                 EA                Y      GENERAL




                       January 14, 1964

Honorable Henry Wade                   Opinion No. C-205
District Attorney
Dallas County                       He:     Payment for service
Dallas, Texas                               of citation.
Dear Mr. Wade:
      Your request for an opinion on the above subject matter
presents the following facts submitted to you by Honorable
Bill Decker, Sheriff of Dallas County:
            "In due course of business, we re-
      ceived from the Attorney General of Texas,
      a request that we serve citations on the
      C. T. Corporation System, the registered
      agent for service of Western Gas Servicing
      Company and El Paso Natural Gas Company.
            "These parties are defendants in
      Cause No. 109,082, then pending in the
      120th District Court at El Paso County.
      The petition was styled 'State of Texas
      vs. El Paso Electric Company et al' and
      was filed under the escheat statutes (Art.
      3272a V.A.C.S.).
            "After my office served the citation
      and made return thereof, we submitted our
      bill for service of such process to the At-
      torney General's office for payment on the
      approved voucher forms.
            "It has been called to my attention
      that the voucher was processed and approved
      by the Attorney General's office and the State
      Treasurer's office and that for some reason
      the Comptroller has refused to approve same
      for payment.
            "It !.srequested that you furnish me
      an opinion as to the legality of my claim for
      compensation, or In any other words what can
      I do to get paid."

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Hon. Henry Wade, page 2 (C-205)


      Section 1 of Article 3912e, Vernon's Civil Statutes,
provides:

           "No district officer shall be paid by
     the State of Texas any fees or commissions
     for any service performed by him; nor shall
     the State or any county pay to any county of-
     ficer 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 provided for, all fees
     and commissions which he Is authorized under
     law to collect; and it shall be his duty to
     account for and to pay all such monegs receiv-
     ed 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 required under the provisions
     of this Act, to account for fees, commissions
     and costs collected from private parties;
     provided further, that the provisions of this
     Section shall not affect the payment of fees
     and commissions by the State or County for
     services rendered by County Officers in con-
     nection with the acquisition of rights of way
     for public roads or highways, and provided that
     such fees and commissions shall be deposited in-
     to the Officers' Salary Fund of the County by
     the County Officer collecting such fee."
      Article 3933, Vernon's Civil Statutes, provides in part
the following fees:
            "Sheriffs and Constables shall receive the follow-
            ing fees:
            "Serving each original citation In a civil suit     $1.25"
      Rule 17 of the Texas Rules of Civil Procedure provides:


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    Hon. Henry.Wade, page 3 (C-205)


                  "Except where otherwise expressly pro-
            vided by law or these rules, the officer
            receiving any process to be executed shall
            not be entitled in any case to demand his
            fee for executing the same in advance of
            such execution, but his fee shall be taxed
            and collected as other costs in the case."
            Rule 126   of the Texas Rules of Civil Procedure provides:
                  "No sheriff or constable shall be
            compelled to execute any process in civil
            cases coming from any county other than the
            one in which he Is an officer, unless the
            fees allowed him by law for the service of
            such process shall be paid in advance; except
            when affidavit is filed, as provided by law
            or these tiles. The clerk Issuing the process
            shall indorse thereon the words, 'pauper oath
            filed,' and sign his name officially below them
            and the officer in whose hands such process is
            placed for service shall serve the same."
          Under the facts submitted, the Sheriff served a clta-
    tion   on
            a defendant In a case pending in El Paso County. As
    such, fees for such services constitute a part of the court
    costs in a civil case, within the meaning of Section 1 of
    Article 3912e, Vernon's Civil Statutes, above quoted. There-
    fore, such costs must be paid by the State as provided by law.
    Attorney General's Opinion WW-628 (19%) and V-1002 (1950).
          Subdivision (j) of Section 19 of Article 3912e, Vernon's
    Civil Statutes, applicable to counties having a population in
    excess of 190,000 Inhabitants, provides as follows:
                  "Each district, county, and.preci.nct
            officer who shall be compensated on a salary
            basis shall continue to charge for the bene-
            fit of the Officers' Salary Fund of his of-
            fice provided for in this Section, all fees
            and commissions which he Is now or hereafter
            may be authorized to charge against and col-
            lect from the State of Texas for services
            performed by him in civil proceedings and to
            file claims for the fees or commissions due
            for such services in the manner now or here-
            after provided by law; and It shall be the
            duty of said officer to account for and
            cause to be paid to the salary fund created

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Hon. Henry Wade, page 4 (C-205)


      for such officer all such commissions and
      fees when paid by the State in like manner
      as for costs collected from private parties;
      provided further, that such warrants issued
      by the State Comptroller of Public Accounts
      shall be made payable jointly to the officer
      in office at the date of payment and to the
      county treasurer, and that upon endorsement
      thereof such warrants shall ba deposited
      forthwith by said county treasurer in the
      salary fund created for such officer."
      In construing the above quoted provisions, it was held
in Attorney General's Opinion W-628:
            "Subdivision (j) of Section 19 above
      quoted, specifically provides how costs in
      civil cases are to be paid by the State. The
      Comptroller Is specifically directed to make
      warrants payable to the officer in office   at
      the date of'the:payment and to the County
      Treasurer. Therefore, you are advised that
      in counties of 190,000 inhabitants or more,
      fees or commissions earned by officers In
      civil proceedings in which the State is a
      party, assessed as costs, should be paid
      jointly to the Clerk and to the County Treas-
      urer in payment of the cost bill, unless the
      final judgment directs otherwise. In other
      counties the warrant should be made payable
      to the Clerk or as directed by the final judgment.
       The above holding in Attorney General's Opinion W-628
has no application to payment for services rendered In the
instant case for the reason that service of citation was per-
formed by the sheriff in a county other than the county in
which the civil case was pending. Under the provisions of
Rule 126 of the Texas Rules of Civil Procedure, no sheriff
or constable shall be compelled to execute any process in
civil cases coming from any county other than the one in which
he is an officer, unless the fees allowed him by law shall be
paid in advance. Since Rule 126 of the Texas Rules of Civil
Procedure specifically provides for the payment of such fees
In advance, the Comptroller of Public Accounts IS not required
to make such warrants payable jointly to the officer In office
at the date of pa ent and to the county treasurer as provided
in subdivision (jr of Section 19 of Article 3912e, Vernon's
Civil Statutes, but Is required under the provisions of Rule
126 of the Texas Rules of Civil Procedure to issue the warrant


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Hon. Henry Wade, Page 5 (C-205)


payable to the sheriff.
        In Attorney General's Opinion V-1002, it was held:
              "By reason of the foregoing and partlcu-
        larly the clear Import of Rule 126, I$ Is the
        opinion of this office that a sheriff or con-
        stable may require fees in advance or the exe-
        cution of a pauper's oath for the service of
        process coming from any county other than the
        one In which he Is an officer."
      It Is our opinion that Attorney General's Opinion V-1002
is applicable to the facts presented in your request. You are
therefore advised that the claim of Honorable Bill Decker,
Sheriff of Dallas County, against the State of Texas Is due and
payable.
                             SUMMARY
              Where the sheriff executes process in a
        civil case (which he is authorized to charge
        against the State) coming from any county other
        than the one in which he Is an officer, fees
        allowed by law for such service are payable by
        the State to the sheriff performing such service.
        Under Rule 126 of the Texas Rules of Civil Pro-
        cedure, such fees should be paid by the Comptrol-
        ler of Public Accounts by issuing a warrant made
        payable to the sheriff executing such service of
        process.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General


                               BY   ‘;lohn   Re;v;‘;

JR:ms                               Assistant




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Hon. Henry Wade, page 6 (C-205)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Joe R. Long
Wayne Rodgers
Brady Coleman
Ivan Williams
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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