OFFICE OF 

## HE AT 

# GpNERAL

AUSTIN, TEXAS

PRICE DANIEL **TORNEYGERERAL 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 somedoubt 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 Iovert county where the subpoena has been Issued by the clerk of the 'under' county directed to the sheriff OSthe lover'~:county and the sheriff of the 'over' county has duly executed sameand 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 amenclosing 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 countyHon. 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. Heclaims 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? Webelieve 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 summoningor attaching each witness, fifty cents provided that in counties that have a population of less than forty thousand inhabitants, as shownby the preceding Federal census, the following fees shall apply: For summoningor attaching each witness, fifty cents, andwhere 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 makeout a bill of the costs claimed to be due themby the State, respectively, In the felony cases tried at that term; the bill shall show:

. . .

“6. Whereeach defendant was arrested, or witness served, stating the countyHon. 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,’ whenany such bill is presented to him, shall examine the samecarefully, and,inquire Into the correctness thereofi and approve the same, In whole orIn part, or disapprove the entire bill, as the facts and law mayrequire; and s,uchapproval 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 makea certified copy from the minutes of said Court of said bill, and the action of the Judge thereon, and send sameby 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, whoshall carefully examine and check the same, and shall makewhatever 

### recomtnendaMona he shall think proper to be madeto 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 

### servicela performed; and the Clerks’ bill f,or such fees shall not be required to showthat 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 sameconditions, andwhenapproved 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 makeout a bill of costs claimed to be due himby 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 himby the State, or a bill of costs OSfees due himby 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 meantb$ ‘each sheriff ’s account.’ The word ‘account’ has various meanings and shades of meanings; but wethink the same was employed in these statutes to meana 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. Weare 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 himby 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 inakesan 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 himby the State, it is our opin-Eon. Geo.H. Sheppard,page 5 (V-513)

ion that thedistrictclerk,under the facts submitted, isnot entitledtoany fee forrecording a sheriff'sreturn. We know ofno statutewhichwould authorize the payment of sucha See. In theabsence ofany expressed provisionsauthorizingthepayment of fees or commlsslon8, no fee canbe allowed, since statutespreacrlblq fees forpublic officersare strict.1construed. McCallav. City ofRockdale, (Corn. App.) 2 6 9. W. 654.

% SUMMARY,

. Thedistrict clerkona feebasis In a countycontainingless than twentythousand inhabitantsIsnot entitledto any fee forrecording the sheriff'sreturn froma countycontainingapopulationof 20,000or 7ore;wherethe subpoenawas issuedby the fee county.
Yours very truly,
ATTORNEYGENERAL OFTEXAS

JR:mw

APPROVED: