Hon6rable.E. C. Fetry, ,Jr~.
County Attorney
Dlmmit County
Carrizo Springs, Texas
Dear Sir:                                 Opinion Ho. O-6877
                                      Re:      If a juvenile employs
                                               counsel, Is it the duty
                                               of the county attorney to
                                               appear when requested by
                                               the court and present the
                                               evidence alleging  said
                                               child to be deliaquent?
                                               And related questions.
       Your request   for   our opinion     on the above questions
reads as follows:
              "I would like to have an opinion        from your
        Departmeut on the following questions.
                '(1) Under the &venlle Delinquency Act
        where a child Is found to be a delinquent child
        after a Jury hearing and the Judge places him in
        the custody of his parents until he reaches the
        age of 21, and further orders that Court costs
        that have accumulated be paid by the parent of
        the child and/or the child;   can such Court costs
        be so assessed and what remedy Is there if the
        parent and/or child ~refuses to pay said Court
        CO8ts ?
                "(2)     If said child employs counsel, Is It
        the duty of the County Attorney to appear when
        requested by the Court and present the evidence
        alleging     said child to be a delinquent child?
               @In examining Article 2338, Section 3, I find
        that a separate court known as a Juvenile court is
        created by the aet and that the County Judge can
        serve as Judge of the Juvenile court which Is our
        case in this county.   I find that appeals shall be
Hon. H, C. Petrg,   Jr.,   page 2   (0-6877)


       taken to the Court of Civil Appeals, therefore,  I
       assume that the Juvenile Court is a Court of record,
       and in view of the fact that appeals can be taken
       and the Court,ls  created, It is my opin%on that
       court cost8 can be assessed either against the delln-
       quent child,  hie parents or guardian.
               “I find in Section 7 of the above Article,      that
       It Is the duty of the Judge, County Attorney OF Proba-
       tion Officer    to make prellmiaary   inquiry,  and, if, in
       their judgment, jurisdiction     should be acquired,    the
       County Attorney shall prepare and file la the Court a
       petitioe,    or any Attorney may file said petition,     but
       the law specifically     names the County Attorney, and
       It would appear that In view of thie duty being placed
       upon him, it Is his duty to appear and present the
       evidence aDd testimony a8 alleged in the petition.          In
       this connection It Is my opinion that the County Attor-
       ney does not have to s,lgn the petition      unless he desires
       to do so, but the person alleging      the facts to be true
       can sign the petition.
              “I find in Section 13-A that the Judge may order
       the parent or other responsible     person to pay such sum
       as will in whole or la part support such child whether
       committed to the custody of his own parent or other
       person, agency or institution,     and find further that
       the court ahall have full power to enforce such judg-
       ment for support by civil    contempt proceedings    after
       10 days notice to parent.      It Is my belief  from this
       that it was the intention    of the Legislature    that the
       Judge could also order costs of the hearing to be paid
       by such parent or other person responsible      for the care
       and support of the child.
               “I find in Section 21 of the above Article     that
       the Appellate Court may provide for a recognizance       bead.
       I find in the case of Steed v. State, 183 S. W. (2d)
       458, that the’proceedings     are civil and not criminal
       and hence rule of civil    proceedings  are applicable   there-
       to which would tend to show that court costs could be
       assessed,    and If court costs can be asaesaed, then the
       question arises as to the amount of fee the county officers
       would be entitled    to.  For instance,  the usual fee for a
       County Court aase to county attorney In a criminal case
       is $10.00, however, there is no provision     made
       that I can flad to renumerate our expenses for the
       Sheriff   who serves the notice,   and the Judge who would
       hear the evidence and the County Attorney who must pre-
       sent the evidence,    and this becomes an important thing
       in a fee county a8 in this County.      Also in a jury case
Hon. Ii. C. Petry,   Jr.,   page 3   (O-6877)


       the jurors    who serve expect to be compensated and It Is
       my opinion    that a charge for said jurors should be made.
              "After reading the Juvenile Delinquency Act the
       above questions came to mind and in view of the fact
       that we recently   concluded a trial here in which a
       child was found guilty of being a delinquent by a
       jury under a charge of rape, in view of the fact that
       the Judge assessed cost8 against such parent of said
       child and in further view of the fact that the attor-
       ney for the child advised them not to pay costa
       because there Is no provision   made under the act for
       the coats, It Is very Important to know whether such
       costs can be assessed against the Parent or child or
       whether the costs must be paid by the County, and if
       80, can Said costs be based in the ssme manner as a
       lunacy or criminal case in County court, or civil    case
       in County court.
               "Itis difficult under the aat to determine
       if   8uCh costsare to be adjudged, what the amount of
       such costs should be."
         In the case of In Re Deady, et al.,  175 S. W. (26) 297,
affirmed by the Supreme Court in 179 S. W. (2d) 269 the Amarillo
Court of Clvcril Appeals, in holding that Article  2338-1, Vernon's
Annotated Civil Statutes,,known    as the Juvenile Court Act, is
constitutional,   held In part as follows:


              'The Act sets up a complete jurisdiction       and
       procedure for the hearing of juvenile delinquent
       cases and there Is no other law, civil    or criminal,
       to govern such cases and situations   as defined by
       the Act and placed within the exclusive     jurlsdlc-
       tion of the juvenile court provided for in this
       Act.   Rowhere does the Act provide that either
       criminal or civil   procedure shall be followed.
       While Section 2 of the Act provides that the 'Act
       shall be liberally   construed,' it does not give the
       trial court unlimited authority and power in pro-
       cedure in such cases.
               'I* * *

              "The Act lo question provides for a jury trial
       when a jury is demanded and authorizes   the trial
       court to order a jury on his own motion in such
       cases.   Nowhere does the Act provide for the pay-
       ment of a jury fee and nowhere does It require the
Hon. H. C. Petry,    Jr.,   page 4   (O-6877)


          trial court to follow civil procedure In demanding
          and impanelllng a jury if and when a jury Is deman-
          ded in such cases. + * *'
       Said Article 2338-l contains no provision       relative   to
the payment of costs in a proceeding thereunder.
          In passing upon a similar question our Opinion No.
O-5786,    wh%ch we here adopt, held in part as follows:
                  "The right to costs as of course is purely
          statutory.    Costs can be Imposed and recovered only
          in cases where there Is statutory     authority therefor.
          Costs, 11 Texas Jurisprudence,   228, para. 2, note 17;
          Costa, 20 Corpus Juris Secundum, page 260, para. 2,
          note34;    U. 5. ca8Wdty   Company vs. Hampton, (C. A.)
          293 s. w. 260.
                 %ecurity   for costs must be given in causes or
          proceedings falling   within the requirement of controll-
          ing statutes,   but they need not be given In causes or
          proceedings beyond the scope of such mandatory requlre-
          ments, and under some provisions    the matter will rest
          in the sound discretion    of the Court.  w,     20 C.J.S.,
          364, para. 126.
                "It has been held that in the absence    of a statu-
          tory provision  costs cannot~be awarded in a   proceeding
          in the juvenile  courts; Juvenile Courts and   Offenders,
          31 Am. Jr., 808, para. 45, note 9; Infants,    31 C. J.
          1110, para. 24, note 39.
                 "In an annotation on 'what is an action within
          the statutes requiring security  for costs,'  131 A.L.R.
          1476, there is cited Koble v. People (1877), 85 Ill.
          336, wherein it was held tha,t a statute requiring  of
          non-residents  a bond for costs was not applicable  in
          bastardy proceedings by the mother against the putative
          father to compel him to bear part of the burden of the
          support of the child.
                "In the case of Pierce County vs. Magnuson, 1912)
          70 Wash. 639, 127 Pac. 302, Ann. Cas. 1914b, page l389,
          the Supreme Court of Washington, in discussing the ques-
          tion of costs under the Juvenile Court Act of that State,
          said:
                 "'The juvenile   court act makes no provision
          for the awarding or payment of costs,    except the pro-
          vision authorizing    the publication of notice when the
Hon. H. C. Petry,   Jr.,   page 5   (O-6877)


       person standing    in the position    of natural or legal
       guardian of the
                     _-   person  of the  alleged
                                             _.      delinquent
                                                       -.         child
       18 a non-reslaent,     or tne wnereabouts of such peraon
       is unknown. In caees of such publication           of notice,
       it I8 provided that the cost of such publication           shall
       be paid by the county.      Another section provide8 for
       ~~;i~y~ment by the county of salaries         to probation
                 . Otherwise the act Is silent on the question
       of fees and costs.      The awarding and payment of costs
       is purely a matter of statutory       regulation.     The re-
       covery of costs was unknown to the common law, and no
       provision   oould be made for their payment except as
       expressly authorized by statute.         ThLs ruie has been
       one of euch universal application        that it has become
       the simple doctrine     of the court that costs are the
       creation of statutes merely, and that the allowance
       of them in any case would depend entirely          upon the
       terms of some statute.      It has also been held that
       there is no inherent power in the court to award
       costs ) and that they can be granted Zn any case .or
       proceeding solely by virtue of express stitutory
       authority.’
             “Continuing,      the Supreme Court of the state      Of
       Washington, said:
                “‘The doctrine    that costs cannot be awarded ex-
       cept as provided by statute,        applies to criminal as
       well as civil     caees.    In this respect the character
       of the proaeedings create8 no distinction.             In State
       v. Blackburn, 61 Ark. 407, 33 S. W. 529, where It was
       sought to charge the aounty with cost8 in a bastardy
       proceeding,     the court, after laying down the rules
       that the liability       of county for cost8 in criminal
       prosecutions     rest alone on the statute,       concludes by
       saying:      "Our conclusion   is that no one is bound for
       coats, unless rendered so by 8ome porritive provision
       of law, or as a necessary lmpllcation          from provlslon
       of law; and that neither the state nor the county
       is bound even by legal provisions,          unless it is spec-
       ifically     or by necessary implication      named or referred
       to therein .” This rule is supported by the following
       cases, and seems to be generally         accepted as a true
       rule:    . . .I    The court here cited numerous support-
       ing decisions. f
        It is our opinion, therefore, that no judgment for costs
can be awarded against anyone In a proceeding under Article
2338-1.
       Article   2338-1 also    provides   in part as follows:
HOU. H. C. Petry,    page 6   (0-6877)


               a * * l


                  “Sec. 7. Any person may, and any peace o ffic er
         shall,    give to the Judge, County Attorney,       or to the
         Probation Officer       of the county, information    Fn his
         possession     that a child is within the prov3.aiona of
         this Act.     Thereupon the Judge, the County Attorney
         or the Probation Officer shall make or have made,
         preliminary      inquiry to determine whether the lnter-
         ests of the pub110 or of the child require that further
         action be taken.        If etther the Judge or the County
         Attorney mhall determine that formal jurisdiction
         should be acquired,       the County Attorney shall pre-
         pare'and file In the court, or any attorney may
         prepare and file in the court a petition         alleging
         briefly    the facta which bring aaid child within the
         provleions     of this Act, . . .



                "Sec. 19. It La hereby made the duty of every
         county, town or municipal official     or department, to
         render all assistance   and cooperation,within   his or
         ita jurlsdlctlonal   power which may further the ob-
         jects of this Act. . . .'I
         The Dendy case,   175 S. W. (2d)   297, above referred    to,
also   holds as follows:
                "The Act in question sets up a complete jurls-
         diction and procedure for hearing such cases and no-
         where does it provide that either criminal or civil
         procedure shall be followed.    It Is our opinion that
         it contemplates a cooperative   attempt upon the part
         of all the officers   of the court in seeing that the
         best Interest   OS the child is protected  in such
         cases and that he la given every possible    advantage
         for proper training for good citizenship."
        It is our opinion that, under the above p~ovlslon of said
Juvenile Court Act and the last above quoted holding of the Court
Civil Appeals, it is the duty of the county attorney to render
all possible   assistance   in the handling of all cases filed under
said Act.    Such services mupt be performed, however, without com-
pensation,   as no provision   is made In said Juvenile Court Act for
the payment of fees to the county attorney.
       34 Tex. JuP., Sec.     105, p. 508, states the rule     as to the
payment of feea to public     officials as follows:
Hon. I-I. C. Petry,   page 7     (O-6877)


                "Statutes prescribing     feea SOP public officers
        are atrlctly    construed;  and hence a right to fees.may
        not rest In implicatl.on.      Where this right Is left
        to construction,     the language of the law must be
        construed in favor of the government.         Where a statute
        1s capable of two constructions,        one of which would
        give an officer     compensation for hla services     in addi-
        tion to his salary and the other not, the latter con-
        structlon    should be adopted.      It la no concern of an
        officer   that the Legislature     may have been toward
        other offlaers more liberal       than toward him in the
        matter of compensation for services;        nor does this
        fact justify    the courts in upholding his claim SOP com-
        pensation for services     as against a fair and reasonable
        Interpretation     of the statute.     In applying these
        statutes and ascertaining      the Intent of the Legls-
        lature in the meaning of the statute,        the usual
        methoda and rules of interpretation        are applicable.@'
        34 Tex.   Jur.,   Sec.   107, p. 511,   la in p&t     as follows:
               "An officer may not claim or reach any money
        without a law authorizing  him to do so, and clearly
        fixing the amount to which he Is entitled."
         As hereinabove set forth, no provision  Is made for the
payment of a jury fee, yet said Act provides that any person
interested   in any such ease may appear therein and demand a
jury aa in other cases, or that the Judge of the court, of his
own motion, may order a jury to try such case.
        Article   2123 of said     statute   provides   as follows:
                "The right to trial by jury shall remain
        invlolate,    subject to the following rules and
        regulatlons.n
         One of the regulations   following   the above Article is
that application    shall be made In open court SOP a jury and cer-
tain fees be paid In the district       and county courts, but no pro-
vision is made in the Juvenile Court Act for the payment of a
jury fee, though a jury may be demanded or provided for, as
above set forth.     Article  2122 provides that a juror in a
dlstrlct   or county court or county court at law shall receive
certain compensation for his services,       but there is no provision
for the payment of a juror under the Juvenile Court Act; there-
fore, said jurors must serve without compensation.
Hon. H. C. Petry,   page 8   (O-6877)


       For your further InformatIon  we enclose       herewith    copies
of our Opinions Nos. 0-5602 and O-6461.

                                              Yours very truly,
                                        ATTORNEY
                                               GENERALOF TEXAS


                                        By    /a/ Jaa. Ii. Baaaett
                                             Jas. W. Bassett
APPROVEDOCT 25 1945                          Asalstant
/a/ Grover Sellers
Attorney General of Texas
JWB:LJ:B
encls.


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