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       Department of Public Safety
       Camp Mabry
       Austin, Texas
                                     Attention:   Mr. L. G. Deats
         11';'~
                                     Opinion No. O-3404
                                     Re: Should the Department of
                                          Public Safety forward to
                                          the Comptroller of Public
                                          Accounts a voucher for the
                                          issuance of a warrant in
                                          payment of the bill of
                                          costs where destruction
                                          orders were granted on
       Gentlemen:                         gambling paraphernalia?
                 Your recent request for an opinion of this depart-
       ment on the above stated question has been received,
                  We quote from your letter as follows:
                 "I am attaching hereto the copy of a letter
            addressed by the County Clerk of Bexar County to
            Honorable Geo. H. Sheppard, State Comptroller of
            Public Accounts, relative to Bill of Costs in
            Cause No. 31,089, Civil Docket County Co,urt at
            Law MO. 2, Bexar County, together with a copy of
            Mr. Sheppard's letter in reply thereto and a
            copy of the Bill of Costs.
                 "Heretofore, this Department has not paid
            the costs where destruction orders were granted
            on gambling paraphernalia confiscated by officers
            of this Department.
           1.   "I would appreciate your advice as to
           whether or not this Department should forward to
           the Comptroller of Public Accounts a voucher for
           the issuance of a warrant in payment of such
           bill of costs.'
                 The letters mentioned in your inq'uiryfrom the
       County Clerk of Bexar County to Honorable Geo. H. Sheppard
Department of Public Safety, page 2 (o-3404)


and his reply thereto read as follows:
         "We are enclosing herewith three certi-
    fied copies of Bill of Costs in cause No. 31,089,
    styled The State of Texas - vs - Gambling Para-
    phernalia, civil docket of the County Court at
    Law No. 2, of Bexar County. For your further
    information, this case was filed by Mr. R. R.
    Rohatsch, of the State Rangers.
          "Final judgment, granting destr,uctionin
     this cause was ordered on November gth, 1940.
          "We are endeavoring to clear our books of
     all unpaid costs wherein no deposit has been
     made before the end of the year, therefore we
     shall greatly appreciate your negotiable war-
     rant for these costs at your earliest conven-
     ience."
          "I am referring your-letter of December
     the 7th to Homer Garrison, Director, Texas De-
     partment of Public Safety. I am sure he will
     advise you as to what disposition will be made
     of your Bill of Costs."
          The above mentioned proceeding to sec'urean order
to destroy certain gambling paraphernalia was instituted by
a Texas Ranger by virtue of Article 633, 636 and 637 of
Vernon's Annotated Penal Code. It is not specifically
stated in the above quoted letters that the costs in the
proceeding was taxed against the State. The State is bound
by judgments and actions to which it is a party to the same
extent as a private suitor, tho~ughthe judgment may be in
rem. (State vs. Cloudt, 84 S-W, 415, error refused). It
has been broadly stated that costs may not be taxed against
the State in the absence of a statute so providing, and this
appears to be the general rule in other jurisdictions. In
Texas it has been the uniform custom to tax costs against
the State asagainst any other suitor. We quote from the
case of Reed, et al, vs, State, 78 S.W. (2d) 254, as follows:
          "The unpaid costs in said case were taxed
     against the state. No contention is made that
     such costs are unreasonable nor that they were
     not authorized. The Attorney by cross-assignment
     contends, however, that no authority exists in
     law for taxing costs againstthe state, whether
     it be plaintiff or defendant, or whether it be
Department of Public Safety, page~3 (O-3404) :


    successful or not. That se,emsto,.be the,:con-I,,
    elusion reached by the Ed Paso Court of 'Civi~l
    Appealsin Pope V. State; 5&S,,W, (2d) ,492,
    following the general rule announced in 59 C. J.
    332, and 25 R. C. L. 418. It has been the uni-
    form custom, how:ever,where the state has been
    a proper party to a suit, to tax costs against
    itas~ against any.,otherlitigant.:,Necessarily,~.:,:,,
    payment thereof must await appropriations of
    funds for that p'urposeby the Legislature, but.
    such appropriations have habitually been made
    by each,Legis.lature'
                        for many years. Theright,
    and.propriety of taxing such costs aga~instthe,. ,!
    state as a party litigant is, we think, conclu-
    sively foreclosed by the Supreme Court in Houtch-m ;~
    ens v. State, 74 ,S.W, (2d) 976; that being an
    opinion on motion to tax the costs against the
    state and the only issued there presented.
         "The general rule is that, when the state
    enters the courts as a litigant, It places itself
    on the same basis as any other litigant, While
    granted immunities not available to litigants
    generally, e. g., the right to be sued only with
    its consent, not req,uiredto give bond, freedom
    from execution against it, etc., with the ever-
    increasing number of s'uitsto which the state
    Is a party, frequently upon its initiative, It
    would be a harsh rule to say that the officers
    of the co'urtsho,uldbe compelled to render to
    the state without compensation indispensable
    services, no matter how onero'usthey might be."
          Under the heading of maintenance and IdSC~llaneOUS
in the~appropriation for the Department of Public Safety as
shown on page 187 of the Special Laws of the State of Texas
passed by the regular session of the 46th Legislature, it iS
provided "expenses of Director enforcing laws, making in-
vestigations, and to employ men other than Rangers and
narcotic inspectors when necessary, $5000 for the year ending
August 31, 1940, and $5000 for the year ending August 31,
1941"
          The bill of costs attached to your inquiry shows
the amount of costs due to be $4.40. Under the facts stated
we cannot categorically answer your inquiry, however, if the
court has taxed such costs against the state, the above
stated question is respectfully answered in the affirmative,
Department of Public Safety, page 4 (O-3404)


otherwise, in the negative.
         Trusting that the foregoing fully answers    your
inquiry,we are
                                   Yours very truly
APPROVED API325, 1941         ATJYORNEYGEXEEAL OF TEXAS
(Signed) Grover Sellers
                              BY
FIRST ASSISTANT                    (Signed) Ardell Williams
A!F?ORNEYGENERAL                                 Assistant
AWzlh:mj




                                              APPROVED
                                              OPINION
                                             COMMITrEE
                                             BY /s,/BKB
                                               Chairman
