                 THEATTOJRNEYGE~~RAI..
                                    OF-XAS
                              AUSTIN.           TEXAS           78711


                               October 17, 1963

Honorable Henry Wade                                            Opinion No. C-164
Criminal District Attorney
Dallas County                                                   Re:       Proper items of court
Dallas, Texas                                                             costs and costs in
                                                                          condemnation proceed-
Dear Mr.       Wade:                                                      ings.
        We have your letter in which you request an opinion
pertaining to proper items of court costs and costs in condem-
nation proceedings.
        You enclose a copy of a Bill of Cost in a condemnation
suit containing fees for the County ClerkA Sheriff, and County
Judge, which items you have marked "A - L inclusive and are
as follows:
           A - Taxing        cost       -   -   _ _ _ _ _ -               _ _ _ _          .50

           B - Filing and Docketing - - - - - - - -                                       1.00
           .C - Recording Notice of Lis Pendens                                   - -     2.00
           D - Filing four notices                      - - - - - - - -                   1.00
           E - Filing one notice                    - - - - - - - - -                      .25
           F - Filing intervention of County                                  - - -        .25
           G - Award of Special Commissioners - - -                                        .25
           Ii - Order to withdraw funds                          - - - - - -              1.25
           1    _ Judgment      -   -   -   _   -   _   _   -    _    -   -   _   _   _   8.00


           The above items A - I are for the County Clerk.
           J - Sheriff fees for serving notices - - 16.00
           K-CountyJudgefee----------                                                     3.00
           L - County Law Library fund                           - - - - - -              1.50
Honorable Henry Wade, Page 2 (Opinion No. c-164   )


        You submit the following questions:
              "1. Which of the items listed are pro-
           per Court costs?
              "2. Which of the items listed are costs
           of the proceeding?
              “3.  If any of the   items listed are held
           to be not included in   either (1) or (2) above,
           can the office holder   performing the service
           be legally reimbursed   for the work done as
           services rendered?"
        You state that in view of our Opinion No, ~~-1008 dated
March 7, 1961, it appears to you that Items 0, I& and 1. are
proper court costs; that under Articles 6640 and 6641, V.A.C.S.,
Item 2 appears to be a proper item of cost; that under Article
3912e, it appears that Items &B,   g, E, 5, and & are costs of
the proceeding; and that Item L appears to be neither a cost of
a proceeding nor a court cost.-.You do not express an opinion
as to Item z.
        It appears to us that our Opinion No. ~~-1008 answers
all the questions propounded by you and we shall briefly review
that opinion, the pertinent parts of which are substantially
as follows:
        1. The Petition or Statement of Condemnation
           is filed with the County Judge who appoints
           the Commissioners. (Article 3264, Sec. 2).
           Neither the Judge, Clerk, nor Sheriff has
           anything whatever to do with the proceeding
           thereafter until the Commissioners file their
           award or decision with the Judge as provided
           by Article 3265(5).
        2. If no objections to the award are filed, then
           the only fees of office that any officer can
           collect are those by the Clerk who is entitled
           to three fees in the amount allowed by law for
           (1) filing the decision or award, (2) for re-
           cording the award, and (3) for recording the
           judgment which the County Judge has made by
           making the award the judgment of the court.
           These are the only fees of office that can
           be charged by any officer if no objections
           to the award are filed. If a Lis Pendens
           Notice is filed the Clerk will collect the
           fee provided by law, not as court costs nor
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Honorable Henry Wade, Page 3 (Opinion No. Cl64)


           as costs of the proceeding, but as a fee
           for filing and recording instruments.

        3. If the condemnor does not pay the damages
           directly to the condemnee, but pays same
           into court as provlded by Art. 3268(l),
           and the money is withdrawn by the condemnee,
           there is no fee to be collected by any offi-
           cer. The money is not withdrawn by an order
           of the court, but only by an order of the
           condemnee. There is no provision in law
           for paying the Clerk any compensation for
           this service.
        4. If objections to the award are filed, then
           the proceeding becomes a civil cause as
           provided by Art. 3266(6), and the officers
           are allowed to charge the regular fees
           allowed by law for services in a civil
           cause.  If the Clerk is required to issue
           citations, he is authorized to charge a
           fee allowed by law for such service,    IP
           the Sheriff or Constable is required to
           serve citations, he is authorized to col-
           lect the fees allowed by law for such
           service, This is the first time that the
           Sheriff has anything to do with the con-
           demnation proceeding, If objections are
           filed, the cause becomes a civil cause,
           and the Judge is allowed to collect the
           fee provided by law for each civil case.

                FIRST AND SECOND QUESTIONS
        We believe that the first two questions propounded by
you may better be answered by giving cmr opinion as to each
item mentioned by you as follows:
        Items A and B are proper court costs for the Cl~erk
only if objections to the award or decision are filed and Lhc
Clerk sets up the proceeding as a civil cause.  If no object;onF
to the award are filed, then such items are not a proper charge
in any case.
        Item C is not a proper item of court costs or costs of
the proceeding. The party filing a Lis Pendens Notice, even


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Honorable Henry Wade, Page 4 (Opinion No. C-164    )


if the State or County, under Art. 3219e, V.C.S., is now re-
quired to pay the recording and filing fee to the Clerk.
        Items D, E, and F are not proper items of court  costs
or costs of the proceeding. These are services to be performed
by the Commissioners who are paid for all services as provided
by Art. 3266(j), V.C.S. Item F is a proper Item of court    costs
if the intervention is filter      objections to the award are
filed.
        Item G is a proper item of costs in every case. In
addition~is,      the Clerk is, in every case, entitled to a
fee for recording the award if that is done. If the judgment
and award are combined in one instrument, then only one fee is
charged.
        Item H is not a proper item of court costs or costs of
the proceeding. The law does not make any provision for any
fee for such service even if the money is handled by the Clerk.
        Item I Is a proper Item of costs in every case, However,
we cannot say that the amount of $8.00 set out is a proper
amount. Art. 3930, V.C.S., sets the amount of the fee.
        Item J is not a proper item of court costs. It is a
proper item of costs of the proceeding. Under Art. 3264(6),
V.C.S.) the notices may be served by any person competent to
testify. If the Sheriff performs this service he should col-
lect his compensation through the proceeding and not through
the Clerk.
       Items K and L are proper items of court costs only if
objections to the award are filed and if the proceeding be-
comes a civil cause. If no objections are filed, the County
Judge does not receive any compensation whatever and no
library fee is charged.

                      THIRD QUESTION
        You quote Section 1 of Article 3912e, V.C.S., and
underline and emphasize the last clause or proviso of said
Article as follows:
              “Section 1. No district officer
           shall be paid by the State of Texas
           any fees or commissions for any ser-
           vice performed by him; nor shall the
           State or any county pay to any county

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Honorable Henry Wade, Page 5 (Opinion No. C-164   )


          officer in any county containing a
          population of twenty thousand (20,000)
          inhabitants or more according to the
          last preceding Federal Census any fee
          or commission for any service by him
          performed as such officer; provided,
          however, that the assessor and collector
          of taxes shall continue to collect and
          retain for the benefit of the Officers’
          Salary Fund or funds hereinafter pro-
          vided for, all fees and commissions
          which he Ls authorized under law to
          collect; and it shall be his duty to
          account for and to pay all such moneys
          received by him into the fund or funds
          created and provided for under the
          provisions of this Act; provided further,
          that the provisions of this Section shall
          not affect the payment of costs in civil
          cases or eminent domain proceedings by
          the State, but all such costs so paid
          shall be accounted for by the officers
          collecting the same, as they are re-
          quired under the provisions of this
          Act, to account for fees, commissions
          and costs collected from orivate oar-




        Prior to the amendment of 1959, Article 3912e prohibited
the payment of compensation to district and county officers for
any services performed by such offleers for the State or County
in condemnation proceedings (other than civil causes) or such
services as filing and recording instruments (such as Lis Pen-
dens) and furnishing certified copies of instruments.
        After quoting the above provision, you malcethe follow-
ing statement pertaining to it:


                            -8OO-
                                                            i    _.,




Honorable Henry Wade, Page 6 (Opinion No. C-164   )


              "It Is clear that Section 1, Article
           3912e, V.A.C.S., intends for County offi-
           cers to be reimbursed for all services
           rendered in connection with the acquisi-
           tion of rights of ways for public roads
           or highways. Therefore, if the above
           listed items are held to not be Court
           costs or costs of the proceeding, they
           are surely reimbursable as services
           rendered under the above statute."
        We do not agree with your Interpretation of Article
3912e as above quoted. We believe that It Is clear that the
amendment to Article 3912e was only to allow officers to
collect the fees allowed by law for any services in connection
with dondemnation suits which they were not allowed to collect
before the amendment, and that said amendment was not intended
to allow the officers to collect for a service that they are
not required to render, or any compensation for any service
they are required to render for which no compensation is pro-
vided by law. See the authorities cited in Opinion No. ~~-1008.
        The fact that an officer might for convenience do some
of the work required of the Judge or Commissioners appointed
by him does not authorize the payment of compensation not pro-
vided by law. In order to receive compensation, the service
rendered by the officer must be required of him and in addi-
tion thereto the law must provide for payment of same.
        We believe that this sufficiently answers your third
question.

                      SUMMARY
              This opinion pertains to the fees or
           compensation of officers for services in
           eminent domain proceedings.
                                Yours very truly,
                                WAGGONER CARR
                                Attorney General of Texas




HGC/JP
-    .




Honorable Henry Wade, Page 7 (Opinion No. C-164   )


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. C. Davis
MalcotlmQuick
William Osborne
Leslie King
REVIEWED FORTHE ATTORNEYGENERAL
By: Stanton Stone




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