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 wTheCounty Conrmissloners~of MaLemanCouuty passed sn a& authorleing the Couuty Clerk audthe 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 andmaintain aCouutyLibrary. Are sxxiha&lens as Suardianshlp, probate procee -9, lnsauity, restoration and Rabeas Corpus Civil asses' as should ccmeuuder said a&?*, Since McLennanCounty has a populatiou of 101- 898 inhabitants and the court 

## orCivil Appeals of the Tenth Supreme Judicial Mstrict la located in Waco, the provisions of Article 17028 

## orvfmmn~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 LawIiLbravy.

nsec. 2. For the purpose of establlshw CouutyLaw Libraries after the entry of such order, there shall be taxed, collected,Eon. GeneMaddln, paw 2 (V-lO?l)

.

and r id as other costs, the sumof OneDollar $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 ~Saidcounties 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 

## 0ra

## IawUbraryin a convenient andaccessible place, and said Fundshall not be used for any other purpose.

‘Sec. 3. Said Courts are granted all neaessary ppwer and aathor%ty to makethXs Act effective, to makereasonable rules in regard to Said Idbrary.and the use of the books thereof, andto ,carry out the terms 

## andprovisions0rthlsAct." 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 CountyIaw Library. A “cats’8a as defined ti Slaven v. Wheeler, Tex. 23. 25 (18821. is “a oontested auestion before a58
court 6? j6sthceaT&?, as defined in I& part8 Towlea, 48 T*x. 413, 433 (1877), ‘a question contested before a court 

## orjustice; an action 'or suit in law or equltg.* A *&ml&al’ case as distlng~shed from a “civil’ case is defined LnScott 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 , ,155S.W. 3W, 3YJ (Tex.Olv.App.1913) to be “a 

## ~rOoeed%R ia a

## 00td 0fEd j~tiC8 b--&e __

party agalnst‘an6ther ?or the ‘enfOrCa or protection 

## 0ra prlvate..right or for the redress o* prevention 

## 0ra.pz$vate wrong.‘,

With%heabove 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. GeneMaddin, 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 LawMbrary. We quote the 

## r0iiowingfromsaid opinionr

"Andthe Isgislature of Texas seems also to have consfdered probatematters as 'civil casesl. Witness the language used in Article 1821, Revised Civil Statutes of 1925: *Wie hai Appeals 8 udgments or the Courts or Civil

1 be couclusive onthe law and faots, nor shall awrit of error be allowed themto.franthe Suppers Couvt Lnthe following cases, to tit: *l(l) Anycivil case appealed from the couuty court or from a'district court, when, under the Constitution, acounty 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 samerules of procedure as other civil cases in said court.' (Underscoring ours)' "Whensuch 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. Andwebelieve 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 amongthe cases in which House Bill Bo.Eon. GeneMad&Lxx, page4 (V-1071)

1080 &recta that the sumof OneDollar ($l.- 00) shall be taxed as costs for the purpose of establlshlng andmalntalnlng a County law Llbrary (assuming, of course, that the C&ssloners' Court has first entered its order for that purpose..)' Wepoint out, however, that not all proceeq8 in the Probate Court are classlifled as a 'civil case wlthln the meaning of Artlole lTO2e. Wequote 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, anappllcation riled in the Probate Court for a delayed birth certificate is not a *oivil case' within f&e meaningof Art. 1702a-1, V.C.S., riled ln County or Mstrlct Court; therefore appllants for delayed birth certiilcates maynot be taxed the $1.00 fee for filing."

‘Proceedings undersaid 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 Exparte S-l&on, 72,Tex.Crlm. 122, 161 S.W. 123 (1913í) l

It was held in Attorney General's Opl.t&onsWas. O-259, dated February 28, 1939 and O-3952, dated March 11, 1943, that lunacy or Fnsanlty proceedings are civil cases.

In view 

## 0rthe foregoing it is our opinion that insanity prooeedlngs ere civil oases within the meaning 

## orArticle 1702e. ~:

In People v. Cornelius. 302 Ill. 599, 65N.E. 26 439 (Ill. S.Ct 1946) it washeld that a

## prOC88ding under thenCriminai 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 waswholly preliminary to trial 'on the indl0tm8nt." Therefore, where Insanity IsBCD.GeneHadbin, 

### page5 (V-107l)

FnterDosed as a defense in a crim3nal eraseunder the Dro- 

## ~isioixs0rArtiole g32a, V.C.C.P., on the question of %nsanity maybe although the hearl@ such a plea would not oonstltute a a oivll proceeding, civil case wlthln the meaning 

## 0rArticle 17028.

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

wrte Frailey, 

### 146Fex.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. L It Is therefore our op anthat all restoration prooeedlngs held underthe provlslans of Article 

### 556laare 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 pun

## m37sent i-02crime. Onthe 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. Expart8 FraLle& supra. 

### 3. Habeas Corpus:. In:determln%ng whether habeas corpus cases are regarded as c%vll or 'crimImal'remedles, It washeld ln Harblson v. McMurray, 

### 138Tex. 

### 192,158S. 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, wethink that in this State, where such division is made, appeals in habeas corpus cases orproceedtngs growing out 

## 0rcivil proceedings or cases Should be classified as tclvll cases' within the meaning 

### orSection 

### 6 of Ax%.&8 V of our State Constitution andArticle 2249 

## 0rour civil statutes." In Exparte Green; 

### 116Tex. 

### 515,295S.W. 

### 910 (1927), it was held that a judgment ptmish$ng one for contempt of court for vlolatlng an injunctlcn issued MderanAct 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 SupremeCourt the power to issue writs of habeas corpus In civil oases. Wequote 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. Theappealwas 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 himin a civil case, weare 0r the opinion that he should Invoke the jnrisdiotlonof the Supreme Court to give himany relief to which he Is entitled be$ore arrklng~thls court.to disExpart8 Green, 100Tex.Cr. R. ie:7i%:W. 162. "Inholdingthatthe judgmentpunLshing relator for contempt was rendered in a civil suit andnot in a criminal oase, the Court of OrlmbialAppeals'adhe&ed to a'long line of

th@~Penal~Code. ~~Hh@i&icearo~agplied to~.the Court‘of CriminalAppeals ror'rel6ase fram ajudgment~oslng onhlmboth~fineaud Imprisonment for conteinpt ln aoing the act forbidden by the Injunction, the court denied himrelief on the ground% "VPhat the case lnwhlch Ws puaishmeut in contempt was 

### Imposedis a civil case, we have no doubt. Anyjudgmentwhichwouldhave been rendered by the district oourt of .Tarrant Couutqln said cause 

### couldonly have been appealed, and by either party, to the civil courts 

## 0rthis 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, andappllaant is held by the 

## farirr byvirtue ofprooess and oonmdtnmt and orderon account of the violatlomor an order of the said district judge end oomt, terms 

## 0rsaid statute.lu In the veryHon. ffene Raddin, page 7' (V-107&)

Thetest.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’sTex.Clv.Stats'.~-Iti.order to'. determine whether a woceedln&by habeae'corpus to remove anualawful 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 aviolation or a supposed violation of somecriminal or quasi 

### criminallaw the 

### prooeedlng will ordinarily 

### beregarded as a 

### criminalcase; but if thq restraint is not beoause of somesupposed violation of orlmlnal law, then the.gr.qceedlgg must be 

### classedas a civil case1

: In view of the foregoing you are advised that habeas corpus 

### pro08 '-2 8maybe 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 somesupposed 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.

Youhave asked no opinion regerdlng the COPstltutlmallty of Article 17028 andwe 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)

.'Ahabeas'.o&pus 'prooeeding'lpay be either a orindnal a&se or a oivll case depending onthe raots in each inatame. If in theproceedingit appears that the restraint is not because of somesupposed violation of orlmlnal law, then theproceedinu mustbs'classed as a civil case.

APPROVED* J. C. Davis, Jr. Couhty Affairs Mvlsion Yours very truly, PRICEDUIRL AttorneyGeneral