                                         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 ~coun-
                                                           ty for reoordlng
                                                           sheriff's  return on
                                                           process served In a
                                                           salary county.
          Dear Sir:
                    Your letter requesting an opinion from this De-
          partment on the above subject matter is, In part, as fol-
          lows:
                          'There is some doubt in this de-
                   TEarrnt aa to whether the clerk in an
                            * county on a fee basis Is entitled
                   to receive a fee of fift      (508) cents for
                   recording    the Sheriff's  Return from an
                    Iover t county where the subpoena has been
                   Issued by the clerk of the 'under' county
                   directed    to the sheriff  OS the lover'~:coun-
                   ty and the sheriff     of the 'over'  county
                   has duly executed same and returned said
                   subpoena to the clerk of the 'under' ooun-
                   tY*
                        "I shall thank you to advise this de-
                   partment 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 coun-
ty 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 con-
     stable shall receive the following  fees when
     the charge is a felony:  . . .
           “2.  For summoning or attaching each
     witness, fifty  cents provided that in coun-
     ties 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 approv-
     al 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 at-
     torney, sheriff    and clerk of said court
     shall each make out a bill of the costs
     claimed to be due them by the State, res-
     pectively,    In the felony cases tried at
     that term; the bill     shall show: . . .
            “6.   Where each defendant       was arrest-
     ed,   or witness served, stating        the county
Hon. Geo. H. Sheppard,   page 3    (V-513)


     in which the service wasmade, giving dls-
     tanoe 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 en-
     tire bill,   as the facts and law may re-
     quire; and s,uch approval shall be condi-
     tioned only upon, and subject to the ap-
     proval of the State Comptroller as provid-
     ed for in Article     1035 of this Code, and
     the Judge’s approval shall so state there-
     in; 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 re-
     ferred 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 recomtnenda-
     Mona he shall think proper to be made to
     such District    Judge relating     to any item
     or the whole bill.
            “Fees due District    Clerks for recora-
     lng 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 appro-
val 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 com-
      prising the sheriff’s   claim for services.  . .”
           Hence a sheriff’s     return   does not constitute
“ti account of the sheriff”      wlthln   the meaning of Artl-
cle 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 entit-
led to no fee from the State for making the return, he
would have no “actiount” to render for the payment there-
of.    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 re-
twn 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 Arti-
cle 1026, V. C. C. P., and since the sheriff    of a COWI-
ty 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 re-
turn. 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 thou-
        sand 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



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