The Honorable Charles D. Houston 

County Attorney 

Austin County 

P. 0. Box 83 

Bellville, Texas 77418 

Opinion No. H- 725 

Re: The taxation as costs of the 

county law library fee in probation 

proceedings in the county court. 

Dear Mr. Houston: 

You have requested our opinion as to the scope and application of 

article 1702i, V. T. C. S. , which provides for the establishment of county 

law libraries in counties with a population of 350, 000 or less and provides 

further in section 4 that: 

For the purpose of establishing County Law 

Libraries after the entry of such order, there 

may be taxed, collected and paid as other costs in 

each civil case, except suits for delinquent taxes, 

hereafter filed in every county or District Court, a 

sum to be fixed by the Commissioners Court of the 

respective counties within the State of Texas, not to 

exceed Five ($5.00) Dollars in each case; provided, 

however, that in no event shall the county be liable 

for said costs in any case. Such costs shall be 

collected by the Clerks of the respective Courts in 

said counties and paid by said Clerks to the County 

Treasurer, to be kept by said Treasurer in a separate fund to be known as “County Law Library Fund.,” 

Such fund shall not be used for any other purpose. 

By resolution your Commissioners Court has set the amount of costs at 

$5. 00. You specifically ask us, 

Are Probate matters, such as the administration of 

estates, the appointment of guardians, and commitments 

to the state hospital, “CIVIL CASES” within the meaning 

of Article 1702i, and should the library fee of $5. 00 be 

taxed as costs therein? 

/ 

p. 3101 
. . 

The Honorable Charles D. Houston - page two (H-725) 

Proceedings within the jurisdiction of the probate court are governed by 

the Texas Probate Code, enacted in 1955 and effective on January 1, 1956. 

Prob. Code $ 2(a). Costs in probate matters are referred to in section 12 of 

the Code which provides in part: 

(a) Applicability of Laws Regulating Costs. The 

provisions of law regulating costs in ordinary civil 

cases shall apply to all matters in probate when not 

expressly provided for this Code. 

There is nothing in the Code which covers costs for county law libraries 

and the cost provision of 1702i would therefore apply to probate proceedings 

except where otherwise interpreted and limited by the Courts of Texas. 

In Hogan v. Turland, 428 S. W. 2d 316 (Tex. Sup. 1968), the Supreme 

Court of Texas, in defining a civil action or case as opposed to a criminal 

action, noted, with regard to a mandamus proceeding, that 

[t 1 he civil nature of the action is demonstrated 

by the fact that it is not brought by nor in the name 

of the state. . . . 

Accordingly, we are of the opinion that the county library fee is taxable as 

costs in all probate proceedings except where the action is brought by or in the 

name of the state as where the confinement of a person of unsound mind or a 

habitual drunkard is sought under the provisions of section 415 of the Code. But 

see Ex Parte Carson, 159 S. W. 2d 126 (Tex. Crim. App. 1942), holding an earlier 

Gcket bill relating to library fees to be a local or special law. 

We also refer you to section 246 of the Probate Code which allows the court, 

in its discretion, to order that “no costs. . . be charged in connection with. . . 

(a guardianship) proceeding” wherein a guardian is appointed for the sole “purpose 

of enabling a person to receive public assistance which is contingent upon need 

!I 

, . . 

SUMMARY 

The county law library fee provided by article 

1702i. V. T. C. S., may be taxed as costs, within 

the meaning of article 1702i, in all probate proceedings except an action brought for the purpose 

of confining a person of unsound mind or a habitual 

drunkard. 

Attorney General of Texas 
The Honorable Charles D. Houston - page three 

Opinion Committee 

jad: 

p. 3103