August 31, 1987

Rouorable W.C.Kirkendall District Attorney 25th Judicial District 113South River, Suite 205 Seguin, Texas 78155 Opinion No. JR-779 Re: Whether adistrict attorney is required to reimburse a county clerk for services rendered pursuant to a bond forfeiture proceeding DearMr. Kirkendall: Youaskwhether adistrict attorney's office is required to paya fee to the county clerk to file anabstract of afinal judgment issued against a principal or surety in a bond forfeiture proceeditig. We conclude that the district attorney need not paysuch afee. Abond forfeiture proceeding is acriminal action, but after the entry of ajudgment 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 abond forfeiture hearing is concluded ~withajudgment in favor of the state, then the award can be secured, at least in part, by the creation of alien against real property belonging to a judgment debtor. Tocreate such alien, anabstract ofjudgment 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 thej,udgment debtor. Alien is valid for an initial period of ten years if thejudgment onwhich 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

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article 3912e. 1at 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 bythe 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 1and3ofArticle 3912e
. . . concerning the payment of fees or commissions bythe State do not apply to the payment of costs
. . .by the State where the fees earned ~constitute apart of the cost assessed against the State in aparticular case. Therefore, such cost must be paid by the State as provided bylaw rather than as afee to the individual officer. (Emphasis added.) Seealso 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). Thecharge levied by acounty clerk for recording anabstract 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 anabstract of judgment in atax 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. SeeActs - 1987, 70th Leg., ch. 149, 951. 49.

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dism'd w.o.j.) (recording a "muniment of title" has never been recognized as generating a"cost" taxable toaparty onasuit). 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. Theclerk maynot 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.

MARYKELLER Executive Assistant Attorney General JUDGEZOLLIESTEAKLEY Special Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared byDonBustion Assistant Attorney General

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