.- ‘-, 

. aDepartment of Public Safety 

Camp Mabry 

Austin, Texas 

Attention: Mr. L. G. Deats 

11'; '~ 

Opinion No. 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 

costs where destruction 

orders were granted on 

Gentlemen: gambling paraphernalia? 

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

We quote from your letter as follows: 

"I am attaching hereto 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, together with a copy of 

Mr. Sheppard's letter in reply thereto and a 

copy of the Bill of Costs. 

"Heretofore, this Department has not paid 

the costs where destruction orders were granted 

on gambling paraphernalia confiscated by officers 

of this Department. 

1. "I would appreciate your advice as to 

whether or not this Department should forward to 

the Comptroller of Public Accounts a voucher for 

the issuance of a warrant in payment of such 

bill of costs.' 

The letters mentioned in your inq'uiry from the 

County Clerk of Bexar County to Honorable Geo. H. Sheppard 
Department of Public Safety, page 2 (o-3404) 

and his reply thereto read as follows: 

"We are enclosing herewith 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 costs wherein no deposit has been 

made before the end of the year, therefore we 

shall greatly appreciate your negotiable warrant 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 disposition will be made 

of your Bill of Costs." 

The above mentioned proceeding to sec'ure an order 

to destroy certain gambling paraphernalia was instituted by 

a Texas Ranger by virtue of Article 633, 636 and 637 of 

Vernon's Annotated Penal Code. It is not specifically 

stated in the above quoted letters that the costs in the 

proceeding was taxed against the State. The State is bound 

by judgments and actions to which it is a party to the same 

extent as a private suitor, 

rem. (State vs. 

tho~ugh the judgment may 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: 

"The unpaid costs in said case were taxed 

against the state. No contention is made that 

such costs are unreasonable nor 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 be 
Department 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 state has been 

a proper party to a suit, to tax costs against 

itas~ against any.,other litigant.:, Necessarily,~.:,:,, 

payment thereof must await appropriations of 

funds for that p'urpose by the Legislature, but. 

such appropriations have habitually been made 

by each,Legis.lature' for many years. Theright, 

and.propriety of taxing such costs aga~inst the,. ,! 

state as a party litigant is, we think, conclusively foreclosed by 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 immunities not 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 everincreasing number of s'uits to which the state 

Is a party, frequently upon 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 state without compensation indispensable 

services, no matter how onero'us they might be." 

Under the heading of maintenance and IdSC~llaneOUS 

in the~appropriation for the Department of Public Safety as 

shown on page 187 of the Special Laws of the State of Texas 

passed by the regular session of the 46th Legislature, it iS 

provided "expenses of Director enforcing laws, making investigations, and to employ men other than Rangers and 

narcotic inspectors when necessary, $5000 for the year ending 

August 31, 

1941" 

1940, and $5000 for the year ending August 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 categorically answer your inquiry, however, if the 

court has taxed such costs against the state, the above 

stated question is respectfully answered in the affirmative, 
Department of Public Safety, page 4 (O-3404) 

otherwise, in the negative. 

Trusting that the foregoing fully answers your 

inquiry, we are 

Yours very truly 

APPROVED API3 25, 1941 

(Signed) Grover Sellers 

FIRST ASSISTANT 

A!F?ORNEY GENERAL 

AWzlh:mj 

ATJYORNEY GEXEEAL OF TEXAS 

BY 

(Signed) Ardell Williams 

Assistant 

APPROVED 

OPINION 

COMMITrEE 

BY /s,/ BKB 

Chairman