THEA'ITORNEYGENERAI. OF TEXAS

Honorable Tom Blackwell CountyAttorney Travis County Austin, Texas

Dear Mr. Blackwell: OpinionNo. WW-1166
Re: Whether the sheriff'soffice is allowed a fee of $1.00 on each and everydefendant named in the petition and servedwith a citation under Sec. 5a, of Article 2460a, V.C.S., and related questions.

You have requestedan opinion on the following two questions:(1) "Under Sec. 5a, Article2460a of the Vernon's Civil Statutes of the State of Texas, is the office,by'the officer servingthe citation, allowed a fee of $1.00 on each and every party named In the petition and served. (2) "Under Sec. 5, Article246oa of the Vernon's Civil Statutes of the State of Texas, is the court in which the Small Claims suit filed limited to charge only $1.00 for the citation fee even thoughmore than one party is served In the same county or in different counties." With reference to these questions, Section 5a of Article246oa, Vernon's Civil Statutes,reads as follows:

"Sec. 5a. A fee of One Dollar ($1) shall be charged for the service of citation provided for in Section5 and shallbe accountableas a fee of officeby the officer serving citation." Section5 of Article2460a reads In part as follows: "Sec.5. . . . The Two Dollar ($2)filing fee, provided for in this Section, the Three Dollar ($3) jury fee provided for in Section 11 of this Act and the One Dollar ($1) citation fee provided for in Section 5a shall constituteHonorable Tom Blackwell,page 2 (NW-1166)

the only fees or costs authorized to be charged in the Small Claims Court;
. . ." Article 246oa createsnew courts in this state and prescribes their jurisdictionand venue, and in addition, the feeswhichmay be charged. Originally, Section 5 provided for only the Three Dollar ($3) jury fee and the Two Dollar ($2) filing fee. In 1955, Section 5a was added and Section 5 amended to include the One Dollar ($1)citation fee. Acts, 1955, 54th Leg.,p. 571, ch. 187, sec. 2. (SeeAttorney GeneraPs OpinionMS-80 (1953).)

In Attorney General'sC,inion s-83 (1953), a question arose‘cencerningthe jury fee and filing fee, then the only two fees authorizedby the statute. The opinionheld that the only fees authorizedby the statutewere the jury and filing fees, and no fee was authorized to be charged as a citation fee, and none couldbe charged.

Your attention is called to the present wording of the statute. It statesthat the only fees authorized are those listed,and in Section 5a states that a fee of One Dollar ($1) shallbe charged for service of citation. In Attorney -- General's Opinion s-83, supra, referencewas made to the case of McCalla v. City of Rockdale, 112 Tex. 209, ,246S.N. 654 (1922),which held that unless a fee is providedby law for an official service required to be performed and the amount of the fee fixed by la?] none can be lawfully char ed. (See also Nueces Countyv. Currington,139 Tex. 297, 1 2 S.U.2d g 687 (I-942).)F'LI

th an officermay be requiredby law to perform speci~ic"~~~%es forwhich no compensation is provided. MC Callav. City of Rockdale, supr~a.

i:eare of the opinion that your first question shouldbe answered negatively, and the second answered in the affirmative. AttorneyGeneral's Opinion s-83, supra,pointed out the reasoninghere, which in part reads:

"The emergency clause of House Eill 495, 53rd Legislature, states that becausemany citizens are denied justicebecause of the present expenses and delay of litigation creates an emergency. Therefore, one of themain purposes iincreating the Small Claims Courtswas to reduce the cost of litigation." If the Legislaturehad intended that the full citation fee would be allowed for every party served,we believe they would have spelled it out in the statute. However, they did not, but provided for only 'a fee of One Dollar.'Honorable Tom Blackwell,page 3 (WW-1166)
Consequently,you are informed that it is our opinion that under Sec. 5a of Article 2460a,V.C.S., the office and officer serving the citation are allowed only a_ sin le One Dollar ($1)fee, & regardless of the number of es named In the petition and served. Further,under Sec. 5 of Article 246oa,V.C.S., the Small Claims Court Is authorized to charge only One Dollar ($1) for the citation fee, regardless of the number or location of the parties served.

SUMMARY

Under Sections 5 and 5a of Article 246Oa, V.C.S., only a single One Dollar ($1) citation fee may be charged, regardless of the number and location of the parties served. Very truly yours, WILL WILSON AttorneyGeneral of Texas

EBS:dhs

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Winston Crowder Pat Bailey Elmer McVey Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.