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October 10, 1960

I&. J. S. Grisham Opinion No. WW-947 Criminal District Attorney Canton, Texas Re: Liabilityof State for Attorneys'Fees in Condemnation

Suits by Dear Mr. Grisham: Counties
We have receivedyour letter in which you request an opinion on the question statedby you as follows:
"Is it proper for the County to bill the State of Texas for 502 as for the attorney'sfees actually expended as part ofthe court' cost in the.defenseand/or prosecution of a condemnationcase in the acquisitionof gland in the c.onstruction or improvementof's state highway through Van, Zandt County?" .The answer to this question involves a constructionof 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

provisionsof which read as follows:
"In the acouisitionof all rights of way authorizedend requestedby the Texas Highway Department, in cooperation with local officials,for all highways designated by the State Highway Commissionas 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 Departmentof suchrequested right of way, or the net cost thereof,whichever is the lesser amount; provided, that if condemnationis necessary, the participation by~the Texas Highway Department shallbe based on the final judgment, conditionedthat such Departmenthas 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 attachedto your letter, it is stated that it is understood that it is not.

the legal obligationofthe County and/or&Ii-,

J. S. Grisham, Page 2 (WW-947)

DistrictAttorney to representthe 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$) of the court costs assessed against the County in condemnationsuits to acquire such rights of way but will not participatein the payment of attorneys' fees.
We are concernedwith only the items in which the HighwayDepartment is required to participateas provided by the above'statute.
It is to be noticed that under this statute the Highway Department is required to participatein the payment for rights of way as follows: (1) If the property is purchased,it is required to pay the countiesand cities notless than fifty per cent (50$) of the value as determinedby the Texas Highway Department of such-t cf.my or the net costthereof, whichever is the lesser amount. (2) If it is necessaryto file a suit to condemn the land, the participation (50$) .shall be based upon the final judgment

but conditionedthat the Highway Departmenthas been notifiedin writing prior to the filing of such suit and promptnotice is also given as to all action taken therein. Since participationin 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! Y3ection440 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 adversaryfor any sum expended by the latter as attorney fees, except in those cases where the legislaturehas otherwiseprovided by statutory enactment,or where.the contract so provides." "Section459Mr. J. S. Grisham, Page 3 (WW-947)

"Variousstatutesprovide for the recovery of attorney fees in certain situations, althoughnot all of the statutesprovide that they are recoverableas costs. Among situtations

where they are recoverableare in suits on an insurancepolicy; suits for partition; garnishment

proceedings;

and actions involving service by publicationand the appointmentof 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 servicesrendered,labor done, material furnished, overchargeson freight or express, lost or damaged freight or express,or stock killed or injured; may, if the claim is presentedand not paid within thirty days after presentment, recover, on obtaining a final judgment a reasonableamount as attorneys' fees, if representedby an attorney." There are also.

various statutes and court rules allowing recoveryof 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 recoveryof attorneysT statute or court rule providing fees in condemnationsuits 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 recoverywas had against sureties on a bail bond for the amount of the bond and costs. The Governor remittedthe judgment except as to costs. No commissions for the attorneysrepresentingthe S,tate ani.County

were includedin the execution for the costs and said officials filed a'motionto retax the costs to include such commissions, which motion was overruled. In approving the action of the lower court, the Supreme Court said: Y'hemotion in this case, it is believed, is.based upon a misapprehensionof 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 representingthe state, on receipt of the money for which judgiuent has been renderedin behalf of the state. The commissions whichmight become due to the officers on collecting the judgments are not costs to be taxed against the defendants.
"Costsare 'the expensea of a suit or action which may be recoveredby law from the losing party.? 1 Bouv. Law Die. 231. Costs which are incurred in prosecutingXr- J. S. Grisham, Page 4 (W-947)

an action are usually adjudgedagainst the losing party, in addition to the principalsum which may be adjudgedagainsthim. which might have become Commissionsin this case, due to the attorneys if the moneys had been collected,shouldhave been taken from the money so collected,and we.have said the cornmisSions did not become due until the money was received."
In Johnson%. UniversalLife & 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 InsuranEeCode) which providesthat a policy holder may recover attorneys' fees which shall be taxed as a part of the costs in the case. A questionof 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 consideredas 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 generallyunderstoodthe fees or compensation

fixed by law collectible by the offi- -cers of court, witnesses,and such like items, anddoes not ordinarilyinclude attorney'sfees, which are recoverable

only by virtue of contractor' statute. ll.Tex.Jur.

p. 320; People of Sioux.County v* National Surety Co., 276 U. S. ~238,.48S.Ct. 239, 72'L,Ed, 547."
We find no Texas authoritieson the question as to whetherattorneys'

feesin condemnation suits constitutea part of the court costs, but the authoritiesin other jurisdictions

seem abundant,, 1 The case of Tomten v. Thomas 232 Pac. 2d. 72S3 26 A.L.R, 2d 1285 (MontanaSupreme Court, 1951) was a condemnation suit involving

attorneys',

fees. The statute involvedprovided that the amount of damage shall be determinedby a jury and %uch amount, togetherwith the expensesof the proceeding

shall be paid by the person to be benefited." The costbill 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 allowableas a taxablecost under section 93-8618 it must first be shownthat such item is either 9taxableaccordingto the course and practice of the court, or by express provision

of law.? No such showingwas made, NoneHr. J. S. Grisham, Page 5 (WW-947)

can be made. The item is a contractobligationof the losing defendantsfor which the prevailingplaintiff is not liable. "The person to be benefitedby the opening of the road is the prevailingplaintiff who is required to pay the amount of damage determinedby the jury 'together with the expenses of the proceeding'. Section 93-9923. "The teim (exuenses' as emuloved in sections 32-1401

the term 'costs.' and 93-9923, kpra, is synonymous with
"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 er than statutory) K 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 prosecutingor 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.arenot costs or recoverable expenses incurred in prosecutingor defending, a suit, either in suits in equity or actions at law.!" n The Court, in the above decision, cites several decisions in condemnationcases 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: *LetMr. 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 provisionof.Constitution or statute that makes the prevailingplaintiffin this action liable for the payment.

of the attorneys'fees owing by his opponentsto their counsel. We find no merit 'whatever in the appeal and appellants will stand their own costs thereon."
In the anotatiogsat Page.1296of A.L,R. 2d it is said: "With few exceptions,the courts in the cases in which the questionhas arisen have construedcondemnation statuteswhich 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 condemnationsuits are not a part of court costso The State Highway Departmentis not required under Article 6673e-1 VoA,&,So.toparticipate-in payment of attorneys'

fees expendedby countiesand cities in the acquisitionof rights of way for State and United Stat;hs highways.
Yours very truly, WILL W!ILSON

APPROVED:
OPINIONCOMMITTEE W.'V, Geppert,ChairmanHr. J. S. Grisham, Page.7 (W-947)

Richard Wells Thomas Burrus C. K. Richards Bob Rotiland
REVIEWED FOR THE ATTORNEY GENERAL By: Leonatid.Passmoke