OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

honorable Den J. Dean 

District ntt;orney 

Ereckenridge, Texas 

Dear Sir: 

Your reoent letter 

partment on the follovlng 

be a dellnju%ge% against 

the Court Reporter 

minor for a transatement of facts in the 

e absence of a pauper’s 

tlon of the Juvenile Delinquency Act, 

slature (1943), page 313; tirticle 2338- 

Statutes, 1925, as amended, discloses no 

judged a delfiquent 

t dealing vlth costs where 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 criminal prosecutions -- 

it Is a civil procedure and appeals are to the Court of Civil 

Appeals and to the Supreme Court. 

The Rules of Practice and Procedure in Civil Actions 

promulgated by the Supreme Court of the State are not applicable in delinquency proceedings. Rule 2 in part provides: 
Honorable Ben J. Dean, psge 2 

"These rules 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 Juvenile iict sets up and establishes a 

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, "having such 

jurisdiction as may be necessary to carr 

of this Act." (article 2338-1, Section 1 

out the p~ovlsfons 

). 

In In Re Dendy (1943), 175 9. W. (2%) 297, the 

~marf.110 Court of Civil Appeals at page 302, said: 

"The &t sets up a complete jurisdiction 

and proce%ure POP the hearing of juvenile dellnquency cases and there is no other law, civil or 

criminal, togovern such cases and situatlons as 

defined by the Act and placed within the exclusive jurisdiction of the juvenile court provided 

fcr in this tict. Nowhere does the Act provide 

that either criminal or civil procedure shall be 

folloved." 

Now, Section 21 of the Juvenlle Act provides that; 

'An 8pp8al may be taken by any party aggrieved to the Court of Clvll Appeals, an% the 

case may be carried to the Supreme Court by writ 

of error JF upon certificate, as in other civil 

cases. Vritten notice of appeal shall be file% 

with-the Juvenile Court uithln Plve (5) days after the entering of the order . . .(and in event 

of adverse judgment) the appellate court mily provide 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?, .but they need not be given in causes or proceedings beyond the &ope of such mandatory requirements, and under some 

provielons the matter 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 ” 131 A. 1. R. 1476, 

there is cited Noble vs. People (18771, 85 Ill. 336, vhereln 

it vas held that a statute requiring of non-residents a bond 

for costs was not applicable in bastardy proceedings by the 

mother against the putative father to compel him 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 Court Act 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 shsll be paid 

by t.he county. another section provides 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;i of oosts was unknovn 

to the common law, and no provision could be made 

for their payment, except as expressly authorized 
Honorable 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 inherent pover 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 provided by 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 

county with coats in a baatardy proceeding, the 

court, after laying down the rules that the llsbility of county for costs In orlmlnal prosecutions rest alone on the statute, aoncludea by 

saying L ‘Cur aonclualon 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 legal provlslona, 

unless it is speclSicAlfy or by necessary lmpllcation named or referred to therein.’ This rule 

is supported by the Sollowing oases, and seema 

to be generally aoctpted as 8 true rule: . . . .” 

(The court here cited numerous supporting declalona.) 

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, granted a vrlt of error 

in the case “on oonatructlon of the act.” It ia set for submission for February 2, 1944. 

me vish to again refer to section 21, Article 2338- 

1, wherein the Juvenile Delinquenoy Act provides that: 
~Ronorable Ban J. Dean, page 5 

“hn appeal may be taken by any psrty aggrieved to the Court of Civil wppeals and the 

case may be carried to the Supreme Court --, ” 

in other civil cases." (Underscoring ours) 

Though the Juvenile Delinquency ret set up a complete prooedure for the hearing of juvenile delinquency 0894s 

In the trial court, I. e., in the juvenile oourt of the oounm, when the oaae is appealed to the Appellate court then 

the rules and the prooedural law provided for the appellate 

courts prevail (exodpt as to the giving of a bond, unless a 

recognizance bond be requested); 48 Section 21 of ths Act provides for an appeal “as in other clvll oaaea.” Thus, vhen 

a case la appealed then insofar as the appellate procedure 

is conoern4d, the Rules of Praotloe and Procedure in Civil 

wctiona promulgated by the Supreme Court aa well as the pertinent statutory provisions prevail. 

Rule 355 provides for an appeul by a pzrty unable 

to givs a coat bond and unless the aggrieved party complies 

with Rule 355 and files his pauper's affidavit, then he oan 

perfect his appeal solely in the abaDger provided for “as in 

other clvll cases.” 

To the first question we answer, 'NO." 

To the second question we answer, “No.” 

To the third question we answer as follows: 

(a) That th4 district clerk is not entitled to demand paymsnt of Sees as z condition precedent to delivery of 

transcript for tranamlasioa to ..ppellate Court. 

(b) That tha court reporter has a Fight to require 

payment of fees aa a condition precedent to the delivery of 

transcript of evidence or statement of facts for trznsmlasion to the Appellate 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 the Dsllas Court of Civil Appeals, is 

Fry v. Henrietta Independent School District (1X56), 9x811:: 2 

our 4uthOFity for our answers to the third question. 
Honorable Ben J. Dean, page 6 

(2d) 245, the Fort Worth Court of Civil Appeals held: “that 

the adminlatrator must pay for the transcript of the evldence .re&ardless of the fact that he Is not required to give 

a bond on appeal. n 

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

pertinent statutes. Rule 378 provides for an agreed statement 

of the case aad of the facts proven and Rule 380 provides 

for a free statement of facts on appeal for paupers. ns hereinabove stated, these rules do not altar the authorities 

above cited for the Rules in this instance did not change 

the statute upon which these authorities were based. 

Very truly yours 

ATTORIQM GENERAL OF TEXAS