August 31, 1987 

Rouorable W. C. Kirkendall 

District Attorney 

25th Judicial District 

113 South River, Suite 205 

Seguin, Texas 78155 

Opinion No. JR-779 

Re: Whether a district attorney is required to reimburse 

a county clerk for services 

rendered pursuant to a bond 

forfeiture proceeding 

Dear Mr. Kirkendall: 

You ask whether a district attorney's office is required to pay a 

fee to the county clerk to file an abstract of a final judgment issued 

against a principal or surety in a bond forfeiture proceeditig. We 

conclude that the district attorney need not pay such a fee. 

A bond forfeiture proceeding is a criminal action, but after the 

entry of a judgment nisi all further proceedings are governed by the 

Rules of Civil Procedure. Code of Grim. Proc. art. 22.10; Tinker v. 

g, 561 S.W.2d 200 (Tex. Grim. App. 1978); Blue v. State, 341 

S.W.2d 917, 919 (Tex. Grim. App. 1960). Article 22.14 of the Code of 

Criminal Procedure specifically provides that final judgments in bond 

forfeiture proceedings "shall be collected by execution as in civil 

actions." If a bond forfeiture hearing is concluded ~with a judgment 

in favor of the state, then the award can be secured, at least in 

part, by the creation of a lien against real property belonging to a 

judgment debtor. To create such a lien, an abstract of judgment must 

be filed in the county clerk's office for each county where real 

property of the judgment debtor is to be found. V.T.C.S. art. 5447. 

5448. Filing the abstract of judgment creates a lien against any 

property owned, or after-acquired, by the j,udgment debtor. A lien is 

valid for an initial period of ten years if the judgment on which it 

is based does not become dormant. Article 5499, V.T.C.S. art. 5449. 

The county clerk is authorized by section 51.318 of the Government Code to charge a fee for recording abstracts of judgment. But 

p. 3667 
Eonorable W. C. Kirkendall - Page 2 m-f-779) 

article 3912e. 1 

at section one, provides, in part, that 

[nlo district officer shall be paid by the State 

of Texas zany ~fees or cmmissions~-for any service -~ 

performed by him; nor shall the State or any 

county pay to any county officer in any county 

containing a population of twenty thousand 

(20,000) inhabitants or more . . . any fee or 

commission for any service by him performed .as 

such officer . . . 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. . . . 

V.T.C.S. art. 3912e, -01. 

In Attorney General Opinion w-628 (1959), this office observed 

that: 

It is noted that the prohibitions contained in 

Sections 1 and 3 of Article 3912e . . . concerning 

the payment of fees or commissions by the State do 

not apply to the payment of costs . . . by the 

State where the fees earned ~constitute a part of 

the cost assessed against the State in a particular case. Therefore, such cost must be paid by 

the State as provided by law rather than as a fee 

to the individual officer. (Emphasis added.) 

See also Attorney General Opinions M-134 (1967); WW-658 (1959); WW-508 

(1958); O-807 (1939). Compare Attorney General Opinion M-168 (1967) 

(filing fees in criminal cases need not be paid). 

The charge levied by a county clerk for recording an abstract of 

judgment is not a “cost” in the sense that word is used in article 

3912e; as such, the district attorney need not pay it. This office 

has previously concluded that the fee charged by a county clerk for 

recording an abstract of judgment in a tax delinquency suit is not a 

part of the “costs” attributable to the litigation on which the 

judgment is based. Article 3912e thus excuses the state from paying 

the statutory fee. See Attorney General Opinion MW-308 (1981). Cf. 

Williams v. Simon, 235S.W. 257 (Tex. Civ. App. - Austin 1921, writ 

1. Article 3912e. V.T.C.S., has been repealed and replaced, 

effective September 1, 1987, with the Local Government Code. See Acts 

- 

1987, 70th Leg., ch. 149, 951. 49. 

P. 3668 
Honorable W. C. Kirkendall - Page 3 (JM-779) 

dism'd w.o.j.) (recording a "muniment of title" has never been 

recognized as generating a "cost" taxable to a party on a suit). 

SUMM~ARY 

The county clerk is authorized by the 

Government Code, section 51.318 to charge a fee 

for recording an abstract of a final judgment. 

The clerk may not collect the fee when-a district 

attorney seeks to file an abstract of a final 

judgment from a bond forfeiture proceeding, 

article 3912e. section 1. V.T.C.S. 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

P. 3669