OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

honorable Den J. Dean Districtntt;orney Ereckenridge, Texas
Dear Sir:

Your reoent letter partment on the follovlng
be a dellnju%ge%against

the CourtReporter minor for a transatement of facts in the e absence of a pauper’s

tlon of the JuvenileDelinquencyAct, slature (1943), page 313; tirticle 2338- Statutes, 1925, as amended, disclosesno judgeda delfiquent t dealingvlth costswhere a child is adchild. I!he

Act does not contain any provision for ihe awarding or payment of costs. Delinquency proceedings under the statute are not criminalprosecutions -- it Is a civil procedure and appeals are to the Court of Civil Appeals and to the Supreme Court.

The Rules of Practiceand Procedure in Civil Actions promulgatedby the Supreme Court of the Stateare not applicable in delinquencyproceedings. Rule 2 in part provides:Honorable Ben J. Dean, psge 2

"Theserules 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 Juvenileiictsets up and establishesa 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, "havingsuch jurisdictionas may be necessary to carr of thisAct." (article2338-1, Section 1 out the p~ovlsfons ).
In In Re Dendy (1943), 175 9. W. (2%) 297, the ~marf.110

Court of CivilAppeals at page 302, said: "The&t sets up a complete jurisdiction and proce%ure POP the hearing of juveniledellnquency cases and there is no other law, civil or criminal, togovern such cases and situatlonsas defined by theAct and placed within the exclusive jurisdictionof the juvenilecourt provided fcr in this tict. Nowhere does theAct provide that either criminal or civil procedure shall be folloved." Now, Section 21 of the JuvenlleAct provides that;
'An 8pp8al may be taken by any party aggrieved to the Court of ClvllAppeals, an% the case may be carried to the Supreme Courtby writ of error JF upon certificate,as in other civil cases. Vritten notice of appeal shallbe file% with-the Juvenile Court uithln Plve (5)days after the entering of the order

. . .(andin event of adverse judgment) the appellate courtmilyprovide 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 proceedings falling within the requirement of controlling statute?, .butthey need not be given in causes or proceedingsbeyond the &ope of such mandatory requirements,and under some provielons thematter 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 statutory 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 ” 131A. 1. R. 1476, there is citedNoble vs. People (18771, 85 Ill. 336, vhereln it vas held that a statute requiring of non-residentsa bond for costs was not applicable in bastardy proceedingsby the mother against the putative father to compelhim 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 Pac. 302, an. Cas. 1914b,page 869, the Supreme Court of Uashihgton, in discussing the question of costs under the Juvenile CourtAct 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 natural or legal guardian of the person of the alleged 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 shsllbe paid by t.he

county. another sectionprovides 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 noprovision could be made for their payment, except as expressly authorizedHonorable Ben J. Dean, page 4

by statute. This rule has been one of such universal 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 inherentpover in the court to award coata, and that they can be granted in any case or proceeding ac$ely by virtue of express atatutory authority. Continuing, the Supreme Court of the State of Washington, said:

‘The doctrine that costs cannot be avarded except as providedby statute,applies to crlmlnal as veil aa civil cases. In this respect the character of the proceedings creates no diatlnction. In state v. Blackburn, 61nrk. 407, 33 3. W. 529, where it vas sought to charge the countywith coats in a baatardy proceeding, the court, after laying down the rules that the llsbility of county for costs In orlmlnalprosecutions rest alone on the statute, aoncludeaby sayingL ‘Curaonclualon 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 legalprovlslona, unless it is speclSicAlfy or by necessary lmpllcation named or referred to therein.’ This rule is supportedby the Sollowing oases, and seema to be generallyaoctpted as 8 true rule:

. ...” (The courthere cited numerous supportingdeclalona.) With further reference to the Dendy case, by the fimarlllo

Court of Civil Appeals It will be noted that the Supreme Court on January 12, 1944, granteda vrlt of error in the case “on oonatructlon of theact.” It ia set for submission for February 2, 1944.

me vish to again refer to section 21,Article 2338- 1, wherein the Juvenile DelinquenoyAct provides that:~RonorableBan J. Dean, page 

### 5

“hn appeal may be takenby any psrty aggrieved to the Court of Civil wppeals and the casemay be carried to the Supreme Court --, ” 

### in othercivilcases." (Underscoringours) Though the JuvenileDelinquency ret set up a complete prooedure for thehearing of juveniledelinquency 0894s 

### In the trialcourt,I. e., in the juvenile oourt of the oounm, when the oaae is appealed to theAppellate court then 

### therulesand theprooedurallawprovided for the appellate courts prevail (exodptas to the giving of a bond, unless a recognizancebond be requested); 48 Section 21 of thsAct provides for an appeal “as in other clvll oaaea.” Thus, vhen a case la appealed then insofaras theappellate procedure is conoern4d, the Rules of Praotloeand Procedure in Civil wctiona promulgatedby the Supreme Court aa well as the pertinent statutory

### provisionsprevail.

Rule 

### 355provides for an appeulby 

### a pzrty unable to givs a coat bond and 

### unlesstheaggrievedparty complies 

### withRule355and fileshispauper'saffidavit, then he oan perfect his appeal solely in the abaDger provided for “as in other clvll cases.”



### To the first 

### questionwe answer, 'NO."
To the second questionwe answer, “No.”
To the third questionwe answer 

### as follows: (a) That th4 district clerk is not entitled to demand paymsnt of Sees as z conditionprecedent to delivery of transcript for tranamlasioa to ..ppellate Court. (b) That tha court reporter has a Fight to require payment of fees aa a conditionprecedent to the delivery of transcript of evidence or statementof facts for trznsmlasion to theAppellate Court, vhere an appeal is not perfected In forms pauperir.

The case of Maxfield v. The Pure Oil Compeny (1934), 

### 74 3. w. (213)



### 145,by theDsllas Court of CivilAppeals, is Fry v. Henrietta Independent SchoolDistrict (1X56), 9x811:: 2 our 4uthOFity for our 

### answersto the third question.Honorable Ben J. Dean, page 

### 6

(2d) 245, the Fort WorthCourt of CivilAppeals held: “that the adminlatrator must pay for the transcript of the evldence .re&ardlessof the fact thathe Is not required to give 

### a bond 

### onappeal.

n The present rules of civil procedure do not conflict with the authorities cited. These rules, though superseding the statutesare taken practically unchanged from the pertinent statutes. Rule 

### 378provides for an agreed statement of the case aad of the facts proven and Rule 

### 380provides for a free 

### statementof facts 

### onappealfor paupers. ns hereinabove stated, these rules do not altar theauthorities 

### above cited for the Rules in this instancedid not change the statute upon which these authoritieswere based. Very truly yours ATTORIQM GENERAL OF TEXAS