                               @ffice of tfie Bttornep QSeneral
                                               &ate of Qexae



                                              May 22,199l


Mr. Arnold W. Oliver, P. E.                             Opinion No. DM-26
Engineer-Director
State Department of Highways and                        Re: Fees payable to county and district
   Public Transportation                                clerks in eminent domain cases and
Dewitt C. Greer Building                                when fees are payable by state agency
1lth & Braxos                                           @Q-M)
Austin Texas 78701-2483


Dear Mr. Oliver:

        You have requested our opinion as to when and in what amount fees are
payabie by the Department of Highways and Public Transportation to district and
county clerks in eminent domain, or condemnation, proceedings. See generaZIy
Attorney General Opinions MW-447, MW447A (1982) (state not exempt from
filing fees in civil cases in district court).

       Section 118.052 of the Local Government Code, establishes a fee schedule to
be charged by county clerks. That statute provides, in pertinent part:

               Each clerk of a county court shall collect the following fees
          for services rendered to any person:

          (1) CIVIL COURT ACTIONS
              (A) Filing of Original Action (Sec. 118.053):
                  (i) Garnishment after judgment ...........................$15.00
                  (ii) All others ...........................................................$40.00

       Since a condemnation proceeding is not a “[g]arnishment after judgment,” it
must perforce be included within the “[a]ll others” category listed above. In
Attorney General Opinion M-142 (1967) at 2, however, this office declared that “a
condemnation, in its initial stage, is not a cause, action, or suit in a Court, but is an
administrative proceeding.” The opinion relied for this proposition on the court’s




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Mr. Arnold W. Oliver, P. E. - Page 2          (DM-26)




language in Henderson v. Texz Turnpike AZ&, 308 S.W.2d 199 (Tex. Civ. App.--
Dallas 1957, writ refd), wherein the court said:

              It is our opinion that with the filing of objections by a
          dissatisfied party the condemnation proceedings are converted
          into a lawsuit as such for the Srst time. Up to that time the
          condemnation proceedings are only administrative proceedings
          in which the Judge acts as an administrative agent, not as the
          Judge of a court performing judicial duties in a pending lawsuit.

Id at 201; see also Lknton County v. Bmmmer, 361 S.W.2d 198, 200 (Tex. 1962).
Thus, according to Attorney General Opinion M-142 at 2. fees in such cases “are not
payable until an objection is filed by the condemnor or a judgment is entered.”

        In our view, this conclusion is correct. Thus, as to condemnation proceedings
filed in county court, the applicable fee is $40.00, but such fee is not payable until
either an objection is filed or a judgment is entered.

       Section 51.319 of the Government Code provides that:

          The district clerk shall collect the following fees for services
          performed by the clerk

              . . . .


          (5) for performing any other service prescribed or authorized by
          law for which no fee is set by law, a reasonable fee.

A 1974 opinion of this office, Attorney General Opinion H-453, construed article
3928, V.T.C.S.. the predecessor of this provision, to cover the proper fee which “a
district clerk is permitted to charge in an eminent domain proceeding.” The opinion
concluded:

          In view of the fact that the Legislature has set a fee of twenty
          five dollars to be charged by county clerks for services rendered




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Mr. Arnold W. Oliver, P. E. - Page 3                           (DM-26)




          in condemnation cases, in our opinion a similar fee would not be
          unreasonable if charged by district clerks in such cases.

The opinion did not address the question of whm a fee must be paid for
condemnation proceedings filed in district court. Section 51.317 of the Government
Code provides:

          (a) The district clerk shah collect at the time the suit or action
          is filed the fees provided by Subsection (b) of this section for
          services performed by the clerk

          (b) The fees are:

               (1) for filing a suit, including an appeal from an
          inferior court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .s35

As Henderson, supra, established, however, a condemnation proceeding is not
initially a suit. Thus, neither the fee schedule nor the time of payment provisions of
section 51.317 are relevant to the filing of such proceedings.

        In our opinion, the conclusion of Attorney General Opinion H-453 is correct:
a fee collected by a district clerk under section 51.319(S) may be deemed
“reasonable” if it is set no higher than the fee charged by a county clerk in similar
proceedings, which is, in this case, a maximum of forty dollars. As to the time of
collection, we believe that since section 51.319 is silent as to the time of collection, it
is most reasonable to presume that the legislature intended that any fee be paid at
the time the proceeding is initiated. Thus, as to condemnation proceedings filed in
district court, the maximum fee which may be charged to a condemnor is forty
dollars, and such fee is due at the time the condemnor initiates the proceedings in
district court.

                                              SUMMARY

                    A county clerk is authorized to assess a fee of $40
                for condemnation proceedings filed in county court, but
                such fee is not due until either an objection is filed to




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Mr. Arnold W. Oliver, P. E. - Page 4           (DM-26)




              the condemnation or a judgment is entered. A district
              clerk is authorized to assess a reasonable fee, not to
              exceed $40, in condemnation proceedings. Such fee is
              payable at the time the condemnor initiates the




                                               DAN      MORALES
                                               Attorney General of Texas

WJLL.PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEJNE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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