### .- ‘-,

.aDepartment of Public Safety

Camp Mabry Austin, Texas Attention: Mr. L. G. Deats 11';'~ OpinionNo. O-3404 Re: Should the Department of Public Safety forward to the Comptroller of Public Accounts a voucher for the issuance of a warrant in payment of the bill of costswhere destruction orderswere granted on Gentlemen: gambling paraphernalia?

Your recent request for an opinion of this department on the above stated questionhas been received,

We quote from your letter as follows:

"I am attachinghereto the copy of a letter addressed by the County Clerk of Bexar County to Honorable Geo. H. Sheppard, State Comptroller of Public Accounts, relative to Bill of Costs in Cause No. 31,089, Civil Docket County Co,urt at Law MO. 2, Bexar County, togetherwith a copy of Mr. Sheppard's letter in reply thereto and a copy of the Bill of Costs. "Heretofore,this Departmenthas not paid the costswhere destructionorderswere granted on gambling paraphernalia confiscatedby officers of this Department. 1. "Iwould appreciateyour advice as to whether or not this Department should forward to the Comptroller of PublicAccounts a voucher for the issuanceof a warrant in payment of such bill of costs.'
The lettersmentioned in your inq'uiry from the County Clerk of Bexar County to Honorable Geo. H. SheppardDepartment of Public Safety, page 2 (o-3404)

and his reply thereto read as follows:

"We are enclosingherewith three certified copies of Bill of Costs in cause No. 31,089, styled The State of Texas - vs - Gambling Paraphernalia, civil docket of the County Court at Law No. 2, of Bexar County. For your further information, this case was filed by Mr. R. R. Rohatsch, of the State Rangers. "Final judgment,granting destr,uction in this cause was ordered on November gth, 1940.
"We are endeavoring to clear our books of all unpaid costswherein no deposithas been made before the end of the year, thereforewe shall greatly appreciateyour negotiablewarrant for these costs at your earliest convenience."

"I am referring your-letter of December the 7th to Homer Garrison,Director, Texas Department of Public Safety. I am sure he will advise you as to what dispositionwill be made of your Bill of Costs."
The above mentioned proceeding to sec'ure an order to destroy certain gambling paraphernaliawas institutedby a Texas Ranger by virtue of Article 

### 633, 636and 

### 637of Vernon's Annotated Penal Code. It is not specifically stated in the above quoted letters that the costs in the proceedingwas taxed against the State. The State is bound by judgmentsand actions to which it is a party to the same extent as a private suitor, rem. (Statevs. tho~ugh the judgmentmay be in Cloudt, 

### 84 S-W, 415, error refused). It has been broadly stated that costs may not be taxed against the State in the absence of a statute so providing, and this appears to be the general rule in other jurisdictions. In Texas it has been the uniform custom to tax costs against the State asagainst any other suitor. We quote from the case of Reed, et al, vs, State, 

### 78 S.W. (2d) 254, as follows:

"Theunpaid costs in said case were taxed against the state. No contention is made that such costs are unreasonablenor that they were not authorized. The Attorney by cross-assignment contends,however, that 

### no authority exists in law for taxing costs againstthe state,whether it be plaintiff or defendant,or whether it beDepartment of Public Safety, page~3 

### (O-3404) :

successful or not. That se,ems to,. be the,:con-I,, elusion reached by the Ed Paso Court of 'Civi~l Appealsin Pope V. State; 5&S,,W, (2d)

### ,492, following the general rule announced in 

### 59 C. J. 332, and 25 R. C. L. 

### 418. It has been the uniform custom,how:ever, where the statehas been a proper party to a suit, to tax costs against itas~ against any.,other litigant.:,

Necessarily,~.:,:,, payment thereofmust await appropriationsof funds for that p'urpose by the Legislature, but. such appropriationshave habitually been made by each,Legis.lature' for many years. Theright, and.proprietyof taxing such costs aga~inst the,. ,! state as a party litigant is,we think, conclusively foreclosedby the Supreme Court in Houtch-m ;~ ens v. State, 

### 74 ,S.W, (2d) 

### 976;that being an opinion on motion to tax the costs against the state and the only issued there presented.
"The general rule is that, when the state enters the courts as a litigant, It places itself on the same basis as any other litigant, While granted immunitiesnot available to litigants generally, e. g., the right to be sued only with its consent, not req,uired to give bond, freedom from execution against it, etc.,with the everincreasingnumber of s'uits to which the state Is a party, frequentlyupon its initiative, It would be a harsh rule to say that the officers of the co'urt

sho,uld be compelled to render to the statewithout compensation indispensable services, no matter how onero'us they might be."
Under the heading of maintenance and IdSC~llaneOUS in the~appropriationfor the Department of Public Safety as shown on page 

### 187of the Special Laws of the State of Texas passed by the regular session of the 

### 46thLegislature, it iS provided "expensesof Director enforcing laws, making investigations,and to employ men other than Rangers and narcotic inspectorswhen necessary, $5000 for the year ending August 31, 1941" 1940, and $5000 for the year endingAugust 31,

The bill of costs attached to your inquiry shows the amount of costs due to be $4.40. Under the facts stated we cannot categoricallyanswer your inquiry,however, if the court has taxed such costs against the state, the above stated question is respectfully answered in the affirmative,

### Departmentof PublicSafety,page 4 (O-3404)

otherwise,in thenegative.

Trustingthatthe foregoingfullyanswers your 

### inquiry,we are
Yoursverytruly
APPROVEDAPI3

25, 1941 (Signed)GroverSellers
FIRSTASSISTANT A!F?ORNEY

GENERAL AWzlh:mj ATJYORNEY GEXEEALOF TEXAS

BY (Signed) ArdellWilliams Assistant

APPROVED OPINION COMMITrEE
BY /s,/ BKB Chairman