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 ofthe county law library fee inprobation proceedings inthe county court. Dear Mr. Houston: You have requested our opinion as tothe scope and application of article 1702i, V. T. C.S., which provides for the establishment of county law libraries in counties with apopulation of 350, 000 or less and provides further in section 4that: 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 ofthe 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 inany case. Such costs shall be collected by the Clerks ofthe respective Courts in said counties and paid by said Clerks to the County Treasurer, tobe kept by said Treasurer ina 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 ofArticle 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 thejurisdiction ofthe probate court are governed by the Texas Probate Code, enacted in 1955 and effective onJanuary 1, 1956. Prob. Code $2(a). Costs inprobate matters are referred to in section 12 of the Code which provides inpart: (a) Applicability of Laws Regulating Costs. The provisions oflaw regulating costs in ordinary civil cases shall apply toall matters inprobate when not expressly provided for this Code. There is nothing inthe 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. InHogan v. Turland, 428 S.W. 2d 316 (Tex. Sup. 1968), the Supreme Court ofTexas, in defining acivil action or case as opposed to a criminal action, noted, with regard to amandamus proceeding, that [t

# 1 he civil nature ofthe action is demonstrated by the fact that it is not brought by nor inthe name ofthe state.
. . . Accordingly, we are ofthe opinion that the county library fee is taxable as costs inall probate proceedings except where the action is brought by or inthe name ofthe state as where the confinement ofaperson ofunsound mind or a habitual drunkard is sought under the provisions of section 415 ofthe 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 alocal or special law. We also refer you to section 246 ofthe Probate Code which allows the court, inits discretion, to order that “no costs.
. .be charged inconnection with.

. . (a guardianship) proceeding” wherein aguardian is appointed for the sole “purpose of enabling aperson 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 ofarticle 1702i, in all probate proceedings except an action brought for the purpose of confining aperson ofunsound mind or ahabitual drunkard.

Attorney General of TexasThe Honorable Charles D. Houston -page three

Opinion Committee jad:

p.3103