OFFICE OF 

HE AT GpNERAL 

AUSTIN, TEXAS 

PRICE DANIEL 

**TORNEY GERERAL March 1, 1948 

Hon. Geo. H. Sheppard Oplnlon No. v-513 

Comptroller of Public Accounts 

Austin, Texas Re: Fees of district 

clerk of a fee ~county for reoordlng 

sheriff's return on 

process served In a 

salary county. 

Dear Sir: 

Your letter requesting an opinion from this Department on the above subject matter is, In part, as follows: 

'There is some doubt in this deTEarrnt aa to whether the clerk in an 

* county on a fee basis Is entitled 

to receive a fee of fift 

recording the Sheriff's R 

(508) cents for 

eturn from an 

I over t county where the subpoena has been 

Issued by the clerk of the 'under' county 

directed to the sheriff OS the lover'~:county and the sheriff of the 'over' county 

has duly executed same and returned said 

subpoena to the clerk of the 'under' oountY* 

"I shall thank you to advise this department whether the clerk of the 'under' 

is entitled to the 

cent See for recording the 

. a . . 

"I am enclosing herewith a letter 

from the Honorable W. B. Clift, District 

Clerk of the 92th District Court, Stephens 

County, Texas. 

Article 1026, V. C. C. P., reads, in part; as 

sollows' 

"The district clerk of any county 
Hon. Geo. H. Sheppard, page 2 (V-513) 

shall receive fifty cents fez recording 

each account of the sheriff. 

Honorable W. B. Cl&St, District Clerk of the 

90th District Court, Stephens County, claims that he Is 

entitled to a fifty-cent (509?) See from the State of 

Texas for recording each sheriff’s return from any county in the State. He claims that recording of a sheriff’s 

return is in fact the recording of the sheriff’s account 

as provided under Article 1026. 

Therefore, the question for our dete{mlnation 

is what constitutes an “account of the sheriff within 

the meaning of Article 1026, V, C. C. P. Stated another 

way, Is a sheriff’s return an account of the sheriff? 

We believe that the answer is found in Articles 1030, 

1033 and 1034, V. C. C. P., providing for fees due a 

sheriff. 

Article 1030, V. C. C. P., provides: 

“In each county where there have been 

cast at the preceding presidential election 

less than 3000 votes, the sheriff or constable shall receive the following fees when 

the charge is a felony: . . . 

“2. For summoning or attaching each 

witness, fifty cents provided that in counties that have a population of less than 

forty thousand inhabitants, as shown by the 

preceding Federal census, the following fees 

shall apply: For summoning or attaching 

each witness, fifty cents, and where a bond 

Is required of said witness,,,for the approval of aaid bond, one dollar. 

Article 1033, V. C. C. P., provides: 

“Before the close of each term of the 

district court, the district or county attorney, sheriff and clerk of said court 

shall each make out a bill of the costs 

claimed to be due them by the State, respectively, In the felony cases tried at 

that term; the bill shall show: . . . 

“6. Where each defendant was arrested, or witness served, stating the county 
Hon. Geo. H. Sheppard, page 3 (V-513) 

in which the service wasmade, giving dlstanoe and direction from county seat or 

county In which the process is served. 

Article 1034, V. C. C. P., provides: 

“The district judge,’ when any such 

bill is presented to him, shall examine 

the same carefully, and,inquire Into the 

correctness thereofi and approve the same, 

In whole or In part, or disapprove the entire bill, as the facts and law may require; and s,uch approval shall be conditioned only upon, and subject to the approval of the State Comptroller as provided for in Article 1035 of this Code, and 

the Judge’s approval shall so state therein; and such bill, with the action of the 

Judge thereon, shall be entered on the 

minutes of said Court; and immediately 

on the rising of said Court, the Clerk 

thereof shall make a certified copy from 

the minutes of said Court of said bill, 

and the action of the Judge thereon, and 

send same by registered letter to the 

Comptroller. Provided the bill herein referred to shall before being presented to 

such District Judge, be first pres~ented 

to the County Auditor, if such there be, 

who shall carefully examine and check the 

same, and shall make whatever recomtnendaMona he shall think proper to be made to 

such District Judge relating to any item 

or the whole bill. 

“Fees due District Clerks for recoralng sheriff’s accounts shall be paid at 

the end of said term; and all fees due 

District Clerks for maklna transcripts on 

change of venue and on appeal shall-be 

paid as soon as the service la performed; 

and the Clerks’ bill f,or such fees shall 

not be required to show that the case has 

been finally disposed of. Sills for fees 

for such transcripts shall be approved by 

the District Judge as above provided, and 

with the same conditions, and when approved 

shall be recorded as part of the mlnutesv 

of the last preceding term of the Court. 

(Einphasis ours) 
Hon. Geo. H. Sheppard, page 4 (V-513) 

It is noted that Article 1033 requires the 

sheriff to make out a bill of costs claimed to be due 

him by thti State. Article 1034 provides for the approval of the district judge of the bill of costs and its 

recording by the district clerk. Article 1034 further 

provides that fees due district clerks for recording 

sheriff’s accounts shall be paid at the end of the term. 

In view of the above quoted statutes, It is our opinion 

that an account of the sheriff mentioned in Article 1026, 

v. c. c. P., is an account of fees due him by the State, 

or a bill of costs OS fees due him by the State. This 

Is consistent with the definition given this term by the 

office of the Attorney General In 1911 (Opinion of March 

16, 1911, to Hon. W. P. Lane, Comptroller, by John W. 

Brady.) That opinion reads: 

“The question to be decided is: Vhst 

is meant b$ ‘each sheriff’s account.’ The 

word ‘account’ has various meanings and 

shades of meanings; but we think the same 

was employed in these statutes to mean a 

statement of computation of the items comprising the sheriff’s claim for services. . .” 

Hence a sheriff’s return does not constitute 

“ti account of the sheriff” wlthln the meaning of Artlcle 1026. 

We are supported in this conclusion by virtue 

of the provisions of Article 3912e-1, Section 1, V. C. S., 

which prohibita the State from paying any county officer 

in any county having a population of twenty thousand 

(20,000) Inhabitants or more, any fee or commlssion. The 

sheriff of & county having a population of 20,OOO~or 

more, therefore, has no fees due him by the State. 

Since the sheriff of a salary cbunty is entitled to no fee from the State for making the return, he 

would have no “actiount” to render for the payment thereof. Hence there would be no “sheriff’s account” to be 

recorded by the clerk for which he could be entitled to 

any fee. While the clerk inakes an entry noting the retwn of citation, he Is nowhere authorized by statute to 

collect a fee for such entry. 

Since the sheriff’s return does not constitute 

‘an account of the sheriff” within the mating of Article 1026, V. C. C. P., and since the sheriff of a COWIty having a population of 20,000 or more, does not have 

an account of fees due him by the State, it is our opin- 
Eon. Geo. H. Sheppard, page 5 (V-513) 

ion that the district clerk, under the facts submitted, 

is not entitled to any fee for recording a sheriff's return. We know of no statute which would authorize the 

payment of such a See. In the absence of any expressed 

provisions authorizing the payment of fees or commlsslon8, 

no fee can be allowed, since statutes preacrlblq fees 

for public officers are strict.1 construed. McCalla v. 

City of Rockdale, (Corn. App.) 2 % 6 9. W. 654. 

SUMMARY, . 

The district clerk on a fee basis In 

a county containing less than twenty thousand inhabitants Is not entitled to any fee 

for recording the sheriff's return from a 

county containing a population of 20,000 or 

7ore;where the subpoena was issued by the 

fee county. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

JR:mw 

APPROVED: