Juue 9, 

Hon. oene Mad&ill 

Mstrlct Attorney 

payygm 

s 

Dear Sir: 

Your request. for au 

1950 

opiniou Ho. v-1071. 

Rer Types of p.roceedI.ugs 

subject to the Couutg 

Library fee assessed 

in oivil cases. 

opinion is as followst 

wThe County Conrmissloners~of MaLeman Couuty passed sn a& authorleing the Couuty 

Clerk aud the Mstrlot Clerk of said Couuty to assess th'e extra fee of $l.OO.on ea&h 

oivil ease filed in said oourts, with the 

exoeptlou of tax suits. This fee IS to be 

put into a fund to establish and maintain 

aCouutyLibrary. Are sxxih a&lens as Suardianshlp, probate procee -9, lnsauity, restoration and Rabeas Corpus Civil asses' as 

should ccme uuder said a&?*, 

Since McLennan County has a populatiou of 101- 

898 inhabitants and the court or Civil Appeals of the 

Tenth Supreme Judicial Mstrict la located in Waco, the 

provisions of Article 17028 or vfmmn~s civil Statutes 

are applicable to McLegnsn Couutg. 

Artiole 1702~9, V.C.S., pvovides: 

"section 1. The Commissioners Couvts 

of all counties wIthIn this State haviog 

a population of not less than.thlrty thousand (30,000) %nl$xbltants uor more thau two 

huudred and fifty thousand (250,000) duhabltants, acaording to the last preceding or any 

future Federal Census, end in whiah there is 

located a Court of Civil Appeals, shall have 

the power and authority,.by first entering an 

order for that purpose, to provide for, maintain and establish a County Law IiLbravy. 

nsec. 2. For the purpose of establlshw CouutyLaw Libraries after the entry of 

such order, there shall be taxed, collected, 
Eon. Gene Maddln, paw 2 (V-lO?l) 

. 

and 

r 

id as other costs, the sum of One Dollar $1) in each civil ease, except suits rm 

delinquent taxes, hereafter filed in every 

oounty or district court;~provlded, however, 

that in no event shall tlie county be liable 

for said costs in any case. Such costs shall 

be collected by the clerks of the respective 

co&is In ~Said counties and paid by said 

clerks to the County Treasurer to be kept by 

said Treasurer in a separate fund to be kaovn 

as the 1CotmtyLawLibraryFtmd.8 SuchFund 

shall be administered by said Courts foF the 

purchase and maintenance 0r a Iaw Ubrary in 

a convenient and accessible place, and said 

Fund shall not be used for any other purpose. 

‘Sec. 3. Said Courts are granted all 

neaessary ppwer and aathor%ty to make thXs 

Act effective, to make reasonable rules in 

regard to Said Idbrary.and the use of the 

books thereof, and to ,carry out the terms 

and provisions 0r thls Act ." 

In acOorclance with Article 17028 the Con&ssionersJ Court .xH! HeLendan -%omrtp; Under'th& faeta sub- a*eq,'..we ~.ea*~~.&--&dep*~~ fa'r;..+ .gg+:of.'On* 

.DollM ~~l..~)-~~ae~eo6Ca-~-blreh-clvll- eas+f&led.ln 

the -oounty or 'distrlat court +xcept tax &its td’be put 

into a fund for the purpose of establlshS.ng a County Iaw 

Library. 

A “cats’8 a as defined ti Slaven v. Wheeler, 

Tex. 23. 25 (18821. is “a oontested auestion before a 

58 

court 6? j6sthceaT&?, as defined in I& part8 Towlea, 48 

T*x. 413, 433 (1877), ‘a question contested before a 

court or justice; an action 'or suit in law or equltg.* 

A *&ml&al’ case as distlng~shed from a “civil’ case 

is defined Ln Scott v. State, 86 Tex. '321, 24 S.W. 789 

(1894) to be *an ~aoticn, suit or cause instituted to 

tiecure convl&lm~.and prnriahment for crimei" A T@clz 

action is defined in Ian* v. Eewgle , ,155 S.W. 3W, 3YJ 

(Tex.Olv.App.1913) to be “a ~rOoeed%R ia a 00td 0f Ed j~tiC8 b--&e 

__ 

party agalnst‘an6ther ?or the ‘enfOrCa 

or protection 0r a prlvate..right or for the redress o* 

prevention 0r a .pz$vate wrong.‘, 

With %he above Se&-al distinct&s between 

civil and criminal ‘kases in mind, ~8 shall omslder *aoh 

of the specific types or proceedings mentioned In 9om ,~ 

request. 
Eon. Gene Maddin, page 3 (V-107l) 

1. GuardLanshlp and other cases in the 

Probate Court: 

It was held in Attorney Generalts Opinion Ro. 

O-3957, dated October 7, 1941, thzit probate matters are 

amdrag the oases in which,House Bill 1080.'of the'47th LegMlature (Art. 1702d, V.C.S.) directs that the-bum of One 

Dollar'($l.OO) shall be taxed as costs f&r-the purp08i3 of' 

establishing"&ud maintaining a County Law Mbrary. We 

quote the r0iiowing from said opinionr 

"And the Isgislature of Texas seems also 

to have consfdered probate matters as 'civil 

casesl. Witness the language used in Article 

1821, Revised Civil Statutes of 1925: 

*Wie 

Appeals 8 hai 

udgments or the Courts or Civil 

1 be couclusive onthe law and 

faots, nor shall a writ of error be allowed 

themto.franthe Suppers Couvt Ln the following cases, to tit: 

*l(l) Any civil case appealed from the 

couuty court or from a'district court, when, 

under the Constitution, a county court would 

havehadoriglnalorappellate jurisdiction 

to trJi 'it, *xc*& In probate matters . . .' 

(Underllnlng ours ) 

'Also, the language used In Artlcle*3702, 

relating to appeals of probate matters to the 

district cow&x 

*'Such cases shall be tried de novo in 

the district court, i?+nd shall be governed by 

the same rules of procedure as other civil 

cases in said court.' (Underscoring ours)' 

"When such a meaning is ascribed ho the 

word 'case' as used in House Bill Ro. 1080, 

probate proceedings, whether contested or not, 

fall within its terms. And we believe such a 

construction Is tithin the apparent Intent of 

the Legislature in enacting it. 

"You are therefore respectfully advised 

that it is our opinion that probate matt,era 

are among the cases in which House Bill Bo. 
Eon. Gene Mad&Lxx, page 4 (V-1071) 

1080 &recta that the sum of One Dollar ($l.- 

00) shall be taxed as costs for the purpose of 

establlshlng and malntalnlng a County law Llbrary (assuming, of course, that the C&ssloners' Court has first entered its order for 

that purpose..)' 

We point out, however, that not all proceeq8 in the 

Probate Court are classlifled as a 'civil case wlthln 

the meaning of Artlole lTO2e. We quote the following 

from Attorney General'-s opinion Ho. V-292: 

'It Is recognized that certain proceedlngs in the Probate Court could be classified 

as a lcivll case'. Wevertheless, an appllcation riled in the Probate Court for a delayed 

birth certificate is not a *oivil case' within f&e meaning of Art. 1702a-1, V.C.S., riled 

ln County or Mstrlct Court; therefore appllants for delayed birth certiilcates may not 

be taxed the $1.00 fee for filing." 

‘Proceedings under said act of 1913 are 

of a civil, and not of a criminal, nature. 

Insanity is not a crime; in contradistlnotC3x it 1s a disease. . .* 

See also Ex parte S-l&on, 72,Tex.Crlm. 122, 161 S.W. 

123 ( 1 91 3í) l 

It was held in Attorney General's Opl.t&ons Was. 

O-259, dated February 28, 1939 and O-3952, dated March 11, 

1943, that lunacy or Fnsanlty proceedings are civil cases. 

In view 0r the foregoing it is our opinion that 

insanity prooeedlngs ere civil oases within the meaning 

or Article 1702e. ~: 

In People v. Cornelius. 302 Ill. 599, 65 N.E. 

26 439 (Ill. S.Ct 1946) it was held that a prOC88ding 

under then Criminai Code to determIne whether a person 

charged with a crime is a "olvil proceeding.' It was 

pointed out, however, that such a proceedlng "Is not an 

action at law or In equity but was wholly preliminary to 

trial 'on the indl0tm8nt." Therefore, where Insanity Is 
BCD. Gene Hadbin, page 5 (V-107l) 

FnterDosed as a defense in a crim3nal erase under the Dro- 

~isioixs 0r Artiole g32a, V.C.C.P., 

on the question of %nsanity may be 

although the hearl@ 

such a plea would not oonstltute a 

a oivll proceeding, 

civil case wlthln the 

meaning 0r Article 17028. 

W.2d 72 (l$$ it was held t t restoration procee 

wrte Frailey, 146 Fex.Crlm. 557, ln S. 

of a person noi. charged with a arriminal offense under Yie 

provlslcns of Article 561a,.V.CcS~;, Is a oivil matter. 

It Is therefore our op L an that all restoration prooeedlngs held under the provlslans of Article 556la are civil 

cases. Idkewlse, it is our oplnlan that restoration proceediugs under Article 932a, V.C.C.P., are civil~oases 

for such restoration proceedings are not actions, suits 

or other.causes instituted to secure conviction and punm37sent i-02 crime. On the oontrary, such trials are 

cases involving solely the question of sanity, wholly 

Independent from any cH.nUal case avaiting trial when 

the defendant is adjudged sane. Ex part8 FraLle& supra. 

3. Habeas Corpus:. In: determln%ng whether habeas 

corpus cases are regarded as c%vll or 'crimImal'remedles, 

It was held ln Harblson v. McMurray, 138 Tex. 192, 158 S. 

W.2d 284, 287 (1942): 

"Since habeas oorgus eabes ar proceeds 

l.ngs tie regarded as clvll, as dlstlngulshad fr6m crlmlnal remedies or proceedings, 

In those jurisdictions whloh do not divldethe jurlsdlctian. of their appellate oourts, 

as regard crimlnal~and civil cases, we think 

that in this State, where such division is 

made, appeals in habeas corpus cases or proceedtngs growing out 0r civil proceedings or 

cases Should be classified as tclvll cases' 

within the meaning or Section 6 of Ax%.&8 

V of our State Constitution and Article 2249 

0r our civil statutes." 

In Ex pa rte Green; 116 Tex. 515, 295 S.W. 910 

(1927), it was held that a judgment ptmish$ng one for 

contempt of court for vlolatlng an injunctlcn issued Mder an Act prohibiting the sale of Intoxicating 1iqnOrS 

was rendered in a 01~11 oase rather than a criminal case 

within the meaning of Article 1737, V.C.S., granting the 

Supreme Court the power to issue writs of habeas corpus 

In civil oases. We quote the roiioving: 
Hon.GeneMaddin, page'6 (v+107l) 

“After the pardon proolamatlau was isstied, relator sought his discharge from the 

dlstrlctcourt'onhabeas corpus. upouhls 

discharge being refused by the dlstrlot court, 

relator appealed to the Court of CrImInal Appeals. The appealwas dIsmIssedlnauopInion by Presiding Judge Morrow, In whlah It 

was saidt 

“(As applied to the present' Iustauce 

In which the appellant seeks relief from the 

judgment of contempt entered against him in 

a civil case, we are 0r the opinion that he 

should Invoke the jnrisdiotlon of the Supreme 

Court to give him any relief to which he Is 

entitled be$ore arrklng ~thls court.to disEx part8 Green, 100 Tex.Cr. R. 

ie:7i%:W. 162. 

"Inholdingthatthe judgmentpunLshing 

relator for contempt was rendered in a civil 

suit and not in a criminal oase, the Court of 

Orlmbial Appeals'adhe&ed to a'long line of 

th@~ Penal~Code. ~~Hh@i&icearo~agplied to~.the 

Court‘of Criminal Appeals ror'rel6ase fram 

a judgment~oslng onhlmboth~fineaud 

Imprisonment for conteinpt ln aoing the act 

forbidden by the Injunction, the court denied 

him relief on the ground% 

"VPhat the case lnwhlch Ws puaishmeut 

in contempt was Imposed is a civil case, we 

have no doubt. Any judgmentwhichwouldhave 

been rendered by the district oourt of .Tarrant 

Couutqln said cause could only have been appealed, and by either party, to the civil 

courts 0r this state, and it could not have 

been appealed to this court. * * * While the 

violation of said artlole of the Code is a 

oriminal offense, said suIt Is a clvll case, 

and appllaant is held by the farirr by virtue of prooess and oonmdtnmt and order on 

account of the violatlomor an order of the 

said district judge end oomt, 

terms 0r said statute.lu 

In the very 
Hon. ffene Raddin, page 7' (V-107&) 

The test.fo determin8,whether.a particular 

habeas corpus prpoeeding 1s.a elvll p&se or a crlmlnal 

aase is aptly stated QI State v.:~orris~~ 208S.W.2d 701 

(Tex.Civ.App.1948) as follows:~ .', 

"The appellate jurlsdlctlon 0r'thG 

cour%extenda only *a olvll cases.X&t. V, 

Sea. 6, Const.of Tex., VernonJs~@.St..Art. 

1819, Vernon’s Tex.Clv.Stats'.~-Iti.order to'. 

determine whether a woceedln&by habeae'corpus to remove an ualawful restraint Is ta be 

regarded as a criminal- or a cltil.,oase:ror 

jurlaclloticmal purposes it la necessary to 

look to the cause of the restraint. If the 

restraint is by reason of a violation or a 

supposed violation of some criminal or quasi 

criminal law the prooeedlng will ordinarily 

be regarded as a criminal case; but if thq 

restraint is not beoause of some supposed 

violation of orlmlnal law, then the.gr.qceedlgg must be classed as a civil case1 

: In view of the foregoing you are advised that 

habeas corpus pro08 

'-2 

8 may be Bither a oivl.1 case or 

g ;rlml.nal case wlthln he meaning of Article 17028, V. 

depending on the facts In each instant case. If 

1ix ge proceeding It appears that "the restraint is not 

because of some supposed violation of orlndnal law, then 

the proceeding must be olassed as a 01~11 case." State 

v. Morris 

-. 

stipra; Legate v. Lenate, 87 Tex. 248, 28?i!X. 

You have asked no opinion regerdlng the COPstltutlmallty of Article 17028 and we express no oplnion in that regard. 

SUMNARY 

Guardianships and other cases in probate court, insanity, and restoFatlon proceedlngs &re civil oases within the meanlug 

O-259, O-3952, O-3957, V-292. 
Hon.Genel6+dln~ &e 8 (V-107l) 

.' A habeas'.o&pus 'prooeeding'lpay be 

either a orindnal a&se or a oivll case depending on the raots in each inatame. If 

in the proceeding it appears that the restraint is not because of some supposed 

violation of orlmlnal law, then theproceedinu must bs'classed as a civil case. 

APPROVED* 

J. C. Davis, Jr. 

Couhty Affairs Mvlsion 

Yours very truly, 

PRICEDUIRL 

AttorneyGeneral