Honorable Bert Ford, Administrator 

Texas Liquor Contorl Board 

Austin, Texas 

Dear Sir: Opinion No. O-2724 

Be: Authority of, Texas Liquor Control 

Board to pay court costs in lnjunctlon suits. 

Your request for opinion has been received and 

fully considered by this department. We quote from your 

ter of request as follows: 

"As you 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 

circumstances warrant, 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. 

"Instances have arisen where the State has 

succeded in obtalnlng permanent injunottons and 

costs in the cases assessed against defendants 

who have been unable to pay such costs. This 

situation has brought about conslderablc complaint 

on the part of local officers as to the practice 

of the State in filing these InjunctFve proceedings 

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 anticipated would be required in the prosecution of these suits. The 

prosecution of injunction suits Is an extremely 

important function and vital to the enforcement 

of~the Texas Liquor Control Act. In those instances where it is impossible to 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. 

"Your opinion is respectfully requested 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: 

"Any room, 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 place where 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 person who maintains 

or assists in maintaining such common nuisances, 

shall be 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 is kept, 

or maintained, may maintain an action by injunction in the name of the State, or the Board to 

abate and to temporarily and permanently enjoin 

such nuisances. Such proceedings shall be guided 

by the rules of other injunction proceedings, 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 shall be closed for a 

period of one year, or closed for a part of said 

time and until the owner, lessee, tenant, or 

occupant thereof shall give bond with sufficient 

surety, to be approved by the Court making th8 

order, in the penal sum of not less than One 

Thousand Dollars ($1,000) payable to the State, 

and conditioned that liquor will not thereafter 

be manufactured, possessed, sold, bartered, or 

given away, or furnished, or otherwise dFsposed 

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 assessed 
Honorable Bert Ford, Administrator, page 3 O-2724 

against him for any violation of this Act. If any 

conditions of such bona be violated the whole amount may be recovered as a penalty for the use of 

the county wherein the premises are situated." 

Section 27 of Article 667, Vernon's Annotated Texas 

Penal code, reads as follows: 

"Upon having 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 Control Act or 

if any permit or license was wrongfully issued, 

it shall be the duty of the Attorney General, or 

the District or County Attorney, to begin proceedings to restrain any such person from the 

threatened or any further violation, or operation under such permit or license, and the District Judge shall have authority to issue restraining orders without hearing, and upon notice 

and hearing to grant injunction, to prevent such 

threatened or further violation by 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 judgment of 

the Court that violation of any restraining order 

or injunction Fssued hereunder has occurred, such 

judgment shall operate' to cancel without further 

proceedings, any license or permit held by the 

person who is defendant i'n the proceedings, and 

no license or permit shall be reissued to any 

person whose license or permit has been so cancelled, revoked, or forfeited within one year 

next preceding the filing of his application for 

a new license or permit. It shall be the duty 

of the District Clerk to notify the County Judge 

of the county wherein was Issued any license or 

permit SO cancelled, and to notify the Board of 

any judgment of a Court which 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 incorporated city 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: 

"Each party to a suit shall be llable'for 

all costs incurred by him. If the costs cannot be collected from the party against whom 

they have been adjudged, execution may issue 

against any party in such suit for the amount 

of costs Incurred by 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 'brought on,' 

'ocasioned' or 'caused.' A party may be sala 

to have 'incurred' the costs if they are the 

necessary and contemplated result 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 issuance and service of all process requisite to bring the defendants before the court. But expenses which 

may or may not be necessary for a defendant to 

incur in order to present and protect his rights - 

such as fees to clerks, sheriffs and other mlnisterlal officers, 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 (Austin Court of Civil Appeals), (Writ of error 

dismissed), as follows: 

"The unpaid costs in said case were taxed against the state. No contention is made 

that such costs are unreasonable nor that they 

were not authorized. The Attorney General by 

cross-assignment contends, however, that no 

authority exists In law for taxing costs against 

the state, whether it be plaintiff or defendant, 

or whether it be sucessful or not. That seems 

to be the conclusloh reached by the El Pa,so 

Court of Civil Appeals 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 thereof must await appropriations 

of funds for that purpose by the Legislature, 

but such appropriations havs 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 foreclosed by 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. 

"The general rule is that, when the state 

enters the courts as a litigant, it places it,- 

self on the same basis as a#sy other litigant; 

While granted immunitiea~ no,t available to litigants generally, e. g., the ,:+%ght to be sued only 

with its consent, not required to give bona, 

freedom form execution against it, etc., with 

the ever-increasing number of suits to which 

the state is a party, frequently upon it8 own 

initiative, it would be a harsh rule to saythat 

the officers of the court should be compelled 

to render to the state without compensation indispensable services, no matter how on4cous they 

might be...,." 

The departmental appropriation for the current biennium shows the following appropriation for court costs, 

etc. for the Texas Liquor Control Board, same being Section 

9 under the heading "Maintenance and Miscellaneous , to-wit: 

"Fq.r the 

August 31,'1940. 

years enam 

August 31, 1941 

$9 . . . . . . . . . . . . . . . . 

“9 . Court costs, Witness fees and 

Contingent Expenaea..........$27OO~OO $2700 .oo n 

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 Control Board 

cannot expend money with.out an.appropriation ,made thersfor 

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 incurred by It In Injunction suits brought under the 

Texas Liquor Control Act, in cases where costs cannot be collected from defendants as outlined In your letter, provided 

such expenditure is within the appropriations set out above. 

Trusting that this satisfactorily answers your lnquirg, wd are 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By s/Wm. J. Fanning 

Wm. J. Fanning 

Assistant 

WJF:AW:wc 

APPROVED SEP 25, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman