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                                      October 10, 1960

             I&. J. S. Grisham              Opinion No. WW-947
             Criminal District Attorney
             Canton, Texas                  Re: Liability of State for
                                                Attorneys'Fees in
                                                CondemnationSuits by
             Dear Mr. Grisham:                  Counties
                  We have received your letter in which you request an
             opinion on the question stated by you as follows:
                  "Is it proper for the County to bill the State of Texas
                  for 502 as for the attorney's fees actually expended
                  as part of the court'cost in the.defenseand/or pro-
                  secution of a condemnationcase in the acquisition of
                 gland in the c.onstruction or improvementof's state
                  highway through Van,Zandt County?"
                 .The answer to this question involves a constructionof
             House Bill 620, Chapter 301, Acts of the 55th Le islature,
             Regular Session, 1957, Page 731 (V.A.C.S.Art. 6%73e-l),
             the'pertinentprovisions of which read as follows:
                 "In the acouisition of all rights of way authorizedend
                 requested by the Texas Highway Department, in coopera-
                 tion with local officials, for all highways designated
                 by the State Highway Commissionas United States or
                 State Highways, the Texas Highway Department is autho-
                 rized and directed to pay to the counties and cities
                 not less than fifty.per cent (50%) of the value as deter-
                 mined by the Texas Highway Department of suchrequested
                 right of way, or the net cost thereof, whichever is the
                 lesser amount; provided, that if condemnationis neces-
                 sary, the participationby~the Texas Highway Department
                 shall be based on the final judgment, conditioned that
                 such Department has been notified in writing prior to
                 the filing of such suit and prompt notice is also given
                 as to all action taken therein. Such Department shall
                 have the right to become a party at any time for all
                 purposes, includin the right of appeal at any stage of
                 the proceedings."-7emphasis added)
                  In a letter frointhe County Judge of Van Zandt County
             attached to your letter, it is stated that it is understood
             that it is not.the legal obligation ofthe County and/or
&Ii-,
    J. S. Grisham, Page 2 (WW-947)


District Attorney to represent the Stake ;~:dCoun%y as a
part of his official duties in condemnationssuits to acquire
rights of way for the highways above mentioned. (See Opinion
No. WW-929 dated September 2, 1960.) The same letter also
states that the Texas Highway Departmenthas agreed to pay
fifty per cent (50$) of the court costs assessed against
the County in condemnationsuits to acquire such rights
of way but will not participatein the payment of attorneys'
fees.
     We are concerned with only the items in which the
Highway Department is required to participateas provided
by the above'statute.
     It is to be noticed that under this statute the
Highway Department is required to participatein the pay-
ment for rights of way as follows:
     (1) If the property is purchased,it is required to pay
the countiesand cities notless than fifty per cent (50$)
of the value as determined by the Texas Highway Department
of such-t     cf.my or the net costthereof, whichever is the
lesser amount.
     (2) If it is necessary to file a suit to condemn the
land, the participation (50$).shallbe based upon the final
judgmentbut conditionedthat the Highway Department has been
notifiedin writing prior to the filing of such suit and
prompt notice is also given as to all action taken therein.
     Since participationin a condemnationsuit is based on
the judgment,the amount of court costs adjudged against the
State will be a part of the judgment-
     The sole question, therefore,is whether the attorneys*
fees expendedby.the County'are a part of the court costs.
    In15 Tex Jur 2d, 51-56, it is said!
     Y3ection440
    ltAt&ney fees may be taxed as costs in favor of a
    stakeholder,or in a suit of interpleader,but a liti-
    gant is not liable to his adversary for any sum expended
    by the latter as attorney fees, except in those cases
    where the legislature has otherwiseprovided by sta-
    tutory enactment, or where.the contract so provides."
     "Section459
Mr. J. S. Grisham, Page 3   (WW-947)


     "Various statutes provide for the recovery of attorney
     fees in certain situations,although not all of the
     statutes provide that they are recoverableas costs.
     Among situtationswhere they are recoverable are in
     suits on an insurance policy; suits for partition;
     garnishmentproceedings;and actions involving ser-
     vice by publicationand the appointmentof an attorney
     to defend the party failing to appear. And any person
     having a valid claim against a person or corporation,
     founded on a sworn account or sworn accounts, or for
     personal services rendered, labor done, material fur-
     nished, overchargeson freight or express, lost or
     damaged freight or express, or stock killed or injured;
     may, if the claim is presented and not paid within
     thirty days after presentment,recover, on obtaining
     a final judgment a reasonable amount as attorneys'
     fees, if representedby an attorney."
     There are also.various statutes and court rules allowing
recovery of attorneys' fees as part of the court costs. See
V.A.C.S. Article 7345b(6), Rules 173, S&l+,and 759 Texas Rules
of Civil Procedure.
     We find no applicabie statute or court rule providing
for recovery of attorneysT fees in condemnationsuits either
as a ,matterof recovery in a judgment or as court costs.
     The case of State v. Dyches 28 Texas 536 (1866) was a-
suit where a recovery was had against sureties on a bail
bond for the amount of the bond and costs. The Governor
remittedthe judgment except as to costs. No commissions
for the attorneys representingthe S,tateani.Countywere
includedin the execution for the costs and said officials
filed a'motion to retax the costs to include such commissions,
which motion was overruled. In approving the action of the
lower court, the Supreme Court said:
     Y'he motion in this case, it is believed, is.based
     upon a misapprehensionof the rights of the parties.
     The clerk had no right to tax, as partof~the cost in
     this cause, the amount of~the commissionswhich might
     become due to the attorneys representingthe state,
     on receipt of the money for which judgiuenthas been
     rendered in behalf of the state. The commissions
     which might become due to the officers on collecting
     the judgments are not costs to be taxed against the
     defendants.
     "Costs are 'the expensea of a suit or action which may
     be recovered by law from the losing party.? 1 Bouv.
     Law Die. 231. Costs which are incurred in prosecuting
  Xr- J. S. Grisham, Page 4   (W-947)


       an action are usually adjudged against the losing
       party, in addition to the principal sum which may be
       adjudged against him. Commissionsin this case,
       which might have become due to the attorneys if the
       moneyshad been collected,should have been taken from
       the money so collected,and we.have said the cornmisSions
       did not become due until the money was received."
       In Johnson%. Universal Life & Acc.id~eotIns
  ~Tex.'435,94 S.W. 2d 1145 (1936)  the court co&&%     127~
  Article 4736 R.C.S, 1925 (now Se&ion 3?2 InsuranEe Code)
  which provides that a policy holder may recover attorneys'
  fees which shall be taxed as a part of the costs in the case.
  A question of jurisdictionarose. If the attorneys' fees
  were consideredas a part of the costs, the Court would not
  have jurisdiction,but if such fees were consideredas a
  part of the amount in controversy,the Court would have
  jurisdiction. The Court held that the trial court did
: have ~jurisdictionand said:                                     .-

       "By the term 'costs' is generally understood the fees
       or compensationfixed by law collectibleby the offi-
       -cersof court, witnesses, and such like items, anddoes
       not ordinarily include attorney's fees, which are
       recoverableonly by virtue of contract or'statute.
       ll.Tex.Jur.p. 320; People of Sioux.Countyv* National
       Surety Co., 276 U. S. ~238,.48S.Ct. 239, 72'L,Ed, 547."
       We find no Texas authoritieson the question as to
  whether attorneys'feesin condemnationsuits constitute a
  part of the court costs, but the authoritiesin other
  jurisdictionsseem abundant,,                        1
       The case of Tomten v. Thomas 232 Pac. 2d. 72S3 26 A.L.R,
  2d 1285 (MontanaSupreme Court, 1951) was a condemnation
  suit involvingattorneys', fees. The statute involved pro-
  vided that the amount of damage shall be determined by a
  jury and %uch amount, together with the expenses of the
  proceedingshall be paid by the person to be benefited."
  The cost bill included an item of $750000 for,attorneys*
  fees for defendants' counsel, This item was disallowed
  on plaintiff'smotion to retax the costs. In holding
  that the attorneys' fees were not properly charged'as
  costs, the Court said:
       'ITomake the item of attorneys'fees allowable as a
       taxable cost under section 93-8618 it must first be
       shown that such item is either 9taxableaccording to
       the course and practice of the court, or by express
       provisionof law.? No such showing was made, None
Hr. J. S. Grisham, Page 5   (WW-947)


     can be made. The item is a contract obligation of the
     losing defendants for which the prevailing plaintiff
     is not liable.
     "The person to be benefited by the opening of the road
     is the prevailing plaintiffwho is required to pay the
     amount of damage determinedby the jury 'togetherwith
     the expenses of the proceeding'. Section 93-9923.
     "The teim (exuenses'as emuloved in sections 32-1401
     and 93-9923, kpra, is synonymouswith the term 'costs.'
     "In Chapin v. Collard, 29 Wash 2d 788, 189 P2d 642, 646,
     the court said:
    *‘(We have repeated1 held that 'costs' do not include
    attorneys* fees (otKer than statutory) or accountants'
    fees. In Fiorito vi Coerig, ng   Wash pd 6lY, 179
    P2d 316, 318, we said:
     II
        "*The term 'costs' is synonynlouswith the.teq
    'expense.' Costs are-allowancesto a party for the
    expense incurred in prosecutingor defending a suit,
    and the word ?costs' in the absence of statute or agree-.
    ment does not include counsel fees; in other words,
    counsel fees.are not costs or recoverable expenses
    incurred in prosecutingor defending,a suit, either in
    suits in equity or actions at law.!" n
    The Court, in the above decision, cites several deci-
sions in condemnationcases which hold that attorneys' fees




                                               etc..,R. R.
                                                    & w.
                                            14 Am Jur,
                                            iin, Section~386,

     The court.concludes its opinion with the following
langucge:
     "In Ball v. Vason, 56 Ga 264, 267, it is said: *Let
Mr. J. S. Grisham, Page 6   (WW-947)


    every man pay his own counsel,       The words, costs
    and expenses,were never meant b; ehfs court to apply
    to fees* A.fair constructionwill not make them mean
    fees . o :*
     "All authoritiesagree that attorneys'fees are not
     taxable as part of the costs in an action unless
     specificallyauthorizedby statute. In this state
     there is no provisionof.Constitutionor statute that
     makes the prevailingplaintiff in this action liable
     for the payment.of the attorneys'fees owing by his
     opponents to their counsel. We find no merit 'whatever
     in the appeal and appellantswill stand their own
     costs thereon."
     In the anotatiogsat Page.1296 of A.L,R. 2d it is said:
    "With few exceptions,the courts in the cases in
    which the question has arisen have construed condemna-
    tion statutes which provided for payment of 'costs,'
    'expenses,( 'just compensation,1and the like, without-.
    making any express stipulationas regards attorneys
    fees, as not intendingto provide for the payment of
    such fees, these not being part pf the costa, expenses,
    or just.compensationo8'
     In view of the above, we answer yourquestion in the
negative.


    Attorneys'fees &r condemnationsuits are not a part of
court costso The State Highway Department is not required
under Article 6673e-1 VoA,&,So.toparticipate-inpayment of
attorneys'fees expended by counties and cities in the acqui-
sition of rights of way for State and United Stat;hshighways.
                                Yours very truly,
                                WILL W!ILSON




APPROVED:

OPINIONCOMMITTEE
W.'V, Geppert, Chairman
Hr. J. S. Grisham, Page.7 (W-947)


Richard Wells
Thomas Burrus
C. K. Richards
Bob Rotiland
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonatid.Passmoke
