### EATTORNEYGENERAL OFTEXAS
Ausnnr 11,TExAS

March 

### 7,1961

Mr. D. C. Greer CpinionNo. WW-1008 State Highway Engineer Texas Highway Department Re: Proper Items of Court Costs Austin 14, Texas for Officers in Condemnation Suits Dear Mr. Greer: We-have your letter inwhich you ask for an opinion as to proper items of court costs to be charged in condemnation suits. You state that you have had no difficulty in the proper payment of costs incurred in hearings before the special commissioners,but find a difference of opinion in some countiesas to the proper items to be paid to officers as court costs and ask to be advised of the proper items of cost in each of the following instances: 1. Where objectionsare filed to the decision of the special commissioners. 

### 2. Where the decision of the special commissioners is filedwith the judge but no objections are filed thereto within the time prescribedby law.
In answeringthe above questions,we should first notice the nature and particularprocedure to be followed in condemnation suits. UnderArticle 3264 V.C.S.we find the following procedure for hearingsbefore the special commissioners.
judge?. The statement (orpetition) is filedwith the county


### 2. The county judge appoints the special commissioners. 

### 3. An oath is taken by the commissioners. 4. The commissionersset the time and place for hearing. 

### 5. The commissionersissuenotices to the interested parties. 

### 6. The noticesmay be servedby any person competent to testify.Mr. D. C. Greer,page 2 (WW-1008)



### 7. The notices are returned to the commissioners.

8. The commissionersmay compel attendance of witnesses, productionof testimony,administer oaths, and punish for contempt, as providedby law for judges of county courts. 

### 9. The commissionersproceed to hear the parties. Article 

### 3265V.C.S. states the rule for assessingdamages by the commissionersand provides that they shall reduce their decision to wrking and sign and file itwith the county judge. Under Article 

### 3266V.C.S. the commissionersadjudge the costs and shallmake a statement inwriting of all the costs which have accrued and state againstwhom such costshave been adjudged and file such statementwith the other papers. The above constituteseverythingthat is required of the commissioners. We notice that only one officer is involved up to the point of filing the decision or award of the commissioners, and he is the county judge (1)with whom the
Petition is filed, 

### 3) (2)who appoints the commissioners,and withwhom the decision of the commissionersis filed. No duty is required of any officer other than the county judge. If the decision or award is filed with the county clerk instead of the judge and no objection ismade thereto, it is held to be sufficient. Sinclair PipelineCompanyvs Peters,~ 323 S.W.2d 

### 651 (Civ.App.19591 and Cox v. City of Fort Worth, 102 S.W.2d 

### 504 (Civ.App.

### 1937,error ism. o -iHowever, immaterialto the decision of the matter in question.
It is true that inmany instanceswe find that for convenience, the county judgewill also have the clerk file the petition,docket the,case, and give it a number before the judge appoints the commissioners. However, the statutes do not require anything of the clerkup to the filing of the awardwith the county judge and anything that the clerkdoes, even under the direction or request of the county judge, is only for the convenienceof the judge and parties involved. There is no provision in law for any compensationfor either the judge or clerkup to the point of the filing of the award and even though the services of the clerk and judge are of benefit,yet they are not entitled to any compensation for such servicesup to the pointmentioned. 34 Tex.Jur. 

### 531, Public Officers, Sec. 

### 1.16;Rice V~ Roberts, 

### 177S,W. 

### 149Mr. D. C. Greer, Page 3 (WW-1008)

(1915, error'~dism.); McCalla v. C&C% of Rockdale, 112 Tex. 209 246 S.W. 654 (1922);and Hallman v. ChDbf?ll, 57 Tex. 54 (1882f.
As noted above,Article 3266 provides for the commissioners to make a statement inwriting of all the costswhich have accrued. These costs are not costs of any officer,but consist only of the compensationof commissioners,the cost of servingnotices, and all othermatters pertaining to the hearing. 1. WHEN OBJECTIONSTO AWARD ARE FILED Article 3266(6)V.C.S. provides as follows:

"6. If eitherparty be dissatisfiedwith the decision, such partymay within ten days after the same has been filedwith the county judge file his objection thereto inwriting, setting forth the grounds of his objection, and thereupon the adverse party shallbe cited and the cause shall be tried and determined as in other civil causes in the county court."
It has been held that objectionsmay be filedwith the county clerk as well as with the county judge. See Henderson v. Texas TurnpikeAuthority, 308 S.W.Zd 199 (Civ.App.1957, error ref.). Whenobjections to the decision or award are filed, the condemnationproceeding for the first time becomes a civil case. See Pearsonv. State, 159 Tex. 66,~315 S.W.2d 935 (19581,and Hendersonv. TurnpikeAuthority, supra. Our answer to the first question, then, is that when objections to the award or decision are filed the items.of cost thereafter to be charged are the same as in any other civil case. We see no need to advise the items that are or are not properly chargeable.

2. WHEN NO OBJECTIONSTO AWARD ARE FILED
The following discussion a plies no objections ars filed to the B only to caaeawhere hoision or award of the special aommi86ionsr8. The answor to the second qurstlonpresents a different situation from the first one.Mr, D. C. Greer, Page4. (WW-1008)

Article 3266(7)V,C.S. providesas follows: "7. If no objections to the decision are filed within ten (10)days, the County Judge shalX.cause said decision to be recorded in theminutes of the County Court, and shallmake the same the judgment of the court and issue the necessarypro,cess to enforce the same," It is to be noticed that there are only three things to be done in all cases, that is, the judge shall (1) cause the decision or award of.the commissionersto be recorded in the minutes of the county court, (2)make the same the judgment of the court, and, if necessary, (3) issue process to enforce the judgment. We have seen from the Pearson and Turnpikedecisions, suvra. if no objections to,therd are filed the casenever becomes a "civii case." Therefore, the fees, prescribedby law for civil cases are not proper items of costwhere no objections are filed, For example, the fee of the county judge of $5.00 for "each civil case" (Art,3926) is not a proper item of cost, The library fee of $1.50 or $1.00 provided for in various statutes (V.C.S.,Art. 17ORa-1, et seq) to be charged in "each civil case" is not a proper item of cost, There are other feeswhich are not proper items of costbut we mention these two for the reasonwe understand that in some counties it is thought they are proper items to be charged. We have seen under Article 3266(7) the:judge is required to have the decision of the.commissionersrecorded in the minutes of the county court and shallmake the same the judgmentof the court, We believe that thismeans that the clerk shall (1) file the award and give it a number to distinguish it from other cases, (2) record the award in the courtminutes, and (3)record the judgment in the court minutes. Since the statuterequires the award to be recorded in the,minutes of the court and made the judgment of the court, we believe that under Article3930 the clerk is entitled in all cases to charge the following fees: (1) 25$ for filing the decision or award, (2) 20# for each 100words for recording the award with a minimum charge of $l,OO, and (3) $1.00 for recording the judgmentup to 200 words and 20# for each additional 100 words in excess of 200 words. Of course, if the clerk is required to furnish a certified copy of the award or judgment or do anything else,he will be authorized to charge the fee specificallyprescribedby law for such services,Mr. D. C. Greer, Page 5 (WW-1008)

No fees are to be charged for any officer other than the clerk as above set out, unless it shouldbe necessary for the judge as providedby Article 3266(7) to issue process to enforce the judgment, inwhich event any officer performingany dutieswill charge the fees authorizedby law. SUMMARY

In condemnationsuits the proper items of cost to be charged are as follows: 1. Where objections to the decision or award of the commissionersare filed, the same costs providedby law for any civil case are to be charged. 2. If no objections to the award are filed the costswhich are or are not to be chargedare as follows: (a) The county clerk is entitledunder Article 3930 in all cases to charge the fees provided for filing the award, recording the award, and recording the judgment of the court and such other fees for servicesactuallyperformed and for which a fee is prescribedby law. (b) The county judge is not entitled to any fee in any case. (c) No library fee shallbe charged. (d) No other officer is entitled to any fees unless the judge issues some process to enforce the jud~gment of the court in which case the other officers are entitled to the fees prescribedby law.

Yours very truly,
WILL WILSON AttorneyGeneral of Texas

HGC:ncs.. -

Mr. D. C. Greer, Page 6 (Ww-1008)

APPROVED: OPINION COMMITTEE W. V. GEPPERT, Chairman J. Arthur Sandlin Bill Allen Elmer McVey W. Ray Scruggs Reviewed for the Attorney Generalby: Morgan Nesbitt