Ex Parte Carson

• Decision Date: 07 January 1942
• Docket Number: No. 21912.,21912.
• Citation: 159 S.W.2d 126
• Parties: Ex parte CARSON.
• Court: Texas Court of Criminal Appeals

159 S.W.2d 126

Ex parte CARSON.

No. 21912.

Court of Criminal Appeals of Texas.

January 7, 1942.

Rehearing Denied March 11, 1942.

Appeal from County Court at Law No. 2, Harris County; Phil D. Woodruff, Judge.

Ex parte habeas corpus proceeding by Sam Carson. From an order remanding relator to custody, he appeals.

Affirmed, with instructions.

J. S. Bracewell and Jesse A. Pardue, both of Houston, for appellant.

Dan W. Jackson, Cr. Dist. Atty., and Tod R. Adams, Asst. Cr. Dist. Atty., both of Houston, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Sam Carson was convicted in the Justice Court of Harris County upon a charge based upon a state law and for an offense of which that court had jurisdiction. He appealed to the County Court at Law No. Two, where he was again convicted and fined Five Dollars. There being no right of further appeal, he instituted proceedings to effect his release by applying for a writ of habeas corpus to the County Court. Relator being remanded, appeal has come from such order.

While the attack is general on the judgment against him, we understand that the principal purpose of the appeal is leveled at an item of One Dollar costs taxed against him by reason of the provisions of an Act of the Forty Seventh Legislature, known as House Bill 569, c. 317, Vernon's Ann.Civ.St. art. 1702a, providing that there shall be taxed, collected and paid as other costs the sum of One Dollar in each case, civil and criminal, with certain named exceptions, but limiting its operation to counties having eight or more district courts and three or more county courts, including county courts at law. Provision is made in said Act for the payment of this item when collected into a fund to be known as the "County Law Library Fund" which is available to be used for certain costs and expenses in acquiring, maintaining and operating a law library available to the judges of the courts and to the attorneys of litigants in the courts. The constitutionality of this law is under attack.

The burden of the briefs and arguments of both sides to this appeal consists of discussions of conflicting decisions in other jurisdictions on the subject of whether or not such charge can be legitimately considered to be proper "costs" in the trial of a case.

The reasoning in both lines of decisions appeal to us to be more or less based upon an arbitrary conclusion and for that reason are not quoted. On one side the courts take the view that the costs may be taxed as a proper item because the money is used in the establishment and maintenance of a law library which, it is stated, is a legitimate charge on the litigants. We find ourselves unable to accept that view. Such reasoning would lead into fields of expenditures which may as well include the cost of the court houses, the automobiles which officers use to apprehend criminals and even the roads upon which they ride. If something so remote as a law library may be properly charged to the litigant on the theory that it better prepares the courts and the attorneys for the performance of their duties, it occurs to us that we might as logically tax an item of cost for the education of such attorneys and judges and even the endowments of the schools which they attend. Many other illustrations might be used appropriately to show the fallacy of such contention and the inevitable result that litigation in the courts would be prohibitive. We, therefore, conclude, as several states have, that the tax imposed by the bill is not and cannot be logically considered a proper item of cost in litigation, particularly in criminal cases.

We have also concluded that the Act of the Legislature under which the item of cost is taxed is unconstitutional as being a local or special law passed in contravention of Section 56 of Article 3 of the Constitution of the State of Texas, Vernon's Ann.St., and sustain appellant's contention on this ground. Inasmuch as the law here under consideration is based upon the number of courts in a county, we may take judicial knowledge that it applies only to Dallas and Harris Counties, while other counties similarly situated, such as Tarrant, Bexar and probably McLennan, El Paso, Galveston and Jefferson, are not included because they do not have the prescribed number of courts. If the Act applies logically and reasonably to a section of the State demanding the legislation and is fitted to all of that portion logically coming within the purposes involved, then it might not be obnoxious to such provisions of the Constitution. If it is an arbitrary classification of counties designed for the purpose of applying to one or more counties which the Legislature has in mind, then, under the holdings of this Court and of the Supreme Court of Texas, we think that it is void.

It will be enlightening if we look into the history of the legislation dealing with the subject before us for the purpose of determining the intention of the Legislature in this respect. In so doing, however, we disclaim any intention to pass on any question which may not be before us and which does not relate alone to the Act under consideration.

Articles 1697 to 1702, Vernon's Ann.Civ. St., Acts of the First Called Session, 1921, authorize the establishment of law libraries in counties having a city of 160,000 population, said libraries to be financed by appropriations from the general county fund. (Note that this will also include both Harris and Dallas Counties, and that the Act in question may be considered as an amendment or modification of the Act of 1921.)

Article 1702a, Acts of the Forty Second Legislature, 1931, authorizes the establishment of law libraries in counties having eight or more district courts and four or more county courts, to be financed by One Dollar fee taxed as costs in civil and criminal cases filed in such courts. (This, likewise, would apply to Harris and Dallas Counties.)

Article 1702b, Acts of the Forty Fifth Legislature, 1937, authorizes the establishment of law libraries in counties having three or more district courts, one of which sits and has jurisdiction of not less than two other counties, none having more than four terms a year, such library to be financed by One Dollar fee taxed as costs in civil and criminal cases.

Article 1702b—1, Acts of the Forty Sixth Legislature, 1939, authorizes the establishment of law libraries in counties having an area not less than 1130 nor more than 1500 square miles, a population of not less than 11,300 nor more than 12,500, and a county seat of not less than 2,200 nor more than 3,000, such library to be financed by One Dollar fee taxed as costs in civil and criminal cases.

Article 1702b—2, Acts of the Forty Sixth Legislature, 1939, separate bill to the foregoing, authorizes the establishment of a county law library in counties having a population of not less than 50,000 nor more than 78,000, provided there is not situated in such county a Court of Civil Appeals, said library to be financed by taxing One Dollar fee as costs in civil and criminal cases.

Article 1702c, Acts of the Forty Sixth Legislature, 1939, in a separate bill, authorizes the establishment of a county law library in counties having a population between 53,500 and 57,000, said library to be financed by a fee of One Dollar taxed as costs in civil and criminal cases.

These Acts preceded the enactment under consideration in this appeal and form a part of the history of such legislation and may, therefore, be considered in determining the purpose of it. We are then...