EATTORNEYGENERAL 

OFTEXAS 

Ausnnr 11,TExAS 

March 7, 1961 

Mr. D. C. Greer Cpinion No. 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 in which 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 counties as 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 objections are filed to the decision of the 

special commissioners. 

2. Where the decision of the special commissioners 

is filed with the judge but no objections are filed thereto 

within the time prescribed by law. 

In answering the above questions, we should first 

notice the nature and particular procedure to be followed 

in condemnation suits. UnderArticle 3264 V.C.S. we find 

the following procedure for hearings before the special 

commissioners. 

judge?. 

The statement (or petition) is filed with the county 

2. The county judge appoints the special commissioners. 

3. An oath is taken by the commissioners. 

4. The commissioners set the time and place for hearing. 

5. The commissioners issue notices to the interested 

parties. 

6. The notices may be served by any person competent 

to testify. 
Mr. D. C. Greer, page 2 (WW-1008) 

7. The notices are returned to the commissioners. 

8. The commissioners may compel attendance of witnesses, 

production of testimony, administer oaths, and punish for contempt, as provided by law for judges of county courts. 

9. The commissioners proceed to hear the parties. 

Article 3265 V.C.S. states the rule for assessing damages 

by the commissioners and provides that they shall reduce 

their decision to wrking and sign and file it with the 

county judge. 

Under Article 3266 V.C.S. the commissioners adjudge the 

costs and shall make a statement in writing of all the costs 

which have accrued and state against whom such costs have been 

adjudged and file such statement with the other papers. 

The above constitutes everything that 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 

P 

etition is filed, 

3) 

(2) who appoints the commissioners, and 

with whom the decision of the commissioners is 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 is made thereto, it is 

held to be sufficient. Sinclair Pipeline Company vs 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 -iHowever, ism. o 

immaterial to the decision of the matter in question. 

It is true that in many instances we find that for convenience, the county judge will 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 clerk up to the filing of the 

award with the county judge and anything that the clerk does, 

even under the direction or request of the county judge, is 

only for the convenience of the judge and parties involved. 

There is no provision in law for any compensation for either 

the judge or clerk up 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 services up to the point mentioned. 34 Tex.Jur. 531, 

Public Officers, Sec. 1.16; Rice V~ Roberts, 177 S,W. 149 
Mr. 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 in writing of all the costs which 

have accrued. These costs are not costs of any officer, but 

consist only of the compensation of commissioners, the cost of 

serving notices, and all other matters pertaining to the 

hearing. 

1. WHEN OBJECTIONS TO AWARD ARE FILED 

Article 3266(6) V.C.S. provides as follows: 

"6. If either party be dissatisfied with the 

decision, such party may within ten days after the 

same has been filed with the county judge file his 

objection thereto in writing, setting forth the 

grounds of his objection, and thereupon the adverse 

party shall be cited and the cause shall be tried 

and determined as in other civil causes in the county 

court." 

It has been held that objections may be filed with the 

county clerk as well as with the county judge. See Henderson 

v. Texas Turnpike Authority, 308 S.W.Zd 199 (Civ.App. 1957, 

error ref.). 

When objections to the decision or award are filed, 

the condemnation proceeding for the first time becomes a 

civil case. See Pearson v. State, 159 Tex. 66,~ 315 S.W.2d 

935 (19581, and Henderson v. Turnpike Authority, 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 OBJECTIONS TO AWARD ARE FILED 

The following discussion a plies 

no objections ars filed to the B 

only to caaea where 

hoision or award of the 

special aommi86ionsr8. 

The answor to the second qurstlon presents a different 

situation from the first one. 
Mr, D. C. Greer, Page 4. (WW-1008) 

Article 3266(7) V,C.S. provides as 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 the minutes of the 

County Court, and shall make the same the judgment 

of the court and issue the necessary pro,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 commissioners to 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 Turnpike decisions, 

suvra. if no objections to,therd are filed the case never 

becomes a "civii case." Therefore, the fees, prescribed by 

law for civil cases are not proper items of cost where 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 fees which are not proper 

items of cost but we mention these two for the reason we 

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.commissioners recorded 

in the minutes of the county court and shall make the same 

the judgment of the court, We believe that this means 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 court minutes, and (3) record the judgment in the court 

minutes. Since the statute requires the award to be recorded 

in the,minutes of the court and made the judgment of the court, 

we believe that under Article 3930 the clerk is entitled in 

all cases to charge the following fees: (1) 25$ for filing the 

decision or award, (2) 20# for each 100 words for recording 

the award with a minimum charge of $l,OO, and (3) $1.00 for 

recording the judgment up 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 specifically prescribed by 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 should be necessary 

for the judge as provided by Article 3266(7) to issue 

process to enforce the judgment, in which event any officer 

performing any duties will charge the fees authorized by 

law. 

SUMMARY 

In condemnation suits the proper items of 

cost to be charged are as follows: 

1. Where objections to the decision or 

award of the commissioners are filed, the same 

costs provided by law for any civil case are to 

be charged. 

2. If no objections to the award are filed 

the costs which are or are not to be charged are 

as follows: 

(a) The county clerk is entitled under 

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 services actually performed and for 

which a fee is prescribed by law. 

(b) The county judge is not entitled to any 

fee in any case. 

(c) No library fee shall be 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 prescribed by law. 

Yours very truly, 

WILL WILSON 

Attorney General 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 General by: 

Morgan Nesbitt