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

County Attorney 

Dlmmit County 

Carrizo Springs, Texas 

Dear Sir: Opinion Ho. O-6877 

Re: If a juvenile employs 

counsel, Is it the duty 

of the county attorney to 

appear when requested by 

the court and present the 

evidence alleging said 

child to be deliaquent? 

And related 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 him in 

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 and what remedy Is 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 and present the evidence 

alleging said child to be a delinquent child? 

@In examining Article 2338, Section 3, I find 

that a separate court known as 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 be 
Hon. 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, 

and in view of the fact that appeals can be taken 

and the Court,ls created, It is my opin%on that 

court cost8 can be assessed either against the dellnquent child, hie parents or guardian. 

“I find in Section 7 of the above Article, that 

It Is the duty of the Judge, County Attorney OF Probation Officer to make prellmiaary inquiry, and, if, in 

their judgment, jurisdiction should be acquired, the 

County Attorney shall prepare and file la the Court a 

petitioe, or any Attorney may file said petition, but 

the law specifically names the County Attorney, and 

It would appear that In view of thie duty being placed 

upon him, it Is his duty to appear and present the 

evidence aDd testimony a8 alleged in the petition. In 

this connection It Is my opinion that the County Attorney 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 may order 

the parent or other responsible person to pay such sum 

as will in whole or la part support such child whether 

committed to the custody of his own parent or other 

person, agency or institution, and find further that 

the court ahall have full power to enforce such judgment for support by civil contempt proceedings after 

10 days notice to parent. It Is my belief from this 

that it was the 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 

and support of the child. 

“I find in Section 21 of the above Article that 

the Appellate Court may provide for a recognizance bead. 

I find in the case of Steed v. State, 183 S. W. (2d) 

458, that the’proceedings are civil and not criminal 

and hence rule of civil proceedings are applicable thereto which would tend to show that court costs could be 

assessed, and If court costs can be asaesaed, then the 

question arises as to the amount of 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 no provision made 

that I can flad to renumerate our expenses for the 

Sheriff who serves the notice, and the Judge who would 

hear the evidence and the County Attorney who must present the evidence, and this becomes an important thing 

in a fee county a8 in this County. Also in a jury case 
Hon. Ii. C. Petry, Jr., page 3 (O-6877) 

the jurors who serve expect to be compensated and It Is 

my opinion that a charge for said jurors should be made. 

"After reading the Juvenile Delinquency Act the 

above questions came to mind and in view of the fact 

that we recently concluded a trial here in which a 

child was found 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 and in further view of the fact that the attorney for the child advised them not to pay costa 

because there Is no provision made under the act for 

the coats, It Is very Important to know whether such 

costs can be assessed against the Parent or child or 

whether the costs must be paid by the County, and if 

80, can Said costs be based in the ssme manner as 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 Re Deady, et al., 175 S. W. (26) 297, 

affirmed by the Supreme Court in 179 S. W. (2d) 269 the Amarillo 

Court of Clvcril Appeals, 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 up a complete jurisdiction and 

procedure for the hearing of juvenile delinquent 

cases and there Is no other law, civil or criminal, 

to govern such cases and situations as defined by 

the Act and placed 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 2 of the Act provides that the 'Act 

shall be liberally construed,' it does not give the 

trial court unlimited authority and power in procedure in such cases. 

'I* * * 

"The Act lo question provides for a jury trial 

when a jury is demanded and authorizes the trial 

court to order a jury on his own motion in such 

cases. Nowhere does the Act provide for the payment of a jury fee and nowhere does It require the 
Hon. H. C. Petry, Jr., page 4 (O-6877) 

trial court to follow civil procedure In demanding 

and impanelllng a jury if and when a jury Is demanded in such cases. + * *' 

Said Article 2338-l contains no provision relative to 

the payment of costs in a proceeding thereunder. 

O-5786, 

In passing upon a similar question our Opinion No. 

wh%ch we here adopt, held in part as follows: 

"The right to costs as of course is purely 

statutory. Costs can be Imposed and recovered only 

in cases where there Is statutory authority therefor. 

Costs, 11 Texas Jurisprudence, 228, para. 2, note 17; 

Costa, 20 Corpus Juris Secundum, page 260, para. 2, 

note34; U. 5. ca8Wdty Company vs. Hampton, (C. A.) 

293 s. w. 260. 

%ecurity for costs must be 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, and under some provisions the matter will rest 

in the sound discretion of the Court. w, 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 juvenile courts; Juvenile Courts and Offenders, 

31 Am. Jr., 808, para. 45, note 9; Infants, 31 C. J. 

1110, para. 24, note 39. 

"In an annotation on 'what is an action within 

the statutes requiring security for costs,' 131 A.L.R. 

1476, there is cited Koble v. People (1877), 85 Ill. 

336, wherein it was held tha,t 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. Magnuson, 

70 Wash. 639, 127 Pac. 302, Ann. Cas. 1914b, page l3 

1912) 

89, 

the Supreme Court of Washington, 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, except the provision authorizing the publication of notice when the 
Hon. 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 _ - _. -. 18 a 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. The awarding and payment of costs 

is purely a matter of statutory regulation. The recovery of costs was unknown to the common law, and no 

provision oould be made for their payment except as 

expressly authorized by statute. ThLs ruie 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, 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 is no inherent power in the court to award 

costs ) and that they can be granted Zn any case .or 

proceeding solely by virtue of express stitutory 

authority.’ 

“Continuing, the Supreme Court 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 no distinction. In State 

v. Blackburn, 61 Ark. 407, 33 S. W. 529, where It was 

sought to charge the aounty with cost8 in a bastardy 

proceeding, the court, after laying down the rules 

that the liability of county for cost8 in criminal 

prosecutions rest alone on the statute, concludes by 

saying: "Our conclusion is that no one is bound for 

coats, unless rendered so by 8ome porritive 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 named or referred 

to therein .” This rule is supported by the following 

cases, and seems to be generally accepted as a true 

rule: . . .I 

f 

The court here cited numerous supporting decisions. 

It is our opinion, therefore, that no judgment 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. Any person may, and any peace o ffic er 

shall, give to the Judge, County Attorney, or to the 

Probation Officer of the county, information Fn his 

possession that a child is within the prov3.aiona of 

this Act. Thereupon the Judge, the County Attorney 

or the Probation Officer shall make or 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 County Attorney shall prepare'and file In the court, or any attorney may 

prepare and file in the court a petition alleging 

briefly the facta which bring aaid child within the 

provleions of this Act, . . . 

"Sec. 19. It La hereby made the duty of every 

county, town or municipal official or department, to 

render all assistance and cooperation,within his or 

ita jurlsdlctlonal power which may further the objects of this Act. . . .'I 

The Dendy case, 175 S. W. (2d) 297, above referred to, 

also holds as follows: 

"The Act in question sets up a complete jurlsdiction and procedure for hearing such cases and nowhere does it provide that either criminal or civil 

procedure shall be followed. It Is our opinion that 

it contemplates a cooperative attempt upon the part 

of all the officers of the court in seeing that the 

best Interest OS the 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 mupt be performed, however, without compensation, as no provision is made In said Juvenile Court Act for 

the payment of fees to the county attorney. 

34 Tex. 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 SOP public officers 

are atrlctly construed; and hence a right to fees.may 

not rest In implicatl.on. Where this right Is left 

to construction, the language of the law must be 

construed in favor of the government. Where a statute 

1s capable of two constructions, 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 no concern of an 

officer that the Legislature may have been toward 

other offlaers more liberal than toward him in 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 and reasonable 

Interpretation of the statute. In applying these 

statutes and ascertaining the Intent of the Leglslature in the meaning of the statute, the usual 

methoda and rules of interpretation are applicable.@' 

34 Tex. Jur., Sec. 107, p. 511, la in p&t as follows: 

"An officer may not claim or reach any money 

without a law authorizing him to do so, and clearly 

fixing the amount to which he Is entitled." 

As hereinabove set forth, no provision Is made for the 

payment of a jury fee, yet said Act provides that any person 

interested in any such ease may appear therein and demand a 

jury aa in other cases, or that the Judge of the court, of his 

own motion, may order a jury to try such case. 

Article 2123 of said statute provides as follows: 

"The right to trial by jury shall remain 

invlolate, subject to the following rules and 

regulatlons.n 

One of the regulations following the above Article is 

that application shall be made In open court SOP a jury and certain fees be paid In the district and county courts, but no provision is made in the Juvenile Court Act for the payment of a 

jury fee, though a jury may be demanded or 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 no provision 

for the payment of a juror 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 OF TEXAS 

APPROVED OCT 25 1945 

/a/ Grover Sellers 

Attorney General of Texas 

By /a/ Jaa. Ii. Baaaett 

Jas. W. Bassett 

Asalstant 

JWB:LJ:B 

encls. 

APPROVED 

OPINION 

COMMITTEE 

Bs BWB 

Chairman