THEATTOJRNEYGE~~RAI.. OF-XAS

AUSTIN. TEXAS 78711 October 17, 1963

Honorable Henry Wade Criminal DistrictAttorney Dallas County Dallas, Texas OpinionNo. C-164 Re: Proper items of court costs and costs in condemnationproceedDear Mr. Wade: ings.

We have your letter inwhich 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 itemsyou have marked "A - L inclusiveand are as follows:

A - Taxing cost - - _ _ _ _ _ - _ _ _ _ .50 B - Filing and Docketing - - - - - - - - 1.00 .C- RecordingNotice of Lis Pendens - - 2.00 D - Filing fournotices - - - - - - - - 1.00 E - Filing one notice - - - - - - - - - .25 F - Filing interventionof County - - - .25 G - Award of SpecialCommissioners - - - .25 Ii- Order to withdraw funds - - - - - - 1.25

1

_ Judgment - - - _ - _ _ - _ - - _ _ _ 8.00 The above itemsA - I are for the County Clerk. J - Sheriff fees for servingnotices - - 16.00 K-CountyJudgefee---------- 3.00 L - County Law Library fund - - - - - - 1.50Honorable Henry Wade, Page 2 (OpinionNo. c-164 )

You submit the followingquestions: "1. Which of the items listedare 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 holderperforming the service be legally reimbursed for the work done as services rendered?" You state that in view of our OpinionNo, ~~-1008 dated March 7, 1961, it appears to you that Items 0, I& and 1.are proper court costs; that underArticles 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 proceedingnor 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 questionspropoundedby you and we shallbriefly review that opinion, the pertinentparts of which are substantially as follows:

1. The Petition or Statementof Condemnation is filedwith the CountyJudge who appoints the Commissioners. (Article3264, Sec. 2). Neither the Judge, Clerk, nor Sheriff has anythingwhatever to do with the proceeding thereafteruntil the Commissioners file their award or decisionwith 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 thoseby the Clerkwho is entitled to three fees in the amount allowedby law for (1) filing the decision or award, (2) for recording the award, and (3) for recording the judgmentwhich the CountyJudge has made by making the award the judgment of the court. These are the only fees of office that can be chargedby any officer if no objections to the award are filed. If a Lis Pendens Notice is filed the Clerkwill collect the fee providedby law, not as court costs nor -i-37-HonorableHenry Wade, Page 3 (OpinionNo. Cl64)

3.

4. as costs of the proceeding,but as a fee for filingand recording instruments. If the condemnordoes not pay the damages directly to the condemnee,but pays same into court as provldedby Art. 3268(l), and themoney is withdrawnby the condemnee, there is no fee to be collectedby any officer. The money is not withdrawnby 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 proceedingbecomes a civil cause as providedby Art. 3266(6), and the officers are allowed to charge the regular fees allowedby law for services in a civil cause. If the Clerk is required to issue citations,he is authorized to charge a fee allowedby law for such service, IP the Sheriff or Constable is required to serve citations,he is authorized to collect the feesallowedby law for such service, This is the first time that the Sheriff has anything to do with the condemnationproceeding, If objectionsare filed, the cause becomes a civil cause, and the Judge is allowed to collect the fee providedby law for each civil case.

FIRST AND SECOND QUESTIONS We believe that the first two questionspropoundedby you may better be answeredby giving cmr opinion as to each item mentionedby you as follows:

ItemsA 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 proceedingas a civil cause. If no object;onF to the award are filed, then such itemsare not a proper charge in any case.

Item C isnot a proper item of court costs or costs of the proceeding. The party filinga Lis Pendens Notice, even

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

ItemsD, E, and F are not proper items of court costs or costs of the proceeding. These are services to be performed by the Commissionerswho 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 objectionsto 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 isnot 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 themoney ishandledby 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 servedby any person competent to testify. If the Sheriffperforms this service he should collecthis compensation through the proceeding and not through the Clerk.

ItemsK and L are proper items of court costs only if objections to the award are filed and if the proceedingbecomes a civil cause. If no objections are filed, the County Judge does not receive any compensationwhatever 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 shallbe paid by the State of Texas any fees or commissions for any service performedby him; nor shall the State or any countypay to any county

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officer in any county containinga population of twenty thousand (20,000) inhabitantsormore according to the last preceding Federal Census any fee or commission forany serviceby him performed as such officer;provided, however, that the assessor and collector of taxes shall continue to collect and retain for thebenefit of the Officers’ Salary Fund or fundshereinafterprovidedfor, all fees and commissions which he Ls authorizedunder law to collect; and it shallbe his duty to account forand to pay all suchmoneys receivedby 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 eminentdomainproceedingsby the State,but all such costs so paid shallbe accounted forby the officers collecting the same, as they are required under the provisionsof this Act, to account for fees, commissions and costs collected fromorivate oarPrior to the amendment of 1959,Article 3912e prohibited the payment of compensationto district and county officers for any servicesperformedby such offleers for the State or County in condemnationproceedings (other than civil causes) or such services as filingand recording instruments (suchas Lis Pendens) and furnishingcertified copies of instruments.

After quoting the above provision,youmalcethe following statementpertaining to it:

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Honorable Henry Wade, Page 6 (OpinionNo. 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 connectionwith the acquisition of rights of ways for public roads or highways. Therefore, if the above listed itemsare held to not be Court costs or costs of the proceeding, they are surely reimbursableas services renderedunder the above statute." We do not agree with your Interpretationof Article 3912e as above quoted. We believe that It Is clear that the amendment to Article 3912ewas only to allow officers to collect the fees allowedby law for any services in connection with dondemnation suitswhich they were not allowed to collect before the amendment,and that said amendmentwas 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 forwhich no compensation is providedby law. See the authorities cited in OpinionNo. ~~-1008.

The fact that an officermight for conveniencedo some of the work required of the Judge or Commissionersappointed by him does not authorize the payment of compensationnot provided by law. In order to receive compensation,the service renderedby the officermust be required of him and in addition thereto the law must provide forpayment of same.

We believe that this sufficientlyanswersyour third question.

SUMMARY

This opinionpertains to the fees or compensationof officers for services in eminentdomain proceedings. Yours very truly, WAGGONER CARR Attorney General of Texas

HGC/JP- .

Honorable Henry Wade, Page 7 (OpinionNo. C-164 )

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman J. C. Davis MalcotlmQuick William Osborne Leslie King REVIEWED FORTHE ATTORNEYGENERAL By: Stanton Stone

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