-
tured, bartered, or given away In violation of
this Act, or of any rule, or regulation of the
Board, or where persons are permitted to resort
for the purpose of drinking liquor in violation
of the law, or any place where such beverages
are kept for sale, barter, or gift in violation
of law, and all liquor and all property kept and
used in said place, hereby are declared to be a
common nuisance and any person who maintains
or assists in maintaining such common nuisances,
shall be guilty of a violation of this Act. Any
county, or district attorney, or the Board, or
any agent or employee of thI.aBoard in the
county where such nuisance exists, or is kept,
or maintained, may maintain an action by injunc-
tion in the name of the State, or the Board to
abate and to temporarily and permanently enjoin
such nuisances. Such proceedings shall be guided
by the rules of other injunction proceedings, ex-
cept that the plalntiff shall not be required to
give bond in such action and upon final judgment
against the defendant the Court shall order that
said room, house, building, structure, boat,
or place of any kind shall be closed for a
period of one year, or closed for a part of said
time and until the owner, lessee, tenant, or
occupant thereof shall give bond with sufficient
surety, to be approved by the Court making th8
order, in the penal sum of not less than One
Thousand Dollars ($1,000) payable to the State,
and conditioned that liquor will not thereafter
be manufactured, possessed, sold, bartered, or
given away, or furnished, or otherwise dFsposed
of therein, or kept thereon, or therein, with the
intent to sell, barter, or give away, or other-
wise dispose of same contrary to law, and that
he will pay all fines, costs, and damages assessed
Honorable Bert Ford, Administrator, page 3 O-2724
against him for any violation of this Act. If any
conditions of such bona be violated the whole a-
mount may be recovered as a penalty for the use of
the county wherein the premises are situated."
Section 27 of Article 667, Vernon's Annotated Texas
Penal code, reads as follows:
"Upon having called to his attention by
affidavit of any credible person that any person
is violating, or is about to violate, any of the
provisions of the Texas Liquor Control Act or
if any permit or license was wrongfully issued,
it shall be the duty of the Attorney General, or
the District or County Attorney, to begin pro-
ceedings to restrain any such person from the
threatened or any further violation, or opera-
tion under such permit or license, and the Dis-
trict Judge shall have authority to issue re-
straining orders without hearing, and upon notice
and hearing to grant injunction, to prevent such
threatened or further violation by the person
complained against, and may require the person
complaining to file a bond in such amount and con-
taining such conditions and in such cases as the
Judge may deem necessary. Upon any judgment of
the Court that violation of any restraining order
or injunction Fssued hereunder has occurred, such
judgment shall operate'to cancel without further
proceedings, any license or permit held by the
person who is defendant i'nthe proceedings, and
no license or permit shall be reissued to any
person whose license or permit has been so can-
celled, revoked, or forfeited within one year
next preceding the filing of his application for
a new license or permit. It shall be the duty
of the District Clerk to notify the County Judge
of the county wherein was Issued any license or
permit SO cancelled, and to notify the Board of
any judgment of a Court which may operate here-
under to cancel a license or permit."
Article 2072, Vernon's Annotated Texas Clvll Sta-
tutes, reads as follows:
"MO security for costs shall be required of
the State or of any incorporated city or town in
any action, suit or proceeding, or of an executor,
admlnistratior or guardian appointed by a court
of this State in any,,suitbrought by him in his
fiduciary character.
Honorable Bert Ford, Administrator, page 4 O-2724
Article 2052, Vernon's Annotated Texas Civil Sta-
tutes, reads as follows:
"Each party to a suit shall be llable'for
all costs incurred by him. If the costs can-
not 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 Incurred by such party, but no more.”
11 Texas Jurisprudence, Costs - Section 40, pages
292-3, reads ln part as follows:
"It is enacted that each party to a suit
shall be liable for all costs 'incurred' by
him. Accordingly it has been held that an Item
of costs is not taxable unless It has been 'in
curred' by the party sought to be charged there-
with. The word 'incurred' as used in the above
enactment has been held to mean 'brought on,'
'ocasioned' or 'caused.' A party may be sala
to have 'incurred' the costs if they are the
necessary and contemplated result of his con-
duct in the proceeding, such as the costs incur-
red by a plaintiff suing a minor for the services
of a guardian ad litem, and the issuance and ser-
vice of all process requisite to bring the de-
fendants before the court. But expenses which
may or may not be necessary for a defendant to
incur in order to present and protect his rights -
such as fees to clerks, sheriffs and other mln-
isterlal officers, witness fees, and other like
items - though remotely induced by the fact that
a suit is brought, may not, however, be said to
have been 'incurred' by the plaintiff."
We quote from the case of Reed vs. State, 78 SW
(2d) 255 (Austin Court of Civil Appeals), (Writ of error
dismissed), as follows:
"The unpaid costs in said case were tax-
ed against the state. No contention is made
that such costs are unreasonable nor that they
were not authorized. The Attorney General by
cross-assignment contends, however, that no
authority exists In law for taxing costs against
the state, whether it be plaintiff or defendant,
or whether it be sucessful or not. That seems
to be the conclusloh reached by the El Pa,so
Court of Civil Appeals in Pope v. State, 56 S.W.
Honorable Bert Ford, Administrator, page 5 O-2724
(26) 492, following the general rule announced
in 59 C. J: 332, and 25 B.C.L. 418. It has
been the uniform custom, however, where the state
has been a proper.party to a suit, to tax costs
against it as against any other litigant. Wecea-
sarlly, payment thereof must await appropriations
of funds for that purpose by the Legislature,
but such appropriations havs habitually be4n made
by each Legislature for'mamy years. The``right
and propriety of taxing such costs against the
state as a party litigant is, we think, conclu-
sively foreclosed by the Supreme Court In
Houtchens v. State, 74 S.W. (2d) 976; that being
an opinion on motion to tax the coats against
the state and the only issue there preasnted.
"The general rule is that, when the state
enters the courts as a litigant, it places it,-
self on the same basis as a#syother litigant;
While granted immunitiea~no,tavailable to liti-
gants generally, e. g., the ,:+%ght to be sued only
with its consent, not required to give bona,
freedom form execution against it, etc., with
the ever-increasing number of suits to which
the state is a party, frequently upon it8 own
initiative, it would be a harsh rule to saythat
the officers of the court should be compelled
to render to the state without compensation in-
dispensable services, no matter how on4cous they
might be...,."
The departmental appropriation for the current bi-
ennium shows the following appropriation for court costs,
etc. for the Texas Liquor Control Board, same being Section
9 under the heading "Maintenance and Miscellaneous , to-wit:
"Fq.rthe years enam
August 31,'1940. August 31, 1941
$9
....... .........
“9 . Court costs, Witness fees and
Contingent Expenaea..........$27OO~OO $2700 .oon
Of course, the Texas Liquor Control Board is not
required to give bona for costs and execution for coat8 can
not be levied against it, as it is a Stat4 agsncg. It is
also fundamental law that the Texas Liquor Control Board
cannot expend money with.outan.appropriation ,made thersfor
by the Legislature.
_ .. .
Honorable Bert Ford, AdmLnLstrator, page 6 O-2724
However, It is the opinion of this department that
the Texas Liquor Control Board is authorized to pay court
costs incurred by It In Injunction suits brought under the
Texas Liquor Control Act, in cases where costs cannot be col-
lected from defendants as outlined In your letter, provided
such expenditure is within the appropriations set out above.
Trusting that this satisfactorily answers your ln-
quirg, wd are
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. Fanning
Wm. J. Fanning
Assistant
WJF:AW:wc
APPROVED SEP 25, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman