Hon6rable.E. C. Fetry, ,Jr~.

CountyAttorney Dlmmit County Carrizo Springs, Texas
Dear Sir: Opinion Ho. O-6877
Re: If ajuvenile employs counsel, Is it the duty of the county attorney to appear whenrequested by the court andpresent the evidence alleging said child to be deliaquent? Andrelated questions.
Your request for our opinion on the above questions reads as follows:

"I would like to have an opinion from your Departmeut on the following questions. '(1) Under the &venlle Delinquency Act where a child Is found to be a delinquent child after a Jury hearing and the Judge places himin the custody of his parents until he reaches the age of 21, and further orders that Court costs that have accumulated be paid by the parent of the child and/or the child; can such Court costs be so assessed andwhat remedyIs there if the parent and/or child ~refuses to pay said Court CO8 ts?"(2) If said child employs counsel, Is It the duty of the County Attorney to appear when requested by the Court andpresent the evidence alleging said child to be a delinquent child?
@Inexamining Article 2338, Section 3, I find that a separate court knownas a Juvenile court is created by the aet and that the County Judge can serve as Judge of the Juvenile court which Is our case in this county. I find that appeals shall beHon. H, C. Petrg, Jr., page 2 (0-6877)

taken to the Court of Civil Appeals, therefore, I assume that the Juvenile Court is a Court of record, andin view of the fact that appeals can be taken and the Court,ls created, It is myopin%on that court cost8 can be assessed either against the dellnquent child, hie parents or guardian.

“I find in Section 7of the above Article, that It Is the duty of the Judge, CountyAttorney OFProbation Officer to makeprellmiaary inquiry, and, if, in their judgment, jurisdiction should be acquired, the County Attorney shall prepare andfile la the Court a petitioe, or any Attorney mayfile said petition, but the law specifically namesthe CountyAttorney, and It would appear that In view of thie duty being placed uponhim, it Is his duty to appear andpresent the evidence aDdtestimony a8alleged in the petition. In this connection It Is myopinion that the CountyAttorney does not have to s,lgn the petition unless he desires to do so, but the person alleging the facts to be true can sign the petition.

“I find in Section 13-A that the Judge mayorder the parent or other responsible person to paysuch sum as will in whole or la part support such child whether committed to the custody of his ownparent or other person, agency or institution, andfind further that the court ahall have full power to enforce such judgmentfor support by civil contempt proceedings after 10days notice to parent. It Is mybelief from this that it wasthe intention of the Legislature that the Judge could also order costs of the hearing to be paid by such parent or other person responsible for the care andsupport of the child.

“I find in Section 21 of the above Article that the Appellate Court mayprovide for a recognizance bead. I find in the case of Steed v. State, 183S. W. (2d) 458, that the’proceedings are civil and not criminal andhence rule of civil proceedings are applicable thereto which would tend to showthat court costs could be assessed, andIf court costs can be asaesaed, then the question arises as to the amountof fee the county officers would be entitled to. For instance, the usual fee for a County Court aase to county attorney In a criminal case is $10.00, however, there is noprovision made that I can flad to renumerate our expenses for the Sheriff whoserves the notice, and the Judge whowould hear the evidence and the CountyAttorney whomust present the evidence, and this becomes animportant thing in a fee county a8in this County. Also in ajury caseHon. Ii. C. Petry, Jr., page 3 (O-6877)

the jurors whoserve expect to be compensated andIt Is myopinion that a charge for said jurors should be made.
"After reading the Juvenile Delinquency Act the above questions cameto mindandin view of the fact that werecently concluded a trial here in which a child wasfound guilty of being a delinquent by a jury under a charge of rape, in view of the fact that the Judge assessed cost8 against such parent of said child andin further view of the fact that the attorney for the child advised themnot to pay costa because there Is noprovision madeunder the act for the coats, It Is very Important to knowwhether such costs can be assessed against the Parent or child or whether the costs mustbe paid by the County, andif 80, can Said costs be based in the ssmemanneras a lunacy or criminal case in County court, or civil case in County court. "It is difficult under the aat to determine if 8uCh costs are to be adjudged, what the 

### amount of such costs should be."
In the case of In ReDeady, et al., 175S. W. (26) 297, affirmed by the SupremeCourt in 179S. W. (2d) 269 the Amarillo Court of ClvcrilAppeals, in holding that Article 2338-1, Vernon's Annotated Civil Statutes,,known as the Juvenile Court Act, is constitutional, held In part as follows:

'The Act sets upa complete jurisdiction and procedure for the hearing of juvenile delinquent cases andthere Is no other law, civil or criminal, to govern such cases andsituations as defined by the Act andplaced within the exclusive jurlsdlction of the juvenile court provided for in this Act. Rowhere does the Act provide that either criminal or civil procedure shall be followed. While Section 2of the Act provides that the 'Act shall be liberally construed,' it does not give the trial court unlimited authority andpower in procedure in such cases. 'I* * *
"TheAct lo question provides for ajury trial whena

### jury is demandedandauthorizes the trial court to order ajury onhis ownmotion in such cases. Nowheredoes the Act provide for the paymentof ajury fee and nowhere does It require theHon. H. C. Petry, Jr., page 4 (O-6877)

trial court to follow civil procedure In demanding and impanelllng ajury if andwhenajury Is demanded in such cases. + * *' Said Article 2338-l contains noprovision relative to the payment of costs in a proceeding thereunder.

O-5786,In passing upona similar question our Opinion No.

wh%chwehere adopt, held in part as follows: "The right to costs as of course is purely statutory. Costs canbe Imposed andrecovered only in cases where there Is statutory authority therefor. Costs, 11Texas Jurisprudence, 228, para. 2, note 17; Costa, 20Corpus Juris Secundum, page 260, para. 2, note34; U. 5. ca8Wdty Companyvs. Hampton, (C. A.) 293s. w. 260. 

### %ecurity for costs mustbe given in causes or proceedings falling within the requirement of controlling statutes, but they need not be given In causes or proceedings beyond the scope of such mandatory requlrements, andunder someprovisions the matter will rest in the sound discretion of the Court. w, 20C.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 juvenile courts; Juvenile Courts and Offenders, 31Am.Jr., 808, para. 45, note 9; Infants, 31 C. J. 1110, para. 24, note 39. "In anannotation on 'what is anaction within the statutes requiring security for costs,' 131A.L.R. 1476, there is cited Koble v. People (1877), 85Ill. 336, wherein it washeld tha,t a statute requiring of non-residents abond for costs wasnot applicable in bastardy proceedings by the mother against the putative father to compel himto bear part of the burden of the support of the child.
"In the case of Pierce County vs. Magnuson, 70Wash. 639, 127Pac. 302, Ann. Cas. 1914b, page l3 1912) 89, the SupremeCourt of Washington, in discussing the question of costs under the Juvenile 

### Court Act of that State, said: "'The juvenile court act makesnoprovision for the awarding or payment of costs, except the provision authorizing the publication of notice whentheHon. H. C. Petry, Jr., page 5 (O-6877)

person standing in the position of natural or legal guardian of the person of the alleged delinquent child

_- _. -. 18a non-reslaent, or tne wnereabouts of such peraon is unknown. In caees of such publication of notice, it I8 provided that the cost of such publication shall be paid by the county. Another section provide8 for ~~;i~y~ment by the county of salaries to probation

. Otherwise the act Is silent on the question of fees and costs. Theawarding andpayment of costs is purely a matter of statutory regulation. Therecovery of costs wasunknownto the commonlaw, and no provision oould bemadefor their payment except as expressly authorized by statute. ThLsruie has been one of euch universal application that it has become the simple doctrine of the court that costs are the creation of statutes merely, andthat the allowance of themin any case would depend entirely upon the terms of somestatute. It has also been held that there is no inherent power in the court to award costs ) and that they canbe granted Znany case .or proceeding solely by virtue of express stitutory authority.’

“Continuing, the SupremeCourt of the state Washington, said: Of

“‘The doctrine that costs cannot be awarded except as provided by statute, applies to criminal as well as civil caees. In this respect the character of the proaeedings create8 nodistinction. In State v. Blackburn, 61Ark. 407, 33S. W. 529, where It was sought to charge the aounty with cost8 in a bastardy proceeding, the court, after laying downthe rules that the liability of county for cost8 in criminal prosecutions rest alone on the statute, concludes by saying: "Our conclusion is that noone is boundfor coats, unless rendered so by 8omeporritive provision of law, or as a necessary lmpllcation from provlslon of law; and that neither the state nor the county is bound even by legal provisions, unless it is specifically or by necessary implication namedor referred to therein

.” This rule is supported by the following cases, andseems to be generally accepted as a true rule:

. . .I fThe court here cited numerous supporting decisions.
It is our opinion, therefore, that nojudgment for costs can be awarded against anyone In a proceeding under Article 2338-1. Article 2338-1 also provides in part as follows:HOU.H. C. Petry, page 6 (0-6877)

a* * l

“Sec. 7. Anyperson may, andany peace officer shall, give to the Judge, CountyAttorney, or to the Probation Officer of the county, information Fnhis possession that a child is within the prov3.aiona of this Act. Thereupon the Judge, the CountyAttorney or the Probation Officer shall makeor have made, preliminary inquiry to determine whether the lnterests 

### of the pub110

### or of the child 

### require that further action be taken. If etther the Judge or the County Attorney mhall determine that formal jurisdiction should be acquired, the CountyAttorney shall prepare'and file In the court, or anyattorney may prepare andfile in the court a petition alleging briefly the facta which bring aaid child within the provleions of this Act,

. . .

"Sec. 19. It Lahereby madethe duty of every county, town or municipal official or department, to render all assistance and cooperation,within his or ita jurlsdlctlonal power which mayfurther the objects of this Act.

. . .'I TheDendy case, 175S. W. (2d) 297, above referred to, also holds as follows:

"TheAct in question sets upa complete jurlsdiction andprocedure for hearing such cases andnowhere does it provide that either criminal or civil procedure shall be followed. It Is our opinion that it contemplates a cooperative attempt uponthe part of all the officers of the court in seeing that the best Interest OSthe child is protected in such cases and that he la given every possible advantage for proper training for good citizenship."
It is our opinion that, under the above p~ovlslon of said Juvenile Court Act and the last above quoted holding of the Court Civil Appeals, it is the duty of the county attorney to render all possible assistance in the handling of all cases filed under said Act. Such services muptbe performed, however, without compensation, as noprovision is madeIn said Juvenile Court Act for the payment of fees to the county attorney.

34Tex. JuP., Sec. 105, p. 508, states the rule as to the payment of feea to public officials as follows:Hon. I-I.C. Petry, page 7 (O-6877)

"Statutes prescribing feea SOPpublic officers are atrlctly construed; andhence a right to fees.may not rest In implicatl.on. Wherethis right Is left to construction, the language of the lawmustbe construed in favor of the government. Wherea statute 1s capable of twoconstructions, one of which would give an officer compensation for hla services in addition to his salary and the other not, the latter constructlon should be adopted. It la noconcern of an officer that the Legislature mayhave been toward other offlaers more liberal than toward himin the matter of compensation for services; nor does this fact justify the courts in upholding his claim SOP compensation for services as against a fair andreasonable Interpretation of the statute. In applying these statutes andascertaining the Intent of the Leglslature in the meaning of the statute, the usual methoda andrules of interpretation are applicable.@'
34Tex. Jur., Sec. 107, p. 511, la in p&t as follows:
"Anofficer maynot claim or reach anymoney without a lawauthorizing himto do so, and clearly fixing the amountto which he Is entitled."
As hereinabove set forth, noprovision Is madefor the payment of ajury fee, yet said Act provides that any person interested in any such ease mayappear therein and demanda jury aa in other cases, or that the Judge of the court, of his ownmotion, mayorder ajury to try such case. Article 2123 of said statute provides as follows: "The right to trial byjury shall remain invlolate, subject to the following rules and regulatlons.n
Oneof the regulations following the above Article is that application shall bemadeIn open court SOPajury and certain fees be paid In the district and county courts, but no provision is madein the Juvenile Court Act for the paymentof a jury fee, though ajury maybe demandedor provided for, as above set forth. Article 2122 provides that a juror in a dlstrlct or county court or county court at law shall receive certain compensation for his services, but there is noprovision for the payment of ajuror under the Juvenile Court Act; therefore, said jurors must serve without compensation.Hon. H. C. Petry, page 8 (O-6877)

For your further InformatIon we of our Opinions Nos. 0-5602 and O-6461. enclose herewith copies

Yours very truly,
ATTORNEY

GENERAL

OFTEXAS

APPROVED

OCT25 1945 /a/ Grover Sellers Attorney General of Texas By /a/ Jaa. Ii. Baaaett Jas. W. Bassett Asalstant

JWB:LJ:B encls.

APPROVED OPINION COMMITTEE
BsBWB Chairman