                       August 10, 1953

    Honorable Henry. Wacle         Opinion. No. S-63
    District Attorney
    ReCordB Building               Re: Fees in Small Claims Court
    Dallas, Texas
    Dear Mr. Wade:
                 You have requested an opinion on the construc-
    tion of HoUBe Bill ,495 of the 53rd Legislature       ‘(Small
    Claims Court ) , House Bill 495 of the 53rd Legislattire
:   was enacted as Chapter 309, Acts of the 53rd Legislature,
    1953, and is codified       as Article 246Oa; Vernon’s Civil
    Statutes.     Your specific    questions concerning Article
    2460a ‘,are: 88 follows :
                “1. Section 5 of H. B. 495 provldes,
         ‘upon the filfng     of ,sald,affidavit   and the
         pa$,m&t of a Two Dollar ,($2)
         (underecoring    o.iMa).the
         process in the same manner afj any other
         case in Justice Court.        Serqlce being by
         citation   eerved by an offlcer.of      the State
         duly authorized to serve other citatioda.’
                “a...‘DoeB   the Two Dollar (!$2) filing  fee
         constitute      feea of Offi@    with respect to
         the justice       courts only?
               “be Is the constable entitled   to his
         minimum,fee. off One Ddllar and Sixty-Five
         Cents ($1=65) in aerving~the citation     men-
         tioned above?      :
              “c, C&n costs In excess of $2 filing           fee
         be charge~d with respect to:
                  1,; Executions of judgments?
                  2, Abstracts .of judgments?
               “2. Are fees or costs of any kind or
         character authorized to be charged in the
         Small CZaims~Courts mother than the $2.00
Bon, Hemy Wa~de,page 2 (S-.8i?)

                       I,
      glllng fee?’    $f   so, please enumerate awh
      fee8 or costs,. .(The cost question la raIee,d
      particularly    in view of a portion of Section
     *13.of eald Blllc       IIn the event of appeal to
      the Countg Cmt,         &x& coets not heretofore
      paid. by tJs8 .&t&e       ahall accrue until judg-
      ment- is renzhtid & the County Court. * In
      addltibn,    the’ .!+ewL w ie silent with .reeQect
      to charge being m&e for coat, subh. a6 wit-
      neee subpoenaa, exeou&lonii and abstract off
      judgmente~.)          ..
            “3. Can attendance~ of a witness sub-’
     .pbena leaued by Small Claims Courts be en-
      forced without 8 tefider of $1.00 with such
      subpoena,?
            “4. Will mere doc~ket entry setting out
      the eseehtial  f%ndingge of the Court conatl-.
      tute a legal. judgment, or ahall e,uch judg-
      merit be in i%Pmal legal form?
             “5. Is a cou,rt i&sued ~cltation what ie
      referred   to a8 ‘Notice and -,Qrder to Appear'
      in Section, #6 o,f ea&d new law?”
          ! Article  2460a create8 new courts in this State,
QreaCPlbee   their jurledl.~tion  and venue,, and provide8
for certain feea.     Since the Small Claim8 Court 18 a new
court created by the Legislature     feea Qro,vided for other
c,ourte euch a8 the Justice Courts are not appllcabla      to
the @all    ClairnfK~Court.
           It 18 well eettled that unlee# a fee Is Qro-
vldeh-by law for an official     service required to be per-
formed and the amount of fee fixed by law none can be
lawfully charg+      f&Cal.l,a vs City of Rockdale, 112’Tex.
209, 246 S.W. 654 (~$jPF)~~~XiiG%~County v, Currlngton,
139 Texs 297, 162 S.W..2d -42);           Att’y Gen.. OQe, o-773
(19391,
 . ---.- O-46i36 (1942)w   Furthermore,   en’ officer may be
required by law to perform epeclflc      servloea for. which no
compenaatlon la provided.     Mccalla v, city of Rockdale,
supra .
             The emergency clause of Houae,Blll 495, 53rQ
Legielature,    atatee that because many cltleens are denied
justice becauee of the prerrent expeneea and delay oft
        Hone Henry wade, page 3 (s-83)


        of litlgatlon creates an emergency.  Therefore,  one of
        the main purposes In creatlng.the  Sma&l Claims Courts wan
        to reduce the cost of litigation.
                     In view of the foregoing and with the Leglala-
        ture’a.intent    In mind we answer your queetlone as follows:
                  1. (a) The $2.00 filing fee constitutes  a fee
        of office with respect to the Small Claims Court only
        (not the Justice Courte).                       ~.
                     (b) Since no fee ie provided for the lasuance
        of citations    in the Small Clalma Court a constable is
        not entitled    to any fee for service 0f;cltatlons.
                 (c) No costs In excess of the $2.00 filing        fee
        and the $3.00 jury fee may be charged.
                  2. Section 5:of Article 2460a provide8 for
        the payment of ~a $2.00 filing fee. Section 11 providea:
                   “If either party dealres a trial by
             jury he ahall, at least one (1) calendar day
             prior t6 the date upon,whlCh the hearing Is
             to be held, file~.~with the Small Claims CouPt
             a request for a trial by jury, depostlng with
             the judge, at the time such request is filed,
             a jury fee of Three Dollars ($3). Thereupon,
             a jury shall be had a8 In other civil   CaBes
             In the justice   courts.”

‘..                No fee or oo8t of any kind or character la
        authorized td be charged ln~the Small Claiti Court other
      ’ than the $2.00 filing  fee and the $3.00 jury fee.
                  3. Section   9 of Article   2460a pfiovldea:
                    “In every case before the, Small Claims
             Court, it shall be the duty of..the judge to
             develop all of the facts In the particular
              case.    In the exercise   of this duty, the judge
             ‘may propound any queatlon of any witness or
              party to the suit or upon hi8 own ‘motion may
              summon any party to appear a6 a Wtneas In
              the suit BE, In. the dlscretlan    of the judge,
             appears necessary to effect a correct       Qdg-
              ment and speedily    diepoae of such 0ase.
Hon. Henry Wade, page 4 (S-83)           ,: '



          Since no fee 16 provided for the Issuance of
a eubpoena by the Small Clalnia Court&he witness may be
subpoenaed without tender of any fee.’
           4. The docket   entry setting out the court’8
judgment xl11 constitute    a legal judgment in the S&all
C~lalma court.
           5. the ‘phrase “Notice and Order to Appear”
meane a court Issued citatlori   provided for in.Sectlon    5
of Article  246Oa.      !

                           sumlARY
            House Bl~ll 4% of the 53-d Legislature
     enacted ad Chapter 309, 53rd Legislature,
     1953, and codified     as Article '2460a, Vernon’e
     G3vil Statutes,    create Small Claims Courts
     and the only fee8 that may be charged for
     lltlgatlon   In such court are (1) $2.00 filing
     fee, and (2) a $3.00 jury fee Zf either party
     desire6 a trial by jury In euch court.
                                   Yours very truly,
APPROVED
       :-                          JOHNBEN SriEPPERP
                                   Attorney General
3; C. Davis, Jr..
County Affalre Dlviaion
Vlllla E’. .Gt)eeh&m::           ‘a#&
Reviewer                            k John Reeves
                                            Asalstant
Robert S. Trottl
First Aaelstant
John Ben Shepperd
Attorney General
JR:.am
