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                  TIIE        L~TNBRNICY             GENERAL
                                   OF     TEXAS




    Honorable  Ned Granger                          Opinion   No.   M-1161
    County Attorney
    Travis County Courthouse                        Re:   Whether the Comptroller       of
    P. 0. Box 1748                                        Public Accounts     is author-
    Austin,     Texas    78767                            ized and/or required       to pay
                                                          court costs    incurred    by the
                                                          State while prosecuting
                                                          cases in Travis County courts
                                                          even though the Governor,
                                                          exercising    his legislative
                                                          function,    has vetoed the
                                                          court cost appropriation
                                                          of the Attorney     General's
                                                          Office    for the current
    Dear Mr. Granger:                                     ye~ar .

         We quote       the following   excerpt  from your letter   requesting
    an Opinion of       this Office   on the above captioned   matter:
                  II       The Court cost appropriation     of the
                  Attorney   General's  office for the current
                  year was vetoed by the Governor       . . . D
                  ,,
                    . a . the Comptroller   of Public Accounts
                  refuses  to reimburse   Travis County for the
                  large amount of court costs for State cases
                  which have accumulated    since the beginning
                  of this fiscal   year (now over $32,OOO).

                  "It would appear that the Comptroller         defi-
                  nitely   has such authority.      On page 111-36,
                  Section   17 of the Comptroller     of Public
                  Accounts'   appropriation    there is an appro-
                  priation   of over $3,000,0001      for 'Consumable



    L/   $3,698.090      is   the exact   amount appropriated        for   fiscal
         year  1971.




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Honorable    Ned Granger,     Page 2     (M-1161)




             supplies   and materials,     current   and recurring
             operating    expense and capital      outlay. I On
             page III-39     of this appropriation,       it is
             stated:     “‘Consumable ~supplies and materials,
             current   and recurring    operating    expense and
             capital   outlay”   shall, include    expenses    for
             tax enforcement     purposes,   court costs,      . . . I”

       At the outset,   we have assumed that the court costs          in
question   were incurred    in tax suits     instituted   by the Attorney
General at the request      of and on behalf       of the Comptroller    of
Public Accounts ~ This we do because the law is well settled
that an appropriation     for a given purpose is valid only If
made in pursuance     of a valid statute.        We d em it unnecessary
to enumerate the various       State t,ax statutes 5 which impose the
duty of enforcing     and collecting     State taxes upon the Comptroller
and require    the Attorney    General to bring suit when necessary
for such enforcement     and collection.

       It is true that the situation           which you have presented
by your request       is unique in Texas history          in that never before
has a Governor of this State vetoed in toto a court costs                  item
in the general      appropriation     for the Attorney        General’s  Office;
and that but for such veto,          the payment of the court costs          in
question    would also be authorized          under this vetoed item.        How-
ever,    the Legislature     additionally      authorized      payment of the
costs    in question    by including      “court   costs”    in the above
quoted portion      of the general      appropriation      for the Comptroller’s
Department ~

       The Comptroller  of Public Accounts has a mandatory duty
to coll.ect  delinquent   taxes, and those which require    court
action   are collected  by the filing    of suits  by the Attorney
General of Texas at t,he specific     request   of the Comptroller.



‘/   Vol.   20A, Taxation-General,       V.A.C.S.




                                     -5661-
Honorable    Ned Granger,      Page 3   (M-1161)




A necessary     incident   to the filing    and disposition     of any
suit by the State of Texas as a plaintiff           is that the State
cast off its robes of sovereign          immunity and stand in court
as any other party or litigant.3           As a party to a civil      suit,
the State of Texas is liable          for the cosbs taxed against       it
as would be any other party to the suit.              The Texas Rules
of Civil    Procedure,    Nos. 125 and 127, requir.ing      that the
parties    pay the court coats ta ed against        them, have the same
force   and effect     as a statute. 3 And while no security        for
costs6   is required     of the State,, this does not lessen       the
duty of the State as a plaintiff          to pay its costs where
the costs are taxed against         it.

        The situation here presented  is one, where court costs
would    have been payable out of either   the Attorney  General’s
funds    or those of the Comptroller,   but for the Governor’s     veto



     52 Tex.Jur.2d,    State    of   Texas, Section    58, page 777;
                                        255 S.W.2d    927   Tex.Civ.App.
                                         185 S.W.2d   993   Tex.Civ.App.




    Rules i25 and’127    (T&as RulLs of Civil    Proceduri;  Dupree
    v. State,   107 S.W. 926 (Tex.Civ.App.   1908, no writ hist.)
    Ekone   v. State,  107 S.W. 927 (Tex.Civ.App.     1908, no writ
    b=;$$d         v. State,  78 S.W.2d 254 (Tex.Civ.App.    1934,
               . 0
    Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (Tex.Sup.
    mP=rI        Assur. Co. v. Williams, 167 S.W.2d 808 (Tex.
    Civ .Appm3,    no wr???h%?t,)

     Art.   2072, V.C.S.




                                     -5662-
Honorable      Ned Granger,    page 4   (M-1161)




of the Attorney    General's    court cost item, and the veto of the
one by the Governor did not prevent        the payment of court costs
by the administrative     agency,    the Comptroller in this in-
stance.  Attorney     General's    Opinion No. M-1105 (1972).

      It is the opinion of this office  that payment of court
costs  due Travis County for the filing  of delinquent  tax suits
could and should be paid by the Comptroller    if he has sufficient
unencumbered funds in his appropriation    to pay such costs.

       You are therefore  advised   that it is the opinion    of this
Office   that the Comptroller   should pay court costs    incurred    bg
the Attorney   General in State tax cases from funds appropriated
to his Department by Item 17 of the current       General Appropriation
Act.

                              SUMMARY

                   The Comptroller of Public Accounts  is au-
            thorized,   and it is his duty, to pay court costs
            for State tax case~s prasecu~ted by the Attorney
            General at the request of the Comptroller,      such
            payment to be made under Item 17, ch. III,      p.
            36 of the current General Appropriation    Act,
            or other appropriate   fund.

                                                   very   truly,




Prepared      by John R. Grace
Assistant      Attorney General




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.      -




    Honorable   Ned Granger,   page 5   (M-1161)




    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor,    Chairman
    W. E. Allen,    Co-Chairman

    James Quick
    Roger Tyler
    Gordon Cass
    Bill Campbell
    John Banks

    SAMUELD. MCDANIEL
    Staff Legal Assistant

    ALFREDWALKER
    Executive Assistant

    NOLA WHITE
    First Assistant




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