ORNEY GENERAL

TEXAS

HonorableRamie H. Griffin CriminalDistrict Attorney County Courthouse Jefferson County Beaumont, Texas OpinionNo. ww-512

Re: Can a Plaintiffwho makes a costs deposit pursuant to Rule 146, Texas Rules of Civil Procedure,and later prevails In the trial of his case with all costs assessed against the Defendant from whom the District Clerk cannot collect said costs, recoverhis costs deposit? If so, what recoursedoes the District Clerkhave in the event portions of the deposit have been paid Into the CountyTreasury? Dear Mr. Griffin:-

Your recent request foran opinion from this office sets out two questions. They are as follows:

1. Where the Plaintiff In a civil suit has made a costs deposit with the District Clerk pursuant to Rule 146, Texas Rules of Civil Procedure,and upon trial of the cause judgment Is rendered In favor of Plaintiff with all costs assessed against Defendant, and the District Clerk 1s unable to collect such costs from the Defendant, can the Plalntiff recover the costs deposit?
2. If Plaintiff can recover the costs deposit under the clrcumstanoesoutlined above, what recoursehas the District Clerk in the event portions of,the deposithave been paid into the CountyTreasury?- .

Honorable Ramle H. Griffin, Page 2, (W-512)

Several Texas Rules of Civil Procedure set out each party's responsibility for court costs. They are as follows:

"Rule 125. PartiesResponsible. Each party to a suit shallbe liable to the officers of the Court for all costs incurredby himself. ",Rule 127. PartiesLiable for Other Coats. Each party to a suit shallbe liable for all costs incurredby him. If the costs cannot be collected from the party against whom theyhave been adjudged, executionmay Issue against any party In such suit for the amount of costs lncurred by such.party,but no more. "Rule 142. Security for Costs. The clerk may require,from the.plaintiff security for costs before Issuingany process,but shall file the petition and enter the same on the docket

. . . . "Rule 143. Rule for Costs. The plaintiff ma,y be ruled to.glve security for costs at any time before final judgment,upon motion of the defendant or any officer of the court interested in the costs accruing in such suit

. . . . "Rule 146. Deposit for Costs. D-l lieu of a bond for costs, the party required to give then samemay deposit with the clerk of court or the justice of the peace such sum,asthe court or justice from time to timemay:deslgnate as sufficient to pay the accrued costs.
'Rule 149. When costshave been adjudged against a party and are not paid, the clerk or justice of the court in which the suit was determinedmay Issue execution,accompaniedby an Itemizedbill of costs, against such party to be levied and collectedas in.other.caees;and said officer, on demand,ofany party to whom any such costs are due, shall,issue execution for costs at once. . . .)t
The rules are clear. Each party is responsible to the Court for the costs Incurredby him,in any civil suit. A deposit or bond~may be required of each party~~to, InsurepaymentHonorable Ramle H. Griffin, Page 3, (WW-512)

of these costs. Assessment can be made agalnst the required depOBit or bond for two purposes.

First, the losing party maybe assessed all costs of the suit. The bond or depositmay be levied against for these oosts. Secondly, if the costs cannotbe collectedby the ,Courtfrom the party agalnstwhomthey amc assessed* then the prevailingparty Isliable for those costs incurredby hti, but he Is liable for no more. ,

we quote from DOSS, et al; Y. Chambers; et al., 

## 188 s.bl. 296, Clv.App. 1916, no writhistory:

"The genernlrule In ,clvll,casesla that, when an appellant obtains ,ajudgment in the appellate court,deciding the' case on its merits inhis favor, he **tiso** obtains a judgmentagainsthis adversary for all the costs; but, PI no costs CM be collectedfrom the adverse party, he is liable to the ~mfflcess of the several. courts for the costs incurredby him."

It is the opinion of this office, that nhen the Plalntiff in a civil suit has made a costs depositaulththe District Clerkpursuant to Bule 146, TexasRules of Civil Procedure,and judgment Is rendered inhis favorwith Defendantbeing assessed ,a11costs, Plaintiff is entitled to recoverhiscosts deposit. When, as in the instant case, costs cannot be collected from the party against wfiom they have been assessed, the Plaintiff Is liable to the Court for 'thosecostsincurred by him. Afterhis costshav.e been deduetedhe,is entitled to recove~r the rema%nd,er

of the deposit.
A~ttorney

General's Opinion O-4948 (1942) spoke regarding questions related to those propoundedby you. That opinion described the funds collectedby county offlelals, ineluding court costs deposits collectedby theDistrict Clerk, as trust funds. We sub,scribe to that ,view. Orme theamount of the excess costs deposithas been established,that is sufficient to constitutea legitimate claim against the county In that ,amount.

Therefore, it is our opinion thatinthe eventportions of the deposithave been paid into the CountyTreasury, the Plstrlct Clerk'srecourse would be to presenthis claim for the

.Honorable Ramie H. Griffin, Page 4, (W-512)

excess amountof the deposit against the County. In doing this, the District Clerk would follow those procedura1,rule.s which have been adopted by the Commissioner'sCourt in the county wherein the,clalm isbeing presented.
SUMMARY
Where the Plaintiff in a civil suithas made a costs,deposltwith the District Clerk pursuant to Rule 146, Texas Rules of Civil Procedure,and upon trial of the cause judgment is rendered In favor of Plaintiffwith all costs assessed against Defendant, and the Dlstrict Clerk is unable to collect such costs from the Defendant, the Plalntlff can recover the costs deposit after those costs accruing to him have been deducted.

In the eventportions of the deposit have been paid into the County Treasury,, the District Clerk9 recoursewould be to present his claim against the County according to the rules of,procedurewhich have been adopted by the Commissioner's Court In the County where the claim is presented. Very truly yours,
WILL WILSON ATTORNEY GENERAL OF TEXAS

BF:,bb APPROVED 

## + &d BY: Byron Fullerton Assistant

OPINION COMMITTEE
Geo. P. Blackburn, Chairman Milton Richardson Morgan Nesbitt Leon Pesek Clyde Kennelly REVIEWED FOR THE ATTORNEYGENERAL BY: w. v. GEPPERT