                             ORNEY       GENERAL

                                TEXAS




Honorable Ramie H. Griffin
Criminal District Attorney
County Courthouse
Jefferson County
Beaumont, Texas               Opinion No. ww-512
                              Re:    Can a Plaintiff who makes a
                                     costs deposit pursuant to
                                     Rule 146, Texas Rules of
                                     Civil Procedure, and later
                                     prevails In the trial of
                                     his case with all costs as-
                                     sessed against the Defendant
                                     from whom the District Clerk
                                     cannot collect said costs,
                                     recover his costs deposit?
                                     If so, what recourse does
                                     the District Clerk have in
                                     the event portions of the
                                     deposit have been paid Into
                                     the County Treasury?
Dear Mr. Griffin:-
          Your recent request foran opinion from this office
sets out two questions. They are as follows:
         1. Where the Plaintiff In a civil suit
         has made a costs deposit with the District
         Clerk pursuant to Rule 146, Texas Rules of
         Civil Procedure, and upon trial of the cause
         judgment Is rendered In favor of Plaintiff
         with all costs assessed against Defendant,
         and the District Clerk 1s unable to collect
         such costs from the Defendant, can the Plaln-
         tiff recover the costs deposit?
          2. If Plaintiff can recover the costs deposit
          under the clrcumstanoes outlined above, what
          recourse has the District Clerk in the event
          portions of,the deposit have been paid into
          the County Treasury?
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Honorable Ramle H. Griffin, Page 2,   (W-512)



          Several Texas Rules of Civil Procedure set out each
party's responsibility for court costs. They are as follows:
              "Rule 125.  Parties Responsible. Each
         party to a suit shall be liable to the officers
         of the Court for all costs incurred by himself.
              ",Rule127.  Parties Liable for Other Coats.
         Each party to a suit shall be liable for all
         costs incurred by him. If the costs cannot be
         collected from the party against whom they have
         been adjudged, execution may Issue against any
         party In such suit for the amount of costs ln-
         curred by such.party, but no more.
              "Rule 142. Security for Costs. The clerk
         may require,from the.plaintiff security for costs
         before Issuing any process, but shall file the
         petition and enter the same on the docket . . . .
               "Rule 143.   Rule for Costs. The plaintiff
          ma,ybe ruled to.glve security for costs at any
          time before final judgment, upon motion of the
          defendant or any officer of the court interested
          in the costs accruing  in such suit . . . .
                  "Rule 146.  Deposit for Costs. D-llieu of
          a bond for costs, the party required to give then
          same may deposit with the clerk of court or the
          justice of the peace such sum,asthe court or
          justice    from time to time may:deslgnate as suf-
          ficient to pay the accrued costs.
              'Rule 149. When costs have been adjudged
         against a party and are not paid, the clerk or
         justice of the court in which the suit was de-
         termined may Issue execution, accompanied by an
         Itemized bill of costs, against such party to
         be levied and collected as in.other.caees; and
         said officer, on demand,of any party to whom
         any such costs are due, shall,issue execution
         for costs at once. . . .)t
          The rules are clear. Each party is responsible to
the Court for the costs Incurred by him,in any civil suit.  A
deposit or bond~may be required of each party~~to,
                                                 Insure payment
Honorable Ramle H. Griffin, Page 3,         (WW-512)


of these costs. Assessment can be made agalnst the required
depOBit or bond for two purposes.
              First, the losing party maybe assessed all costs of
the   suit.    The bond or deposit may be levied against for these
oosts.
          Secondly, if the costs cannot be collected by the
,Courtfrom the party agalnstwhomthey   amc assessed* then the
prevailing party Isliable for those costs incurred by hti,
but he Is liable for no more. ,

              we quote from    DOSS, et al; Y. Chambers; et al.,   188
s.bl.296,     Clv.App. 1916,    no writ history:
                   "The genernl rule In ,clvll,casesla
              that, when an appellant obtains ,a judg-
              ment in the appellate court, deciding the'
              case on its merits in his favor, he tiso
              obtains a judgment against his adversary
              for all the costs; but, PI no costs CM
              be collected from the adverse party, he
              is liable to the ~mfflcess of the several.
              courts for the costs incurred by him."
           It is the opinion of this office, that nhen the
 Plalntiff in a civil  suit has made a costs deposit aulththe
 District Clerk pursuant to Bule 146, Texas Rules of Civil
 Procedure, and judgment Is rendered in his favorwith De-
 fendant being assessed ,a11 costs, Plaintiff is entitled to
 recover hiscosts deposit. When, as in the instant case,
 costs cannot be collected from the party against wfiomthey
 have been assessed, the Plaintiff Is liable to the Court for
'those costsincurred by him. After his costs hav.ebeen de-
 dueted he, is entitled to recove~rthe rema%nd,erof the deposit.
          A~ttorneyGeneral's Opinion O-4948 (1942) spoke re-
garding questions related to those propounded by you. That
opinion described the funds collected by county offlelals,
ineluding court costs deposits collected by the District Clerk,
as trust funds. We sub,scribeto that ,view. Orme the amount
of the excess costs deposit has been established, that is suf-
ficient to constitute a legitimate claim against the county
In that ,amount.
          Therefore, it is our opinion that in the event portions
of the deposit have been paid into the County Treasury, the Pls-
trlct Clerk's recourse would be to present his claim for the


                                                .
Honorable Ramie H. Griffin, Page 4,     (W-512)



excess amountof the deposit against the County. In doing this,
the District Clerk would follow those procedura1,rule.swhich
have been adopted by the Commissioner's Court in the county
wherein the,clalm is being presented.
                              SUMMARY
                Where the Plaintiff in a civil
           suit has made a costs,deposlt with the
           District Clerk pursuant to Rule 146,
           Texas Rules of Civil Procedure, and up-
           on trial of the cause judgment is render-
           ed In favor of Plaintiff with all costs
           assessed against Defendant, and the Dls-
           trict Clerk is unable to collect such costs
           from the Defendant, the Plalntlff can re-
           cover the costs deposit after those costs
           accruing to him have been deducted.
                In the event portions of the deposit
           have been paid into the County Treasury,,
           the District Clerk9 recourse would be
           to present his claim against the County
           according to the rules of,procedure which
           have been adopted by the Commissioner's
           Court In the County where the claim is
           presented.
                                 Very truly yours,
                                 WILL WILSON
                                 ATTORNEY GENERAL OF TEXAS

                                              &d
                                 BY:+
                                   Byron    Fullerton
BF:,bb                                Assistant
APPROVED
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Milton Richardson
Morgan Nesbitt
Leon Pesek
Clyde Kennelly
REVIEWED FOR THE ATTORNEY GENERAL
BY: w. v. GEPPERT
