Opinion
No. 91CA0624
Decided March 26, 1992.
Appeal from the District Court of the City and County of Denver Honorable Robert S. Hyatt, Judge.
Cherner Blackman, Philip A. Cherner, for Petitioners-Appellees.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Paul S. Sanzo, Assistant Attorney General, for Respondent-Appellant.
Asserting that they were entitled to parole, petitioners, Earl Dee McFarland and Ira Johnson, Jr., filed a petition for a writ of habeas corpus seeking an order directing respondent, Frank O. Gunter, Executive Director of the Department of Corrections, to release them from incarceration. The trial court issued the writ and, after a hearing, ordered the release of petitioners. Subsequently, the court entertained petitioners' cost bill and awarded them costs against the respondent in his official capacity. The sole issue on appeal is whether court costs can be assessed against an officer or agency of the state. We reverse the cost award.
Unless the General Assembly so directs, costs are not taxable against the state, its officers, or agencies. C.R.C.P. 54(d); State Department of Highways v. Anvil Point Properties, Ltd, 722 P.2d 1024 (Colo.App. 1986); cf. Adams County School District 27-J v. Mack's Plumbing Heating, Inc., 824 P.2d 105 (Colo.App. 1991).
Here, petitioners were awarded costs pursuant to § 13-16-104, C.R.S. (1987 Repl. Vol. 6A). However, that statute contains only general provisions entitling a prevailing party to recover costs, and thus, it is not an express authorization allowing the assessment of costs against the State in contravention of C.R.C.P. 54(d). See Shumate v. State Personnel Board, 34 Colo. App. 393, 528 P.2d 404 (1974); cf. Lee v. Department of Health, 718 P.2d 221 (Colo. 1986) (authorizing recovery of costs incurred in tort claim under the Governmental Immunity Act).
In addition, § 13-45-117, C.R.S. (1987 Repl. Vol. 6A) expressly provides for a prisoner's recovery of costs ancillary to specified statutory penalties or forfeitures in habeas corpus matters. Had the General Assembly intended to allow cost recovery in habeas corpus proceedings generally, rather than only in such limited circumstances, it could have enacted legislation so stating.
That portion of the trial court's judgment awarding cost recovery to the petitioners is reversed.
JUDGE SMITH and JUDGE NEY concur.