The opinion
ON MOTION FOR REHEARING
The District has filed its motion for rehearing asserting fifteen assignments of error supported by a written argument as to some of the assignments. We have carefully reviewed the record in the light of the renewed attack upon our findings and conclusions of law. A brief has been filed by plaintiffs answering some of District’s contentions.
District’s fifteenth assignment, asserting that we erred in assessing all of the costs of this proceeding against the District has caused us to make a new and exhaustive review of that facet of our decision. Admittedly, there are no direct authorities authorizing the assessment of the costs against the District in the type of suit brought by plaintiffs, and there are some very cogent reasons why such should not be done, in the ordinary delinquent tax suit. In plain and unmistakable language, the statutes provide that the State and County shall not be liable for court costs incurred in the collection of delinquent taxes. Article 7297 and 7333, V.A.C.S. Such exemption carries over and inures to the benefit of school districts by virtue of the provisions of Article 7343.
These statutes have béen cited as authority for the proposition that costs in delinquent tax suits may not be assessed against the taxing agencies. City of Waco v. Owens, 442 S.W.2d 324 (Tex.Sup.1969) ; Electra Ind. Sch. Dist. v. W. T. Waggoner Estate, 140 Tex. 483 , 168 S.W.2d 645, 652 (1943), both of which were cited in our original opinion. For other cases with similar holdings see: Lubbock Independent School District v. Owens, 217 S.W.2d 186, 190 (Amarillo Tex.Civ.App., 1948, error ref.); City of Houston v. McCarthy, 371 S.W.2d 587, 589 (Houston Tex.Civ.App., 1963, error ref. n. r. e.); City of Alice v. Bowers-Wright Funeral Home, Inc., 362 S.W.2d 888, 891 (San Antonio Tex.Civ.App., no writ); City of Odessa v. Lea, 381 S.W.2d 153, 156 (El Paso Tex.Civ.App., 1964, no writ); Whelan v. State, 254 S.W.2d 558 (Texarkana Tex.Civ.App., 1953, no writ).
Ordinarily, in the absence of a statute exempting the state or a municipality from the payment of court costs, it is liable just as any other litigant. Reed v. State, 78 S.W.2d 254, 257 (Austin Tex.Civ.App., 1934, error dism.); Ibanez v. State, 123 S.W.2d 704 (El Paso Tex.Civ. App., 1938, no writ); Garrett v. City of Wichita Falls, 334 S.W.2d 624, 626 (Fort Worth Tex.Civ.App., 1960, orig. proceedings).
In this suit, the thrust of plaintiffs’ suit was to compel the District to assess the property in accordance with the constitutional requirement. The suit did not originate as one to recover delinquent taxes; and, we have held that insofar as the year 1968 was concerned, the cross-action to recover delinquent taxes was premature. The effort to collect the delinquent taxes for the year 1967 was not, however, premature. Plaintiffs have prevailed, insofar as the delinquent tax phase of the litigation is concerned only because they were successful in their attack upon the assessments.
An indeterminate and uncertain portion of the court costs in this cause was incurred in connection with the District’s effort to collect the 1967 delinquent taxes. Admittedly, we are without authority to assess costs against the District in its suit to recover the delinquent taxes; and, we are unable to segregate the costs attributable to the delinquent taxes and costs properly charged in connection with the effort to set aside the assessments for each of the two years involved.
In their reply, plaintiffs have not been of great assistance in solving the problem of court costs and we have determined, in view of the uncertainty of the question, both factually and legally, to recede from *203 our prior position with reference to court costs. Accordingly, we now sustain District’s fifteenth assignment in its motion for rehearing, and set aside the portion of our judgment heretofore rendered assessing all costs of court against District. In lieu thereof, it is now Ordered that all costs in all courts be adjudged against the plaintiffs, jointly and severally.
To this extent, and to this extent only, the motion for rehearing is granted; but, as to all other assignments, said motion for rehearing is hereby overruled and refused.
Further motions for rehearing herein will be entertained in compliance with the provisions of the second main paragraph of Rule 458. Honeycutt v. Doss, 410 S.W.2d 772, 773 (Tex.Sup., 1966).