                                 The Attorney          General of Texas
                                                  March 18, 1982
MARK WHITE
Attorney General


                               Mr. Maurice S. Pipkin                   Opinion No. MW-456
Supreme Court Building         Executive Director
P. 0. Box 12546
                               state Comdssion on                      Re:   Collection and retention
Austin. TX. 76711. 2546
5121475.2501                      Judicial Conduct                     of notary fees by employees of
Telex 9101674-1367             P.O. Box 12265                          a justice of the peace
Telecopiet   51214750266       Austin, Texas 78711

                               Dear Mr. Pipkin:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742.6944                        You have requested our opinion regarding the question of whether
                               a justice of the peace or his employees may collect and retain a fee
                               of fifty cents ($.50) for administering the oath, and affixing the
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
                               certificate and seal on sworn pleadings filed by a plaintiff in
91515333464                    justice of the peace court in addition to the $7.00 fee authorized by
                               article 3935, V.T.C.S. You have also requested our opinion regarding
                               the question of whether an employee of a justice of the peace may
1220 Dallas Ave., Suite 202
                               collect and retain a fee for administering the oath and affixing the
Houslo”, TX. 770626966
713i6500666
                               certificate and seal on a personal bond for a defendant charged with a
                               class "C" misdemeanor, which personal bond has been authorized in the
                               justice court in which such employee is employed and in which such
606 Broadway. Suite 312        class "C" misdemeanor is pending.
Lubbock. TX. 79401.3479
606/747-5236
                                    With regard to the first question, article 3935, V.T.C.S., states
                               that justices of the peace are required to collect the following fees
4309 N. Tenth. Suite 6         for services rendered by them:
McAllen, TX. 76501.1685
5121662.4547                                 A.    Fee before entry of judgment:

200 Main Plaza, Suite 400                     For   each   original    cause   or   action,
San Antonio, TX. 76205.2797              cross-action, third-party action or intervention
5121225.4191                             in the   justice civil courts:     for filing, or
                                         filing and registering, or filing and recording,
An Equal Opportunity1
                                         and for docketing and including taxing costs for
Affirmative Action Employer              each and all applications, complaints, petitions,
                                         returns, documents, papers, legal instruments,
                                         records or proceedings; for issuing, including the
                                         recording of the return thereon, each and all
                                         citations, notices, subpoenas, commissions to take
                                         depositions, orders, writs, processes, or any and
                                         all other instruments, documents or papers
                                         authorized, permitted or required to be issued by




                                                        p.   1584
Mr. Maurice S. Pipkin - Page 2   (MW-456)




         the justices of the peace on which a return must
         be recorded; for causing juries to be summoned and
         swearing them, and receiving and recording jury
         verdicts; for swearing witnesses; for approving
         bonds involved in court actions; for administering
         oaths; for rendering and recording judgment; and
         for all other clerical duties in connection with
         such justice of the peace court docket: a fee
         of..... $7.00.

     Article 3935 includes "administering oaths" as one of several
services for which a total fee of $7.00 shall be charged by a justice
of the peace. We note that article 3945, V.T.C.S.. provides for a
$.50 fee to be charged by a notary public for administering an oath
with certificate and seal. We do not believe this statute applies to
a justice of the peace administering an oath with certificate. A
justice of the peace has these powers pursuant to article 26,
V.T.C.S., because he is a justice of the peace. He is not, however,
for that reason a notary public subject to article 3945. Although a
justice of the peace must be commissioned as an ex officio.notary
public of his county, when he acts pursuant to article 3935 he acts as
a judicial officer and not as a notary public. Therefore, neither a
justice of the peace nor an employee acting for him may charge the
additional $.50 fee pursuant to article 3945, V.T.C.S.

     As to the second question, chapter 17 of the Code of Criminal
Procedure sets out the court's authority to release a defendant on his
personal bond and the requisites for same. Chapter 17 does not
authorize the collection of any fees by the court with regard to a
defendant's release on his personal bond. The fee of $7.00 which
article 3935, V.T.C.S., authorizes for the filing of a complaint and
other instruments in a justice court is inapplicable to civil cases.
Attorney General Opinion MW-249 (1980) states that article 3935 is
limited to civil cases.

     We are aware of no other statute which would permit a fee to be
charged and collected by an employee of a justice of the peace for
administering the oath and affixing the certificate and seal on a
personal bond. It is therefore our opi~nion that an employee of a
justice of the peace is not authorized to collect and retain a fee for
administering the oath and affixing the certificate and seal on a
personal bond for a defendant charged with a class "C" misdemeanor.
which personal bond has been authorized in the justice court in which
such employee is employed and in which such class "C" misdemeanor is
pending. See Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946) (public
officials not entitled to extra compensation for services within scope
of official duties).




                             p. 1585
Mr. Maurice S. Pipkin - Page 3   (MW-456)




                              SUMMARY

              Neither a justice of the peace nor his
         employee may collect a notary fee of $.50 for
         administering an oath with certificate and seal on
         sworn pleading filed in justice court pursuant to
         article 3945, V.T.C.S. An employee of a justice
         of the peace may not collect a fee for
         administering an oath and placing the certificate
         and seal on a personal bond for a defendant
         charged with a class "C" misdemeanor.




                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood




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