                          Juue 9, 1950

Hon. oene Mad&ill                   opiniou   Ho. v-1071.
Mstrlct  Attorney
payygm                              Rer Types of p.roceedI.ugs
     s                                  subject to the Couutg
                                        Library fee assessed
Dear Sir:                               in oivil cases.
            Your request. for   au opinion    is as followst
     wThe County Conrmissloners~of MaLeman Couu-
     ty passed sn a& authorleing     the Couuty
     Clerk aud the Mstrlot     Clerk of said Couu-
     ty to assess th'e extra fee of $l.OO.on ea&h
     oivil   ease filed in said oourts, with the
     exoeptlou of tax suits.     This fee IS to be
     put into a fund to establish    and maintain
     aCouutyLibrary.      Are sxxih a&lens as Suar-
     dianshlp,   probate procee       lnsauity,  res-
     toration                   -9, Civil asses' as
                and Rabeas Corpus
     should ccme uuder said a&?*,
           Since McLennan County has a populatiou    of 101-
898 inhabitants   and the court or Civil Appeals of the
Tenth Supreme Judicial   Mstrict  la located in Waco, the
provisions   of Article 17028 or vfmmn~scivil    Statutes
are applicable   to McLegnsn Couutg.
            Artiole   1702~9, V.C.S.,   pvovides:
           "section  1. The Commissioners Couvts
     of all counties wIthIn this State haviog
     a population   of not less than.thlrty    thou-
     sand (30,000) %nl$xbltants uor more thau two
     huudred and fifty   thousand (250,000) duhabl-
     tants, 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, main-
     tain and establish   a County Law IiLbravy.
           nsec. 2. For the purpose of establlsh-
      w   CouutyLaw Libraries  after the entry of
      such order, there shall be taxed, collected,
Eon. Gene Maddln, paw        2   (V-lO?l)                     .


         and    id as other costs,   the sum of One Dol-
         lar r $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&s-
sionersJ       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, 58
Tex. 23. 25 (18821. is “a oontested auestion before a
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%Ria a 00td 0f
j~tiC8 b--&e      party agalnst‘an6ther    ?or the ‘enfOrCa Ed
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
amdragthe oases in which,House Bill 1080.'of the'47th Leg-
Mlature     (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     udgments or the Courts or Civil
     Appeals 8hai 1 be couclusive   onthe law and
     faots, nor shall a writ of error be allowed
     themto.franthe     Suppers Couvt Ln the follow-
     ing 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?+ndshall 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 Ll-
     brary (assuming, of course, that the C&s-
     sloners'   Court has first  entered its order for
     that purpose..)'
We point out, however, that not all proceeq8      in the
Probate Court are classlifledas 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 proceed-
     lngs in the Probate Court could be classified
     as a lcivll    case'.   Wevertheless,  an appllca-
     tion riled in the Probate Court for a delayed
     birth certificate     is not a *oivil case' with-
     in f&e meaning of Art. 1702a-1, V.C.S., riled
     ln County or Mstrlct      Court; therefore  appll-
     ants 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 contradistlno-
     tC3x it 1s a disease.   . .*
See also          Ex parte   S-l&on,      72,Tex.Crlm.   122, 161 S.W.
123 ( 1 9 1 3’)    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.,   although the hearl@
on the question of %nsanity may be a oivll proceeding,
such a plea would not oonstltute    a civil  case wlthln the
meaning 0r Article  17028.
                    wrte Frailey,      146 Fex.Crlm. 557, ln S.
W.2d 72 (l$$        it was held t t restoration         procee
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         prooeed-
lngs held under the provlslans         of Article   556la are civil
cases.     Idkewlse, it is our oplnlan that restoration            pro-
ceediugs 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-
m37senti-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 dlstlngulsh-
      ad fr6m crlmlnal remedies or proceedings,
      In those jurisdictions     whloh do not divlde-
      the 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 pro-
      ceedtngs 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 parte 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 M-
der 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 is-
     stied, relator    sought his discharge   from the
     dlstrlctcourt'onhabeas        corpus.   upouhls
     discharge being refused by the dlstrlot        court,
     relator appealed to the Court of CrImInal Ap-
     peals.    The appealwas     dIsmIssedlnauopIn-
     ion 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    dis-
                      Ex 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 ap-
     pealed, 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 vir-
     tue of prooess and oonmdtnmt and order on
     account of the violatlomor      an order of the
      said district   judge end oomt, In the very
     terms 0r said statute.lu
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'cor-
     pus 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 prooeedlngwill ordinarily
     be regarded as a criminal case; but if thq
     restraint    is not beoause of some supposed
     violation    of orlmlnal law, then the.gr.qceed-
     lgg must be classed as a civil       case1
         : In view of the foregoing you are advised that
habeas corpus pro08      8 may be Bither a oivl.1 case or
g ;rlml.nal case wlthln
                     '-2 he meaning of Article   17028, V.
       depending on the facts In each instant case.    If
1ixge proceedingIt 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 COP-
stltutlmallty     of Article 17028 and we express no opln-
ion in that regard.
                          SUMNARY
           Guardianships and other cases in pro-
     bate court, insanity,    and restoFatlon pro-
     ceedlngs &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 de-
     pending on the raots in each inatame.         If
     in the proceeding it appears that the re-
     straint is not because of some supposed
     violation   of orlmlnal law, then thepro-
     ceedinu must bs'classed    as a civil   case.




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