Untitled Texas Attorney General Opinion

Juue 9, 1950
Hon. oene Mad&ill opiniou Ho. v-1071.
Mstrlct Attorney
payygm Rer Types of p.roceedI.ugs
s subject to the Couutg
Library fee assessed
Dear Sir: in oivil cases.
Your request. for au opinion is as followst
wThe County Conrmissloners~of MaLeman Couu-
ty passed sn a& authorleing the Couuty
Clerk aud the Mstrlot Clerk of said Couu-
ty to assess th'e extra fee of $l.OO.on ea&h
oivil ease filed in said oourts, with the
exoeptlou of tax suits. This fee IS to be
put into a fund to establish and maintain
aCouutyLibrary. Are sxxih a&lens as Suar-
dianshlp, probate procee lnsauity, res-
toration -9, Civil asses' as
and Rabeas Corpus
should ccme uuder said a&?*,
Since McLennan County has a populatiou of 101-
898 inhabitants and the court or Civil Appeals of the
Tenth Supreme Judicial Mstrict la located in Waco, the
provisions of Article 17028 or vfmmn~scivil Statutes
are applicable to McLegnsn Couutg.
Artiole 1702~9, V.C.S., pvovides:
"section 1. The Commissioners Couvts
of all counties wIthIn this State haviog
a population of not less than.thlrty thou-
sand (30,000) %nl$xbltants uor more thau two
huudred and fifty thousand (250,000) duhabl-
tants, acaording to the last preceding or any
future Federal Census, end in whiah there is
located a Court of Civil Appeals, shall have
the power and authority,.by first entering an
order for that purpose, to provide for, main-
tain and establish a County Law IiLbravy.
nsec. 2. For the purpose of establlsh-
w CouutyLaw Libraries after the entry of
such order, there shall be taxed, collected,
Eon. Gene Maddln, paw 2 (V-lO?l) .
and id as other costs, the sum of One Dol-
lar r $1) in each civil ease, except suits rm
delinquent taxes, hereafter filed in every
oounty or district court;~provlded, however,
that in no event shall tlie county be liable
for said costs in any case. Such costs shall
be collected by the clerks of the respective
co&is In ~Said counties and paid by said
clerks to the County Treasurer to be kept by
said Treasurer in a separate fund to be kaovn
as the 1CotmtyLawLibraryFtmd.8 SuchFund
shall be administered by said Courts foF the
purchase and maintenance 0r a Iaw Ubrary in
a convenient and accessible place, and said
Fund shall not be used for any other purpose.
‘Sec. 3. Said Courts are granted all
neaessary ppwer and aathor%ty to make thXs
Act effective, to make reasonable rules in
regard to Said Idbrary.and the use of the
books thereof, and to ,carry out the terms
and provisions 0r thls Act ."
In acOorclance with Article 17028 the Con&s-
sionersJ Court .xH! HeLendan -%omrtp; Under'th& faeta sub-
a*eq,'..we ~.ea*``.&--&dep*`` fa'r;..+ .gg+:of.'On*
.DollM ``l..~)-``ae~eo6Ca-~-blreh-clvll- eas+f&led.ln
the -oounty or 'distrlat court +xcept tax &its td’be put
into a fund for the purpose of establlshS.ng a County Iaw
Library.
A “cats’8 a as defined ti Slaven v. Wheeler, 58
Tex. 23. 25 (18821. is “a oontested auestion before a
court 6? j6sthceaT&?, as defined in I& part8 Towlea, 48
T*x. 413, 433 (1877), ‘a question contested before a
court or justice; an action 'or suit in law or equltg.*
A *&ml&al’ case as distlng~shed from a “civil’ case
is defined Ln Scott v. State, 86 Tex. '321, 24 S.W. 789
(1894) to be *an ~aoticn, suit or cause instituted to
tiecure convl&lm~.and prnriahment for crimei" A T@clz
action is defined in Ian* v. Eewgle , ,155 S.W. 3W, 3YJ
(Tex.Olv.App.1913) __ to be “a ~rOoeed%Ria a 00td 0f
j~tiC8 b--&e party agalnst‘an6ther ?or the ‘enfOrCa Ed
or protection 0r a prlvate..right or for the redress o*
prevention 0r a .pz$vate wrong.‘,
With %he above Se&-al distinct&s between
civil and criminal ‘kases in mind, ~8 shall omslder *aoh
of the specific types or proceedings mentioned In 9om ,~
request.
Eon. Gene Maddin, page 3 (V-107l)
1. GuardLanshlp and other cases in the
Probate Court:
It was held in Attorney Generalts Opinion Ro.
O-3957, dated October 7, 1941, thzit probate matters are
amdragthe oases in which,House Bill 1080.'of the'47th Leg-
Mlature (Art. 1702d, V.C.S.) directs that the-bum of One
Dollar'($l.OO) shall be taxed as costs f&r-the purp08i3 of'
establishing"&ud maintaining a County Law Mbrary. We
quote the r0iiowing from said opinionr
"And the Isgislature of Texas seems also
to have consfdered probate matters as 'civil
casesl. Witness the language used in Article
1821, Revised Civil Statutes of 1925:
*Wie udgments or the Courts or Civil
Appeals 8hai 1 be couclusive onthe law and
faots, nor shall a writ of error be allowed
themto.franthe Suppers Couvt Ln the follow-
ing cases, to tit:
*l(l) Any civil case appealed from the
couuty court or from a'district court, when,
under the Constitution, a county court would
havehadoriglnalorappellate jurisdiction
to trJi 'it, *xc*& In probate matters . . .'
(Underllnlng ours )
'Also, the language used In Artlcle*3702,
relating to appeals of probate matters to the
district cow&x
*'Such cases shall be tried de novo in
the district court, i?+ndshall be governed by
the same rules of procedure as other civil
cases in said court.' (Underscoring ours)'
"When such a meaning is ascribed ho the
word 'case' as used in House Bill Ro. 1080,
probate proceedings, whether contested or not,
fall within its terms. And we believe such a
construction Is tithin the apparent Intent of
the Legislature in enacting it.
"You are therefore respectfully advised
that it is our opinion that probate matt,era
are among the cases in which House Bill Bo.
Eon. Gene Mad&Lxx,
page 4 (V-1071)
1080 &recta that the sum of One Dollar ($l.-
00) shall be taxed as costs for the purpose of
establlshlng and malntalnlng a County law Ll-
brary (assuming, of course, that the C&s-
sloners' Court has first entered its order for
that purpose..)'
We point out, however, that not all proceeq8 in the
Probate Court are classlifledas a 'civil case wlthln
the meaning of Artlole lTO2e. We quote the following
from Attorney General'-s opinion Ho. V-292:
'It Is recognized that certain proceed-
lngs in the Probate Court could be classified
as a lcivll case'. Wevertheless, an appllca-
tion riled in the Probate Court for a delayed
birth certificate is not a *oivil case' with-
in f&e meaning of Art. 1702a-1, V.C.S., riled
ln County or Mstrlct Court; therefore appll-
ants for delayed birth certiilcates may not
be taxed the $1.00 fee for filing."
‘Proceedings under said act of 1913 are
of a civil, and not of a criminal, nature.
Insanity is not a crime; in contradistlno-
tC3x it 1s a disease. . .*
See also Ex parte S-l&on, 72,Tex.Crlm. 122, 161 S.W.
123 ( 1 9 1 3’) l
It was held in Attorney General's Opl.t&ons Was.
O-259, dated February 28, 1939 and O-3952, dated March 11,
1943, that lunacy or Fnsanlty proceedings are civil cases.
In view 0r the foregoing it is our opinion that
insanity prooeedlngs ere civil oases within the meaning
or Article 1702e. ~:
In People v. Cornelius. 302 Ill. 599, 65 N.E.
26 439 (Ill. S.Ct 1946) it was held that a prOC88ding
under then Criminai Code to determIne whether a person
charged with a crime is a "olvil proceeding.' It was
pointed out, however, that such a proceedlng "Is not an
action at law or In equity but was wholly preliminary to
trial 'on the indl0tm8nt." Therefore, where Insanity Is
BCD. Gene Hadbin, page 5 (V-107l)
FnterDosed as a defense in a crim3nal erase under the Dro-
~isioixs 0r Artiole g32a, V.C.C.P., although the hearl@
on the question of %nsanity may be a oivll proceeding,
such a plea would not oonstltute a civil case wlthln the
meaning 0r Article 17028.
wrte Frailey, 146 Fex.Crlm. 557, ln S.
W.2d 72 (l$$ it was held t t restoration procee
of a person noi. charged with a arriminal offense under Yie
provlslcns of Article 561a,.V.CcS~;, Is a oivil matter.
It Is therefore our op L an that all restoration prooeed-
lngs held under the provlslans of Article 556la are civil
cases. Idkewlse, it is our oplnlan that restoration pro-
ceediugs under Article 932a, V.C.C.P., are civil~oases
for such restoration proceedings are not actions, suits
or other.causes instituted to secure conviction and pun-
m37senti-02 crime. On the oontrary, such trials are
cases involving solely the question of sanity, wholly
Independent from any cH.nUal case avaiting trial when
the defendant is adjudged sane. Ex part8 FraLle& supra.
3. Habeas Corpus:. In: determln%ng whether habeas
corpus cases are regarded as c%vll or 'crimImal'remedles,
It was held ln Harblson v. McMurray, 138 Tex. 192, 158 S.
W.2d 284, 287 (1942):
"Since habeas oorgus eabes ar proceeds
l.ngs tie regarded as clvll, as dlstlngulsh-
ad fr6m crlmlnal remedies or proceedings,
In those jurisdictions whloh do not divlde-
the jurlsdlctian. of their appellate oourts,
as regard crimlnal~and civil cases, we think
that in this State, where such division is
made, appeals in habeas corpus cases or pro-
ceedtngs growing out 0r civil proceedings or
cases Should be classified as tclvll cases'
within the meaning or Section 6 of Ax%.&8
V of our State Constitution and Article 2249
0r our civil statutes."
In Ex parte Green; 116 Tex. 515, 295 S.W. 910
(1927), it was held that a judgment ptmish$ng one for
contempt of court for vlolatlng an injunctlcn issued M-
der an Act prohibiting the sale of Intoxicating 1iqnOrS
was rendered in a 01~11 oase rather than a criminal case
within the meaning of Article 1737, V.C.S., granting the
Supreme Court the power to issue writs of habeas corpus
In civil oases. We quote the roiioving:
Hon.GeneMaddin, page'6 (v+107l)
“After the pardon proolamatlau was is-
stied, relator sought his discharge from the
dlstrlctcourt'onhabeas corpus. upouhls
discharge being refused by the dlstrlot court,
relator appealed to the Court of CrImInal Ap-
peals. The appealwas dIsmIssedlnauopIn-
ion by Presiding Judge Morrow, In whlah It
was saidt
“(As applied to the present' Iustauce
In which the appellant seeks relief from the
judgment of contempt entered against him in
a civil case, we are 0r the opinion that he
should Invoke the jnrisdiotlon of the Supreme
Court to give him any relief to which he Is
entitled be$ore arrklng ~thls court.to dis-
Ex part8 Green, 100 Tex.Cr. R.
ie:7i%:W. 162.
"Inholdingthatthe judgmentpunLshing
relator for contempt was rendered in a civil
suit and not in a criminal oase, the Court of
Orlmbial Appeals'adhe&ed to a'long line of
th@~Penal~Code. ``Hh@i&icearo~agplied to~.the
Court‘of Criminal Appeals ror'rel6ase fram
a judgment~oslng onhlmboth~fineaud
Imprisonment for conteinpt ln aoing the act
forbidden by the Injunction, the court denied
him relief on the ground%
"VPhat the case lnwhlch Ws puaishmeut
in contempt was Imposed is a civil case, we
have no doubt. Any judgmentwhichwouldhave
been rendered by the district oourt of .Tarrant
Couutqln said cause could only have been ap-
pealed, and by either party, to the civil
courts 0r this state, and it could not have
been appealed to this court. * * * While the
violation of said artlole of the Code is a
oriminal offense, said suIt Is a clvll case,
and appllaant is held by the farirr by vir-
tue of prooess and oonmdtnmt and order on
account of the violatlomor an order of the
said district judge end oomt, In the very
terms 0r said statute.lu
Hon. ffene Raddin, page 7' (V-107&)
The test.fo determin8,whether.a particular
habeas corpus prpoeeding 1s.a elvll p&se or a crlmlnal
aase is aptly stated QI State v.:~orris`` 208S.W.2d 701
(Tex.Civ.App.1948) as follows:~ .',
"The appellate jurlsdlctlon 0r'thG
cour%extenda only *a olvll cases.X&t. V,
Sea. 6, Const.of Tex., VernonJs~@.St..Art.
1819, Vernon’s Tex.Clv.Stats'.~-Iti.order to'.
determine whether a woceedln&by habeae'cor-
pus to remove an ualawful restraint Is ta be
regarded as a criminal- or a cltil.,oase:ror
jurlaclloticmal purposes it la necessary to
look to the cause of the restraint. If the
restraint is by reason of a violation or a
supposed violation of some criminal or quasi
criminal law the prooeedlngwill ordinarily
be regarded as a criminal case; but if thq
restraint is not beoause of some supposed
violation of orlmlnal law, then the.gr.qceed-
lgg must be classed as a civil case1
: In view of the foregoing you are advised that
habeas corpus pro08 8 may be Bither a oivl.1 case or
g ;rlml.nal case wlthln
'-2 he meaning of Article 17028, V.
depending on the facts In each instant case. If
1ixge proceedingIt appears that "the restraint is not
because of some supposed violation of orlndnal law, then
the proceeding must be olassed as a 01~11 case." State
v. Morris stipra; Legate v. Lenate, 87 Tex. 248, 28?i!X.
-.
You have asked no opinion regerdlng the COP-
stltutlmallty of Article 17028 and we express no opln-
ion in that regard.
SUMNARY
Guardianships and other cases in pro-
bate court, insanity, and restoFatlon pro-
ceedlngs &re civil oases within the meanlug
O-259, O-3952, O-3957, V-292.
Hon.Genel6+dln~ &e 8 (V-107l)
.' A habeas'.o&pus 'prooeeding'lpay be
either a orindnal a&se or a oivll case de-
pending on the raots in each inatame. If
in the proceeding it appears that the re-
straint is not because of some supposed
violation of orlmlnal law, then thepro-
ceedinu must bs'classed as a civil case.
Yours very truly,
APPROVED*
PRICEDUIRL
J. C. Davis, Jr. AttorneyGeneral
Couhty Affairs Mvlsion