    The Honorable             Charles    D.   Houston                  Opinion    No.   H- 725
    County Attorney
    Austin County                                                      Re:   The taxation   as costs  of the
    P.   0.      Box 83                                                county law library    fee in probation
    Bellville,        Texas      77418                                 proceedings    in the county court.


    Dear      Mr.     Houston:

            You have requested       our opinion as to the scope and application    of
    article    1702i,   V. T. C. S. , which provides   for the establishment   of county
    law libraries      in counties   with a population  of 350, 000 or less and provides
    further    in section   4 that:

                                      For the purpose         of establishing    County Law
                                 Libraries     after the entry        of such order,     there
                                 may be taxed,        collected    and paid as other costs          in
                                 each civil case,       except    suits for delinquent       taxes,
                                 hereafter    filed in every       county or District       Court,     a
                                 sum to be fixed by the Commissioners                 Court of the
                                 respective     counties     within the State of Texas,         not to
                                 exceed    Five ($5.00)       Dollars    in each case;     provided,
                                 however,     that in no event shall the county be liable
                                 for said costs      in any case.        Such costs    shall be
                                 collected    by the Clerks       of the respective       Courts     in
                                 said counties      and paid by said Clerks         to the County
                                 Treasurer,       to be kept by said Treasurer            in a sepa-
                                 rate fund to be known as “County              Law Library       Fund.,”
                                 Such fund shall not be used for any other purpose.

          By        resolution   your    Commissioners         Court    has   set the amount      of costs   at
    $5. 00.         You specifically      ask us,

                                      Are Probate     matters,     such as the administration    of
                                 estates,   the appointment      of guardians,   and commitments
                                 to the state hospital,      “CIVIL   CASES”   within the meaning
                                 of Article   1702i,   and should the library     fee of $5. 00 be
                                 taxed as costs     therein?


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The   Honorable    Charles   D.   Houston   - page   two     (H-725)




      Proceedings    within the jurisdiction     of the probate   court are governed     by
the Texas   Probate   Code,    enacted   in 1955 and effective    on January    1, 1956.
Prob.   Code $ 2(a).    Costs   in probate   matters   are referred    to in section  12 of
the Code which provides       in part:

                         (a) Applicability   of Laws Regulating      Costs.   The
                      provisions    of law regulating  costs    in ordinary  civil
                      cases   shall apply to all matters     in probate   when not
                      expressly    provided  for this Code.

      There is nothing in the Code which covers              costs for county law libraries
and the cost provision   of 1702i would therefore            apply to probate    proceedings
except where   otherwise   interpreted and limited           by the Courts    of Texas.

      In Hogan v. Turland,    428 S. W. 2d 316 (Tex. Sup.  1968),             the Supreme
Court of Texas,   in defining  a civil action or case as opposed              to a criminal
action,  noted, with regard   to a mandamus   proceeding,  that

                       [t 1he civil nature of the action        is demonstrated
                      by the fact that it is not brought        by nor in the name
                      of the state.  . . .

      Accordingly,       we are of the opinion     that the county library       fee is taxable   as
costs   in all probate     proceedings     except where the action      is brought     by or in the
name of the state as where           the confinement   of a person    of unsound mind or a
habitual    drunkard     is sought under the provisions      of section     415 of the Code.     But
see Ex Parte      Carson,      159 S. W. 2d 126 (Tex. Crim. App.          1942),   holding an earlier
Gcket      bill relating    to library   fees to be a local or special       law.

      We also refer     you to section    246 of the Probate    Code which allows      the court,
in its discretion,    to order   that “no costs.    . . be charged   in  connection   with. . .
(a guardianship)     proceeding”     wherein  a guardian    is appointed    for the sole “purpose
of enabling    a person   to receive   public assistance    which is contingent     upon need
, .    . !I


                                    SUMMARY

                         The county law library       fee provided   by article
                      1702i.   V. T. C. S.,   may be taxed as costs,     within
                      the meaning     of article   1702i, in all probate   pro-
                      ceedings    except   an action brought    for the purpose
                      of confining    a person   of unsound   mind or a habitual
                      drunkard.




                                                  Attorney      General   of Texas
The    Honorable   Charles   D.   Houston    - page   three




Opinion    Committee

jad:




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