@ffice of tfie Bttornep QSeneral 

&ate of Qexae 

May 22,199l 

Mr. Arnold W. Oliver, P. E. 

Engineer-Director 

Opinion No. DM-26 

State Department of Highways and 

Public Transportation 

Dewitt C. Greer Building 

1 lth & Braxos 

Austin Texas 78701-2483 

Re: Fees payable to county and district 

clerks in eminent domain cases and 

when fees are payable by state agency 

@Q-M) 

Dear Mr. Oliver: 

You have requested our opinion as to when and in what amount fees are 

payabie by the Department of Highways and Public Transportation to district and 

county clerks in eminent domain, or condemnation, proceedings. See generaZIy 

Attorney General Opinions MW-447, MW447A (1982) (state not exempt from 

filing fees in civil cases in district court). 

Section 118.052 of the Local Government Code, establishes a fee schedule to 

be charged by county clerks. That statute provides, in pertinent part: 

Each clerk of a county court shall collect the following fees 

for services rendered to any person: 

(1) CIVIL COURT ACTIONS 

(A) Filing of Original Action (Sec. 118.053): 

(i) Garnishment after judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . $15.00 

(ii) All others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $40.00 

Since a condemnation proceeding is not a “[g]arnishment after judgment,” it 

must perforce be included within the “[a]ll others” category listed above. In 

Attorney General Opinion M-142 (1967) at 2, however, this office declared that “a 

condemnation, in its initial stage, is not a cause, action, or suit in a Court, but is an 

administrative proceeding.” The opinion relied for this proposition on the court’s 

P. 120 
Mr. Arnold W. Oliver, P. E. - Page 2 (DM-26) 

language in Henderson v. Texz Turnpike AZ&, 308 S.W.2d 199 (Tex. Civ. App.-- 

Dallas 1957, writ refd), wherein the court said: 

It is our opinion that with the filing of objections by a 

dissatisfied party the condemnation proceedings are converted 

into a lawsuit as such for the Srst time. Up to that time the 

condemnation proceedings are only administrative proceedings 

in which the Judge acts as an administrative agent, not as the 

Judge of a court performing judicial duties in a pending lawsuit. 

Id at 201; see also Lknton County v. Bmmmer, 361 S.W.2d 198, 200 (Tex. 1962). 

Thus, according to Attorney General Opinion M-142 at 2. fees in such cases “are not 

payable until an objection is filed by the condemnor or a judgment is entered.” 

In our view, this conclusion is correct. Thus, as to condemnation proceedings 

filed in county court, the applicable fee is $40.00, but such fee is not payable until 

either an objection is filed or a judgment is entered. 

Section 51.319 of the Government Code provides that: 

The district clerk shall collect the following fees for services 

performed by the clerk 

. . . . 

(5) for performing any other service prescribed or authorized by 

law for which no fee is set by law, a reasonable fee. 

A 1974 opinion of this office, Attorney General Opinion H-453, construed article 

3928, V.T.C.S.. the predecessor of this provision, to cover the proper fee which “a 

district clerk is permitted to charge in an eminent domain proceeding.” The opinion 

concluded: 

In view of the fact that the Legislature has set a fee of twenty 

five dollars to be charged by county clerks for services rendered 

Pm 121 
Mr. Arnold W. Oliver, P. E. - Page 3 (DM-26) 

in condemnation cases, in our opinion a similar fee would not be 

unreasonable if charged by district clerks in such cases. 

The opinion did not address the question of whm a fee must be paid for 

condemnation proceedings filed in district court. Section 51.317 of the Government 

Code provides: 

(a) The district clerk shah collect at the time the suit or action 

is filed the fees provided by Subsection (b) of this section for 

services performed by the clerk 

(b) The fees are: 

(1) for filing a suit, including an appeal from an 

inferior court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .s35 

As Henderson, supra, established, however, a condemnation proceeding is not 

initially a suit. Thus, neither the fee schedule nor the time of payment provisions of 

section 51.317 are relevant to the filing of such proceedings. 

In our opinion, the conclusion of Attorney General Opinion H-453 is correct: 

a fee collected by a district clerk under section 51.319(S) may be deemed 

“reasonable” if it is set no higher than the fee charged by a county clerk in similar 

proceedings, which is, in this case, a maximum of forty dollars. As to the time of 

collection, we believe that since section 51.319 is silent as to the time of collection, it 

is most reasonable to presume that the legislature intended that any fee be paid at 

the time the proceeding is initiated. Thus, as to condemnation proceedings filed in 

district court, the maximum fee which may be charged to a condemnor is forty 

dollars, and such fee is due at the time the condemnor initiates the proceedings in 

district court. 

SUMMARY 

A county clerk is authorized to assess a fee of $40 

for condemnation proceedings filed in county court, but 

such fee is not due until either an objection is filed to 

P. 122 
Mr. Arnold W. Oliver, P. E. - Page 4 (DM-26) 

the condemnation or a judgment is entered. A district 

clerk is authorized to assess a reasonable fee, not to 

exceed $40, in condemnation proceedings. Such fee is 

payable at the time the condemnor initiates the 

DAN MORALES 

Attorney General of Texas 

WJLL. PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

MADELEJNE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 123