THEATTOJRNEYGE~~RAI.. 

OF-XAS 

AUSTIN. TEXAS 78711 

October 17, 1963 

Honorable Henry Wade 

Criminal District Attorney 

Dallas County 

Dallas, Texas 

Opinion No. C-164 

Re: Proper items of court 

costs and costs in 

condemnation proceedDear Mr. Wade: ings. 

We have your letter in which you request an opinion 

pertaining to proper items of court costs and costs in condemnation proceedings. 

You enclose a copy of a Bill of Cost in a condemnation 

suit containing fees for the County ClerkA Sheriff, and County 

Judge, which items you have marked "A - L inclusive and are 

as follows: 

A - Taxing cost - - _ _ _ _ _ - _ _ _ _ .50 

B - Filing and Docketing - - - - - - - - 1.00 

.C - Recording Notice of Lis Pendens - - 2.00 

D - Filing four notices - - - - - - - - 1.00 

E - Filing one notice - - - - - - - - - .25 

F - Filing intervention of County - - - .25 

G - Award of Special Commissioners - - - .25 

Ii - Order to withdraw funds - - - - - - 1.25 

1 _ Judgment - - - _ - _ _ - _ - - _ _ _ 8.00 

The above items A - I are for the County Clerk. 

J - Sheriff fees for serving notices - - 16.00 

K-CountyJudgefee---------- 3.00 

L - County Law Library fund - - - - - - 1.50 
Honorable Henry Wade, Page 2 (Opinion No. c-164 ) 

You submit the following questions: 

"1. Which of the items listed are proper Court costs? 

"2. Which of the items listed are costs 

of the proceeding? 

“3. If any of the items listed are held 

to be not included in either (1) or (2) above, 

can the office holder performing the service 

be legally reimbursed for the work done as 

services rendered?" 

You state that in view of our Opinion No, ~~-1008 dated 

March 7, 1961, it appears to you that Items 0, I& and 1. are 

proper court costs; that under Articles 6640 and 6641, V.A.C.S., 

Item 2 appears to be a proper item of cost; that under Article 

3912e, it appears that Items &B, g, E, 5, and & are costs of 

the proceeding; and that Item L appears to be neither a cost of 

a proceeding nor a court cost. -.You do not express an opinion 

as to Item z. 

It appears to us that our Opinion No. ~~-1008 answers 

all the questions propounded by you and we shall briefly review 

that opinion, the pertinent parts of which are substantially 

as follows: 

1. The Petition or Statement of Condemnation 

is filed with the County Judge who appoints 

the Commissioners. (Article 3264, Sec. 2). 

Neither the Judge, Clerk, nor Sheriff has 

anything whatever to do with the proceeding 

thereafter until the Commissioners file their 

award or decision with the Judge as provided 

by Article 3265(5). 

2. If no objections to the award are filed, then 

the only fees of office that any officer can 

collect are those by the Clerk who is entitled 

to three fees in the amount allowed by law for 

(1) filing the decision or award, (2) for recording the award, and (3) for recording the 

judgment which the County Judge has made by 

making the award the judgment of the court. 

These are the only fees of office that can 

be charged by any officer if no objections 

to the award are filed. If a Lis Pendens 

Notice is filed the Clerk will collect the 

fee provided by law, not as court costs nor 

-i-37- 
Honorable Henry Wade, Page 3 (Opinion No. Cl64) 

3. 

4. 

as costs of the proceeding, but as a fee 

for filing and recording instruments. 

If the condemnor does not pay the damages 

directly to the condemnee, but pays same 

into court as provlded by Art. 3268(l), 

and the money is withdrawn by the condemnee, 

there is no fee to be collected by any officer. The money is not withdrawn by an order 

of the court, but only by an order of the 

condemnee. There is no provision in law 

for paying the Clerk any compensation for 

this service. 

If objections to the award are filed, then 

the proceeding becomes a civil cause as 

provided by Art. 3266(6), and the officers 

are allowed to charge the regular fees 

allowed by law for services in a civil 

cause. If the Clerk is required to issue 

citations, he is authorized to charge a 

fee allowed by law for such service, IP 

the Sheriff or Constable is required to 

serve citations, he is authorized to collect the fees allowed by law for such 

service, This is the first time that the 

Sheriff has anything to do with the condemnation proceeding, If objections are 

filed, the cause becomes a civil cause, 

and the Judge is allowed to collect the 

fee provided by law for each civil case. 

FIRST AND SECOND QUESTIONS 

We believe that the first two questions propounded by 

you may better be answered by giving cmr opinion as to each 

item mentioned by you as follows: 

Items A and B are proper court costs for the Cl~erk 

only if objections to the award or decision are filed and Lhc 

Clerk sets up the proceeding as a civil cause. If no object;onF 

to the award are filed, then such items are not a proper charge 

in any case. 

Item C is not a proper item of court costs or costs of 

the proceeding. The party filing a Lis Pendens Notice, even 

-i’N- 
Honorable Henry Wade, Page 4 (Opinion No. C-164 ) 

if the State or County, under Art. 3219e, V.C.S., is now required to pay the recording and filing fee to the Clerk. 

Items D, E, and F are not proper items of court costs 

or costs of the proceeding. These are services to be performed 

by the Commissioners who are paid for all services as provided 

by Art. 3266(j), V.C.S. Item F is a proper Item of court costs 

if the intervention is filter objections to the award are 

filed. 

Item G is a proper item of costs in every case. In 

addition~is, the Clerk is, in every case, entitled to a 

fee for recording the award if that is done. If the judgment 

and award are combined in one instrument, then only one fee is 

charged. 

Item H is not a proper item of court costs or costs of 

the proceeding. The law does not make any provision for any 

fee for such service even if the money is handled by the Clerk. 

Item I Is a proper Item of costs in every case, However, 

we cannot say that the amount of $8.00 set out is a proper 

amount. Art. 3930, V.C.S., sets the amount of the fee. 

Item J is not a proper item of court costs. It is a 

proper item of costs of the proceeding. Under Art. 3264(6), 

V.C.S.) the notices may be served by any person competent to 

testify. If the Sheriff performs this service he should collect his compensation through the proceeding and not through 

the Clerk. 

Items K and L are proper items of court costs only if 

objections to the award are filed and if the proceeding becomes a civil cause. If no objections are filed, the County 

Judge does not receive any compensation whatever and no 

library fee is charged. 

THIRD QUESTION 

You quote Section 1 of Article 3912e, V.C.S., and 

underline and emphasize the last clause or proviso of said 

Article as follows: 

“Section 1. No district officer 

shall be paid by the State of Texas 

any fees or commissions for any service performed by him; nor shall the 

State or any county pay to any county 

-799- 
Honorable Henry Wade, Page 5 (Opinion No. C-164 ) 

officer in any county containing a 

population of twenty thousand (20,000) 

inhabitants or more according to the 

last preceding Federal Census any fee 

or commission for any service by him 

performed as such officer; provided, 

however, that the assessor and collector 

of taxes shall continue to collect and 

retain for the benefit of the Officers’ 

Salary Fund or funds hereinafter provided for, all fees and commissions 

which he Ls authorized under law to 

collect; and it shall be his duty to 

account for and to pay all such moneys 

received by him into the fund or funds 

created and provided for under the 

provisions of this Act; provided further, 

that the provisions of this Section shall 

not affect the payment of costs in civil 

cases or eminent domain proceedings by 

the State, but all such costs so paid 

shall be accounted for by the officers 

collecting the same, as they are required under the provisions of this 

Act, to account for fees, commissions 

and costs collected from orivate oarPrior to the amendment of 1959, Article 3912e prohibited 

the payment of compensation to district and county officers for 

any services performed by such offleers for the State or County 

in condemnation proceedings (other than civil causes) or such 

services as filing and recording instruments (such as Lis Pendens) and furnishing certified copies of instruments. 

After quoting the above provision, you malce the following statement pertaining to it: 

-8OO- 
i _., 

Honorable Henry Wade, Page 6 (Opinion No. C-164 ) 

"It Is clear that Section 1, Article 

3912e, V.A.C.S., intends for County officers to be reimbursed for all services 

rendered in connection with the acquisition of rights of ways for public roads 

or highways. Therefore, if the above 

listed items are held to not be Court 

costs or costs of the proceeding, they 

are surely reimbursable as services 

rendered under the above statute." 

We do not agree with your Interpretation of Article 

3912e as above quoted. We believe that It Is clear that the 

amendment to Article 3912e was only to allow officers to 

collect the fees allowed by law for any services in connection 

with dondemnation suits which they were not allowed to collect 

before the amendment, and that said amendment was not intended 

to allow the officers to collect for a service that they are 

not required to render, or any compensation for any service 

they are required to render for which no compensation is provided by law. See the authorities cited in Opinion No. ~~-1008. 

The fact that an officer might for convenience do some 

of the work required of the Judge or Commissioners appointed 

by him does not authorize the payment of compensation not provided by law. In order to receive compensation, the service 

rendered by the officer must be required of him and in addition thereto the law must provide for payment of same. 

We believe that this sufficiently answers your third 

question. 

SUMMARY 

This opinion pertains to the fees or 

compensation of officers for services in 

eminent domain proceedings. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

HGC/JP 
- . 

Honorable Henry Wade, Page 7 (Opinion No. C-164 ) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

J. C. Davis 

Malcotlm Quick 

William Osborne 

Leslie King 

REVIEWED FORTHE ATTORNEYGENERAL 

By: Stanton Stone 

-802-