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October 10, 1960 

I&. J. S. Grisham Opinion No. WW-947 

Criminal District Attorney 

Canton, Texas Re: Liability of State for 

Attorneys' Fees in 

Condemnation Suits by 

Dear Mr. Grisham: Counties 

We have received your letter in which you request an 

opinion on the question stated by you as follows: 

"Is it proper for the County to bill the State of Texas 

for 502 as for the attorney's fees actually expended 

as part of the court' cost in the.defense and/or prosecution of a condemnation case in the acquisition of 

gland in the c.onstruction or improvement of's state 

highway through Van, Zandt County?" 

.The answer to this question involves a construction of 

House Bill 620, Chapter 301, Acts of the 55th Le islature, 

Regular Session, 1957, Page 731 (V.A.C.S. Art. 6 % 73e-l), 

the'pertinent provisions of which read as follows: 

"In the acouisition of all rights of way authorized end 

requested by the Texas Highway Department, in cooperation with local officials, for all highways designated 

by the State Highway Commission as United States or 

State Highways, the Texas Highway Department is authorized and directed to pay to the counties and cities 

not less than fifty.per cent (50%) of the value as determined by the Texas Highway Department of suchrequested 

right of way, or the net cost thereof, whichever is the 

lesser amount; provided, that if condemnation is necessary, the participation by~the Texas Highway Department 

shall be based on the final judgment, conditioned that 

such Department has been notified in writing prior to 

the filing of such suit and prompt notice is also given 

as to all action taken therein. Such Department shall 

have the right to become a party at any time for all 

purposes, includin the right of appeal at any stage of 

the proceedings." -7 emphasis added) 

In a letter froin the County Judge of Van Zandt County 

attached to your letter, it is stated that it is understood 

that it is not. the legal obligation ofthe County and/or 
&Ii-, J. S. Grisham, Page 2 (WW-947) 

District Attorney to represent the Stake ;~:d Coun%y as a 

part of his official duties in condemnations suits to acquire 

rights of way for the highways above mentioned. 

No. WW-929 dated September 2, 

(See Opinion 

1960.) The same letter also 

states that the Texas Highway Department has agreed to pay 

fifty per cent (50$) of the court costs assessed against 

the County in condemnation suits to acquire such rights 

of way but will not participate in the payment of attorneys' 

fees. 

We are concerned with only the items in which the 

Highway Department is required to participate as provided 

by the above'statute. 

It is to be noticed that under this statute the 

Highway Department is required to participate in the payment for rights of way as follows: 

(1) If the property is purchased, it is required to pay 

the counties and cities notless than fifty per cent (50$) 

of the value as determined by the Texas Highway Department 

of such-t cf.my or the net costthereof, whichever is the 

lesser amount. 

(2) If it is necessary to file a suit to condemn the 

land, the participation (50$) .shall be based upon the final 

judgment but conditioned that the Highway Department has been 

notified in writing prior to the filing of such suit and 

prompt notice is also given as to all action taken therein. 

Since participation in a condemnation suit is based on 

the judgment, the amount of court costs adjudged against the 

State will be a part of the judgmentThe sole question, therefore, is whether the attorneys* 

fees expended by.the County' are a part of the court costs. 

In15 Tex Jur 2d, 51-56, it is said! 

Y3ection 440 

ltAt&ney fees may be taxed as costs in favor of a 

stakeholder, or in a suit of interpleader, but a litigant is not liable to his adversary for any sum expended 

by the latter as attorney fees, except in those cases 

where the legislature has otherwise provided by statutory enactment, or where.the contract so provides." 

"Section 459 
Mr. J. S. Grisham, Page 3 (WW-947) 

"Various statutes provide for the recovery of attorney 

fees in certain situations, although not all of the 

statutes provide that they are recoverable as costs. 

Among situtations where they are recoverable are in 

suits on an insurance policy; suits for partition; 

garnishment proceedings; and actions involving service by publication and the appointment of an attorney 

to defend the party failing to appear. And any person 

having a valid claim against a person or corporation, 

founded on a sworn account or sworn accounts, or for 

personal services rendered, labor done, material furnished, overcharges on freight or express, lost or 

damaged freight or express, or stock killed or injured; 

may, if the claim is presented and not paid within 

thirty days after presentment, recover, on obtaining 

a final judgment a reasonable amount as attorneys' 

fees, if represented by an attorney." 

There are also. various statutes and court rules allowing 

recovery of attorneys' fees as part of the court costs. See 

V.A.C.S. Article 7345b(6), Rules 173, S&l+, and 759 Texas Rules 

of Civil Procedure. 

We find no applicabie 

for recovery of attorneysT 

statute or court rule providing 

fees in condemnation suits either 

as a ,matter of recovery in a judgment or as court costs. 

The case of State v. Dyches 28 Texas 536 (1866) was asuit where a recovery was had against sureties on a bail 

bond for the amount of the bond and costs. The Governor 

remitted the judgment except as to costs. No commissions 

for the attorneys representing the S,tate ani.County were 

included in the execution for the costs and said officials 

filed a'motion to retax the costs to include such commissions, 

which motion was overruled. In approving the action of the 

lower court, the Supreme Court said: 

Y'he motion in this case, it is believed, is.based 

upon a misapprehension of the rights of the parties. 

The clerk had no right to tax, as partof~the cost in 

this cause, the amount of~the commissions which might 

become due to the attorneys representing the state, 

on receipt of the money for which judgiuent has been 

rendered in behalf of the state. The commissions 

which might become due to the officers on collecting 

the judgments are not costs to be taxed against the 

defendants. 

"Costs are 'the expensea of a suit or action which may 

be recovered by law from the losing party.? 1 Bouv. 

Law Die. 231. Costs which are incurred in prosecuting 
Xr- J. S. Grisham, Page 4 (W-947) 

an action are usually adjudged against the losing 

party, in addition to the principal sum which may be 

adjudged against him. 

which might have become 

Commissions in this case, 

due to the attorneys if the 

moneys had been collected, should have been taken from 

the money so collected, and we.have said the cornmisSions 

did not become due until the money was received." 

In Johnson%. Universal Life & Acc.id~eot Ins 

~Tex.'435, 94 S.W. 2d 1145 (1936) the court co&&% 127~ 

Article 4736 R.C.S, 1925 (now Se&ion 3?2 InsuranEe Code) 

which provides that a policy holder may recover attorneys' 

fees which shall be taxed as a part of the costs in the case. 

A question of jurisdiction arose. If the attorneys' fees 

were considered as a part of the costs, the Court would not 

have jurisdiction, but if such fees were considered as a 

part of the amount in controversy, the Court would have 

jurisdiction. The Court held that the trial court did 

: have ~jurisdiction and said: .- 

"By the term 'costs' is generally understood the fees 

or compensation fixed by law collectible by the offi- 

-cers of court, witnesses, and such like items, anddoes 

not ordinarily include attorney's fees, which are 

recoverable only by virtue of contract or' statute. 

ll.Tex.Jur. p. 320; People of Sioux.County v* National 

Surety Co., 276 U. S. ~238, .48 S.Ct. 239, 72'L,Ed, 547." 

We find no Texas authorities on the question as to 

whether attorneys' feesin condemnation suits constitute a 

part of the court costs, but the authorities in other 

jurisdictions seem abundant,, 1 

The case of Tomten v. Thomas 232 Pac. 2d. 72S3 26 A.L.R, 

2d 1285 (Montana Supreme Court, 1951) was a condemnation 

suit involving attorneys', fees. The statute involved provided that the amount of damage shall be determined by a 

jury and %uch amount, together with the expenses of the 

proceeding shall be paid by the person to be benefited." 

The cost bill included an item of $750000 for,attorneys* 

fees for defendants' counsel, This item was disallowed 

on plaintiff's motion to retax the costs. In holding 

that the attorneys' fees were not properly charged 'as 

costs, the Court said: 

'ITo make the item of attorneys' fees allowable as a 

taxable cost under section 93-8618 it must first be 

shown that such item is either 9taxable according to 

the course and practice of the court, or by express 

provision of law.? No such showing was made, None 
Hr. J. S. Grisham, Page 5 (WW-947) 

can be made. The item is a contract obligation of the 

losing defendants for which the prevailing plaintiff 

is not liable. 

"The person to be benefited by the opening of the road 

is the prevailing plaintiff who is required to pay the 

amount of damage determined by the jury 'together with 

the expenses of the proceeding'. Section 93-9923. 

"The teim (exuenses' as emuloved in sections 32-1401 

and 93-9923, kpra, is synonymous with the term 'costs.' 

"In Chapin v. Collard, 29 Wash 2d 788, 

the court said: 

189 P2d 642, 646, 

*‘(We have repeated1 held that 'costs' do not include 

attorneys* fees (ot K er than statutory) 

In Fiorito vi Coerig, ng Wash 

or accountants' 

fees. 

P2d 316, 318, we said: 

pd 6lY, 179 

II "*The term 'costs' is synonynlous with the.teq 

'expense.' Costs are-allowances to a party for the 

expense incurred in prosecuting or defending a suit, 

and the word ?costs' in the absence of statute or agree-. 

ment does not include counsel fees; in other words, 

counsel fees.are not costs or recoverable expenses 

incurred in prosecuting or defending, a suit, either in 

suits in equity or actions at law.!" n 

The Court, in the above decision, cites several decisions in condemnation cases which hold that attorneys' fees 

etc.., R. R. 

& w. 

14 Am Jur, 

iin, Section~386, 

The court. concludes its opinion with the following 

langucge: 

"In Ball v. Vason, 56 Ga 264, 267, it is said: *Let 
Mr. J. S. Grisham, Page 6 (WW-947) 

every man pay his own counsel, 

and expenses, were never meant b; ehfs 

The words, costs 

court to apply 

to fees* A.fair construction will not make them mean 

fees . o :* 

"All authorities agree that attorneys' fees are not 

taxable as part of the costs in an action unless 

specifically authorized by statute. In this state 

there is no provision of.Constitution or statute that 

makes the prevailing plaintiff in this action liable 

for the payment. of the attorneys' fees owing by his 

opponents to their counsel. We find no merit 'whatever 

in the appeal and appellants will stand their own 

costs thereon." 

In the anotatiogsat Page.1296 of A.L,R. 2d it is said: 

"With few exceptions, the courts in the cases in 

which the question has arisen have construed condemnation statutes which provided for payment of 'costs,' 

'expenses, ('just compensation,1 and the like, without-. 

making any express stipulation as regards attorneys 

fees, as not intendingto provide for the payment of 

such fees, these not being part pf the costa, expenses, 

or just.compensationo8' 

In view of the above, we answer yourquestion in the 

negative. 

Attorneys' fees &r condemnation suits are not a part of 

court costso The State Highway Department is not required 

under Article 6673e-1 VoA,&,So.to participate-in payment of 

attorneys' fees expended by counties and cities in the acquisition of rights of way for State and United Stat;hs highways. 

Yours very truly, 

WILL W!ILSON 

APPROVED: 

OPINION COMMITTEE 

W.'V, Geppert, Chairman 
Hr. J. S. Grisham, Page.7 (W-947) 

Richard Wells 

Thomas Burrus 

C. K. Richards 

Bob Rotiland 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonatid.Passmoke