The Honorable H. H. Wellborn
County Attorney
Rusk County
Henderson, Texas
                               Opinion No. ww-856
                               Re:   Que'stionsconcerning
                                     the collection of court
                                     costs In proceedings
                                     under the Texas Probate
                                     Code, in which a person
                                     is found to be of unsound
                                     mind
                                     .    or .to be an habitual
Dear Mr. Wellborn:                   drunkard.
     You have requested an opinion concerning certain ques-
tions arising under Section 247 of the Texas Probate Code,
which provides for the payment of costs in proceedings in
which a person Is determined to be of unsound mind or to
be an habitual drunkard. Section 247 is as follows:
           "When any person is found to be of
     unsound mind or to be an habitual drunkard,
     the cost of the proceeding shall be paid out
     of his estate, or, if his estate be insuf-
     ficient to pay the same, such costs shall be
     paid out of the county treasury, and the judg-
     ment of the court shall be accordingly. Acts
     1955, 54th Leg., p. 88, ch. 55.”
     As we interpret your request, the following questions are
raised:
     1.   Does Section 247 contemplate that before
          the costs of the proceeding are collected
          the court shall first determine whether
          the person declared to be of unsound mind
          or an habitual drunkard has an estate suf-
          ficient to pay such costs?
     2.   If it Is not necessary under the statute
          for the court to make such a determination
          before the costs are collected, then
The Honorable H. H. Wellborn, page 2 (WW-856)


           (a) If it abpears that the estate
     of the person who is the subject of the
     proceedings is not sufficient to pay the
     costs of the proceedings, is the county
     clerk to collect the costs from the county
     treasurer before issuing process?
           (b) If the county treasurer should
     pay the costs from the county treasury and
     it should later be determined by the Court
     that the estate is sufficient to pay such
     costs, should the treasurer seek reimburse-
     ment, and, if so, what would be the proper
     procedure for obtaining such reimbursement?

     3.   Whose duty is it to collect costs from
          an estate which has been sufficient to
          pay the costs of the proceedings?
     In answer to Question 1 above, it is our opinion
that Section 247 contemplates that collection of court
costs shall proceed only after the court has determin-
ed whether the estate Is sufficient to pay the costs
of the proceedings. In this connection It should be
noted first that Section 247 is applicable only in a
case where a person "is found to be of unsound mind
or to be an habitual drunkard"; thus, the mere institu-
tion of proceedings in which a person is alleged to be
of unsound mind or to be an habitual drunkard is not
sufficient to bring Section 247 into operation. It is
required rather that the court have made a finding that
the subject of the proceedings is of unsound mind or
is an habitual drunkard.
     Section 247 does not require that such judgment ex-
pressly reflect that a determination as to the insuf-
ficiency of the estate to pay the costs has been made.
It does, however, require that the judgment assess the
costs on the basis of the estate's actual sufficiency
or insufficiency, which In turn would make it necessary
that the court arrive at a conclusion as to the condition
of the estate before entering judgment.
     Inasmuch as the statute is not applicable until a
person has been judicially found to be of unsound mind
The Honorable H, H. Wellborn, page 3 (~~-856)


or an habitual drunkard, Questions 2 (a) and 2 (b) above,
regarding collection of costs before issuing process or
before a determination by the court as to the sufficiency
of the estate to pay the costs, do not arise.
     Turning now to Question 3 above, it is our opinion
that the collection of costs in a proceeding to which
Section 247 is applicable, and in which the estate is
sufficient to pay the costs, is to be carried out in the
same manner as the collection of costs in other proceed-
ings in the county court. Thus it is the duty of the
clerk to tax the<costs and If necessary to issue execu-
tion to collect them. Rule 622, Rules of Civil Procedure;
see 11-A Tex. Jur.< "Costs," B 59.

                          SUMMARY

        (1)   It is the intention of Section 247
              of the Texas Probate Code that before
              the costs of a proceeding to determine
              whether a person is of unsound mind or
              Is an habitual drunkard are collected,
              the Court shall have determined whether
              such person has an estate sufficient to
              pay such costs.
        (2)   In the case of an estate which is suf-
              ficient to pay the costs, it is the duty
              of the County Clerk to tax the costs and
              if necessary to issue execution to collect
              them.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas




LH:ms
The Honorable H. H. Wellborn, page 4 (W-856)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Shultz
Martin DeStefano
F. C. Jack Goodman
William H. Pool, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By Leonard Passmore
