          THEA          O-Y           GENERAL
                       OF   TEXAS




                            June 29, 1962


Mr. Walter E. Wilson             Opinion No. WW-1372
County Attorney
Ector County                    Re:    Whether a district judge
Odessa, Texas                          may assess as court costs
                                       an Investigator's fee for
                                       the invest1 ation required
                                       by Article & 6(a), Section
Dear Mr. Wilson:                       2, Vernon's Civil Statutes.
         In your request for an opinion from this office, you
ask a question which we quote as follows:
              "May a district judge assess as court
        costs an Investigator's fee for the inves-
        tigation required by Article 46(a), Sec. 2,
        V.A.C.S."
         Section 2 of Article 46(a) of Vernon's Civil Statutes,
provides as follows:
              'Sec. 2. Upon the filing of such petition
        for the adoption of any minor child, the court
        or judge shall cause an investigation to be
        made of the former environment and antecedents
        of the child for the purpose of ascertaining
        whether he Is the proper subject for adoption,
        and of the home of the petitioner to determine
        whether it is a suitable home for the child.
        Such Investigation shall be made by a suitable
        person selected by the court; provided, however,
        that the State Department of Public Welfare may
        make an investigation in any adoption case except
        those In which the child was placed for adoption
        by a legally licensed child-placing agency In
        the State. The results of such Investigation
        shall be embodied in full written reports, which
        shall be submitted to the court at or prior to
        the hearing&   the petition, and which shall be
        filed with the records of the proceedings and
        become a part thereof; provided further that a
        representative of the State Department of Public
        Welfare may appear in court if, In the opinion
Mr. Walter E. Wilson, page 2.   (m-1372)


         of the Stdt.Department of Public Welfare
         or the court, the best interest of the child
         will be served."
         The fees and compensation of certain officers and
court appointees are authorized to be taxed as court costs.
Among these are the expenses of Issuing and returning a writ
or order. Dalton v. Rainey, 75 Tex. 516, 13 S.W. 34 (1889).
Receivers fees taxable as a part of the costs to be paid out
of the property involved. Espuela Land & Cattle Co. v. Blndle,
32 S.W. 582 (Clv.App. 1895). The compensation of a surveyor
appointed by the court in an action of trespass to try title.
Beaumont Irrigating Co. v. BeLaune, 173 S.W. 514 (Clv. App.
1915 1. Compensation of a master in chancery appointed by the
court. Rule 171, T.R.C.P. The expense incurred by the sheriff
In caring for attached property. Morgan v. North Texas Nation-
al Bank, 34 S.W. 138 (Civ.App. 18gb), Worley v. Shelton, 86 S.W.
mv.App.       1905); except where the officer caring for the
property Is a mere trespasser who has no right to possession
thereof. Colby v. Mitchell, 33 S.W. 1040 (Clv.App. 1896),
Wilson v. Kerley, 25 S.W.2d 887 (Clv.App. 19X0), and the com-
pensation of an auditor employed by the court to state the
accounts between the parties and make a report thereof. Rule
172 T.R.C.P., Nicholson v. Mills, 227 S.W.2d 354 (Civ.App.
1950, error ref.). Also, In arbitration proceedings between
the employer and employee, the fees and mileage of the arbitra-
tors may properly be taxed as costs against either or all of
the parties to the arbitration, as deemed just, and will con-
stitute a just part of the award. Article 247, Vernon's Civil
Statutes. And certain fees in cases where land is sold to
satisfy taxes are taxed as costs against the land sold. Arti-
cle 7333, Vernon's Civil Statutes.
         Under Section 2 of Article 46(a), Vernon's civil
Statutes, It IS mandatory upon the court to cause an investi-
gation to be made of the former environment and antecedents of
the child as well as the home of the petitioners. Davis v.
Bastin, 205 s.w.2d 838 (civ.App. 1947). However, we have found
no express statutory authority for the assessment of an investi-
gator's fee as court costs.
         When there Is no statute which expressly authorizes
a court appointee's fee, It has been held that such fees
should be fixed and allowed on a reasonable basis taking into
consideration the circumstances of the case, the charges made,
type of work to be performed and, if a hearing is held on the
matter, the evidence offered in support thereof and in oppo-
Mr. Walter E. Wilson, page   3   (WW-1372)


sltion thereto.   Metcalfe v. McCarty, 301 S.W.2d 263 (Clv.
APP. 1957).
         Rule 127 of the Texas Rules of Civil Procedure pro-
vides in part as follows:
               "Each party to a suit shall be
         llabl: for all costs Incurred by him.
         . . .
         The meaning of the word 'incurred' as It appears
In Rule 127 is discussed in 11 Tex. Jur. 292, Costs, Sec. 40,
as follows:
              "Accordingly an Item of costs Is not
        taxable unless it has been 'incurred' by the
        party sought to be charged therewith. The
        word 'incurred' as used In the Rule means
        'brought on', 'occasioned' or 'caused.' A
        party may be said to have 'Incurred' the
        costs If they are the necessary and contem-
        plated result of his conduct in the pro-
        ceeding, such as the costs Incurred by a
        plaintiff suing a minor for the services
        of a guardian ad lltem, . . ."

         Therefore, it is our opinion, based on the auth-
orities treated above, that a district judge who entertains
an adoption petition, has the discretion to fix the amount of
the compensation to be taxed as cost, to be paid to the ln-
vestlgator and, since there is no statute expressly authoriz-
ing an Investigator's fee In this Instance, the allowance of
such fee arises by implication, and consequently, only reason-
able fees should be allowed.


                          SUMMARY


                  A district judge may assess as
                  court costs an investigator's
                  fee for the Investigation re-
                                                              .   -




Mr. Walter E. Wilson, page 4.   (w-1372)

               quired by Article 46(a), Section 2,
               of Vernonls'Clvll Statutes.
                                Very truly yours,
                                WILL WILSON
                                Attorney General of Texas

                                By J.w
                                    I.Ray nd Williams, Jr.\
1RW:mkh:zt                          Assistant



APPROVED:'
OPINION COMMITTEE
W. V. Geppert, Chairman
C. J. Taylor
Pat Bailey
Coleman Gay
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
