Honorable Bert Ford, Administrator

Texas Liquor ContorlBoard Austin, Texas

Dear Sir: OpinionNo. O-2724 Be: Authority of, Texas Liquor Control Board to pay court costs in lnjunctlon suits.

Your request for opinionhas been received and fully consideredby this department. We quote from your ter of request as follows:

"Asyou are no doubt aware, this Board frequently calls upon your office to file injunction suits to restraln offenders against the State Liquor Law from further violations and, where circumstanceswarrant, to padlock affected premises. These suits are all, of course, brought under the provisions of the Texas Liquor Control Act, Sections 29 and 42, Article I, and Section 27, Article II.

"Instanceshave arisen where the State has succeded in obtalnlngpermanent injunottonsand costs in the cases assessed against defendants who have been unable to pay such costs. This situationhas brought about conslderablc complaint
on the part of local officers as to the practice of the State in filing these InjunctFveproceedings without guarantee of costs and has proven a decided handicap in the prosecution of cases In various sectFons of the State.

'We have an appropriation included in our current budget providing for court costs and witness fees, which lt was anticipatedwould be required in the prosecution of these suits. The prosecution of injunction suits Is an extremely importantfunction and vital to the enforcement of~the Texas Liquor ControlAct. In those instanceswhere it is impossibleto collect the costs from the defendants It Is desired to pay such costs from our available appropriation, in carelet-Honorable Bert Ford, Administrator,page 2 O-2724

order to facilitate the ready prosecution of these types of cases.

"Youropinion is respectfullyrequested as to whether the Board has legal authorltg to guarantee and to pay locally uncollectible court costs In these injunction suits."

Section 29 of Article 666, Vernon's Annotated Texas Penal Code, reads as follows:

"Anyroom, building, boat, structure, or place of any kind where liquor is sold,manufactured, bartered, or given away In violation of this Act, or of any rule, or regulation of the Board, or where persons are permitted to resort for the purpose of drinking liquor in violation of the law, or any placewhere such beverages
are kept for sale, barter, or gift in violation of law, and all liquor and all property kept and 

### used in said place, hereby are declared to be a common nuisance and any personwho maintains
or assists inmaintaining such common nuisances, shallbe guilty of a violation of this Act. Any county, or district attorney, or the Board, or any agent or employee of thI.a Board in the county where such nuisance exists, or iskept,
or maintained,may maintain an action by injunction in the name of the State, or the Board to abate and to temporarilyand permanently enjoin such nuisances. Such proceedings shall be guided by the rules of other injunctionproceedings, except that the plalntiff shall not be required to give bond in such action and upon final judgment against the defendant the Court shall order that said room, house, building, structure,boat,
or place of any kind shallbe closed for a period of one year, or closed for a part of said time and until the owner, lessee, tenant, or occupant thereof shallgive bond with sufficient surety, to be approvedby the Court making th8 order, in the penal sum of not less than One ThousandDollars ($1,000)payable to the State, and conditioned that liquorwill not thereafter be manufactured,possessed, sold,bartered, or given away, or furnished, or otherwisedFsposed of therein, or kept thereon, or therein,with the intent to sell, barter, or give away, or otherwise dispose of same contrary to law, and that he will pay all fines, costs, and damages assessedHonorable Bert Ford, Administrator,page 3 O-2724

against him for any violation of this Act. If any conditions of suchbona be violated the whole amount may be recovered as a penalty for the use of the countywherein the premises are situated."

Section 27 of Article 667, Vernon's Annotated Texas Penal code, reads as follows:

"Uponhaving called to his attention by affidavit of any credible person that any person is violating, or is about to violate, any of the provisions of the Texas Liquor ControlAct or if any permit or licensewas wrongfully issued, it shallbe the duty of the Attorney General, or theDistrict or CountyAttorney, to begin proceedings to restrain any such person from the threatenedor any further violation, or operation under suchpermit or license, and theDistrict Judge shall have authority to issue restraining orderswithout hearing, and upon notice and hearing to grant injunction,to prevent such threatened or further violationby the person complained against, and may require the person complaining to file a bond in such amount and containing such conditions and in such cases as the Judge may deem necessary. Upon any judgmentof the Court that violation of any restraining order
or injunction Fssued hereunder has occurred, such judgment shall operate' to cancelwithout further proceedings,any license or permit held by the person who is defendant i'n the proceedings, and
no license or permit shallbe reissued to any person whose license or permit has been so cancelled, revoked, or forfeitedwithin one year next preceding the filing of his application for
a new license or permit. It shall be the duty of theDistrict Clerk to notify the County Judge of the county wherein was Issuedany license or permit 

### SO cancelled,and to notify the Board of any judgmentof a Courtwhich may operate hereunder to cancel a license or permit."

Article 2072,Vernon's Annotated Texas Clvll Statutes, reads as follows:

"MO security for costs shall be required of the State or of any incorporatedcity or town in any action, suit or proceeding, or of an executor, admlnistratior or guardian appointed by a court of this State in any,,suit brought by him in his fiduciary character.Honorable Bert Ford, Administrator,page 4 O-2724

Article 2052,Vernon's Annotated Texas Civil Statutes, reads as follows:

"Eachparty to a suit shallbe llable'for all costs incurredby him. If the costs cannot be collected from the party againstwhom they have been adjudged, executionmay issue against any party in such suit for the amount of costs Incurredby such party, but no more.”

11 Texas Jurisprudence,Costs - Section 40, pages 292-3, reads ln part as follows:

"It is enacted that each party to a suit shall be liable for all costs 'incurred'by him. Accordingly it has been held that an Item of costs is not taxable unless It has been 'in curred'by the party sought to be charged therewith. The word 'incurred'as used in the above enactment has been held to mean 'broughton,' 'ocasioned'or 'caused.' A partymay be sala to have 'incurred'the costs if they are the necessary and contemplatedresult of his conduct in the proceeding, such as the costs incurred by a plaintiff suing a minor for the services of a guardian ad litem, and the issuanceand service of all process requisite to bring the defendantsbefore the court. But expenseswhich may or may not be necessary for a defendant to incur in order to present and protect his rights - such as fees to clerks, sheriffsand othermlnisterlalofficers,witness fees, and other like items - though remotely induced by the fact that
a suit is brought,may not, however,be said to have been 'incurred'by the plaintiff."

We quote from the case of Reed vs. State, 78 SW (2d) 255 (AustinCourt of Civil Appeals), (Writof error dismissed), as follows:

"Theunpaid costs in said casewere taxed against the state. No contention is made that such costs are unreasonablenor that they
were not authorized. The Attorney General by cross-assignmentcontends,however, that no authority exists In law for taxing costs against the state,whether it be plaintiff or defendant,
orwhether it be sucessfulor not. That seems to be the concluslohreached by the El Pa,so Court of CivilAppeals in Pope v. State, 56 S.W.Honorable Bert Ford, Administrator,page 5 O-2724

(26) 492, following the general rule announced in 59 C. J: 332, and 25 B.C.L. 418. It has been the uniform custom, however,where the state has been a proper.party to a suit, to tax costs against it as against any other litigant. Weceasarlly,payment thereofmust await appropriations of funds for that purpose by the Legislature, but such appropriationshavs habitually be4n made by each Legislature for'mamy years. The~~right and propriety of taxing such costs against the state as a party litigant is,we think, conclusively foreclosedby the Supreme Court In Houtchens v. State, 74 S.W. (2d) 976; that being
an opinion on motion to tax the coats against the state and the only issue there preasnted.

"Thegeneral rule is that,when the state enters the courts as a litigant, itplaces it,- self on the samebasis as a#syother litigant; While granted immunitiea~ no,t available to litigants generally, e. g., the ,:+%ghtto be sued only with its consent, not required to give bona, freedom form executionagainst it, etc.,with the ever-increasingnumber of suits to which the state is a party, frequentlyupon it8 own initiative, itwould be a harsh rule to saythat the officers of the court should be compelled to render to the statewithout compensation indispensable services, no matter how on4cous they might be...,."

The departmentalappropriation for the current biennium shows the following appropriation for court costs, etc. for the Texas Liquor Control Board, samebeing Section 9 under the heading "Maintenanceand Miscellaneous , to-wit: "Fq.rthe August 31,'1940. years 

### enam August 31, 1941 $9

................ “9

. 

### Courtcosts,Witness fees and Contingent Expenaea..........$27OO~OO $2700.oon

Of course, the Texas Liquor Control Board is not required to give bona for costs and execution for coat8 can not be levied against it, as it is a Stat4 agsncg. It is also fundamental law that the Texas Liquor ControlBoard cannot expendmoney with.out an.appropriation ,madethersfor by the Legislature._ .. .

Honorable Bert Ford, AdmLnLstrator,page 6

the Texas However, It is the opinion of this department that

Liquor Control Board is authorized to pay court O-2724

costs incurredby It In Injunction suits brought under the Texas Liquor ControlAct, in cases where costs cannot be collected from defendants as outlined In your letter,provided such expenditure iswithin the appropriations set out above.

Trusting that this satisfactorilyanswers your lnquirg, wd are
Very truly yours

ATTORNEYGENERAL OF TEXAS

By s/Wm. J. Fanning Wm. J. Fanning Assistant

WJF:AW:wc

APPROVED SEP 25, 1940 s/GeraldC. Mann ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BWB Chairman