                HE   Ano
                           OFTEXAS




    lion.Andrew P. Johnson           Opition Eo. V-1124.
    County Attorney
    Dlmmit County                    Rea Legality of taxing
    Car~izo Springs, Texas               the trial fee as costs
                                         in county court when a
                                         civil action is dis-
    Dear Sir:                            mlssed vith prejudice.
              We refer to youprecent request which reads in
    part as follows:
             "I have received yam letter of jtugust
        30th enclosing copies of two opinions con-
        cerning the propriety of taxing the trial
c
        fee in the County Court when a civil action
        is dismissed with prejudice upon an agreed
        settlement. These opinions have been very
        helpful to me.
             "We have one case, however, that is not
        directly disposed of by these opltions. . . .
        In tMs case the original petition was filed
        and citation issued. The return on the cfta-
        tlon shows that Itwas served on March 9, 1950,
        and it was filed on mlarch10, 1950. Ho answer
        was filed, but on J.uue5, 1950, the court en-
        tered an order of dismissal, ' with full pre-.
        judice as against plaintiff,' and 'with full
        prejudice.* A certified copy of this order
        is enclosed herewith.
             '1 would appreciate it very much if you
        would advise me, by opinion OP otherwise,
        whether OP not the trial fee should be taxed
        as a cost in tbia case."
                The judgment referred to is as follows:
              "This the 5 day of June, 1950, the de-
         fendants having not as yet answered, came the
                                              .,

    1. Att'y Gen. Ops. O-1144 (1939) and O-4532 (1942).
Hon. Andrew P. Johnson,,page 2    (V-1124)


     plaintiff by his attorneys, and in open
     court.announcedto the court that all mat-
     ters in controversyhad been settled and
     disposed of by agreement of the parties,
     and plaintiff'sattorney requested the
     court to enter an order of dismissal with
     full prejudice, and the court being of the
     opinion that such order should therefore
     be ,entered;
          "It is therefore considered,adjudged
     and ordered by the court that this cause
     be, and it is hereby dismissed with full
     prejudice as against plaintiff; and it ap-
     pearing to the court that all costs have
     been paid therefore let no execution ls-
     sue."
            Article 3926, V.C.S., provides in part;
          #The county judge shall also receive
     the following fees:
          +l
           . . .
          ‘2.  . . . For each civil cause finally
     disposed of b him by trial or otherwise,
     Five Dollars s$5), to be taxed against the
     pkrty cast in the suit; . . ."
            The rule is stated in Corpus Juris Secundum
(Vol. 50,   p. 61-62):
          'A voluntary discontinuanceof a cause
     by plaintiff, OP the dismissal of the action
     on his motion, does not as a rule amount to
     a judgment on the merits and thereforewill
     not bar a new action on the same subject mat-
     ter, especially if expressed to be without
     prejudice; . . .
          "A different situation exists, however,
     where it affirmativelyappears that plaln-
     tiff Intended to abandon the action, in which
     case it Is treated as a retraxit.~So plain-
     tiff's dismissal of a suit with prejudice is
     as conclusive of the rights of the parties
     as an adverse judgment after trial, being res        -.
     judicata of all questions which might have
     been litigated in the suit; and an entry on
Hon. Andrew P. Johnson, page 3     (V-1124)


        the record that the debt has been paid and
        the suit ended Is 8 bap’to another action
        on the same debt." (Emphasisadded.)
Also in Cass County v. Rambo, 131 S.W.2d 214, 216 (Tex.
Civ.App. 1939, affirmed STex.    476, 143 S.W.2d 916),
it is stated2
                ‘It appears to be settled that
    when a’jk&ent is based upon an agreement
    of the parties, It is as conclusive of all
    matters covered by the agreement as a judg-
    ment on the merits would be,' . . . 'that a
    judgment of dismissal entered by agreement
    of the parties In pursuance of a comprcrmise,
    OP settlement of the controversy,becomes a
    judgment on the merits and bars another ac-
    tion for the same cause.1n
          In view of the foregoing, it is our opinion
that the case has finally been disposed of and the trial
fee of five dollars should be taxed as costs under the
facts submitted.


         Where a oivil suit is dismissed with
     gtrejudtce
              in oounty court by agreement of
    the parties, it Is finally disposed of,
    and the trial fee of $5.00 should be taxed
    as costs. Art. 3926, V.C.S,; 50 C.J.S.




APPROVED%                            Yours very truly,
3. C. Dsvis, Jr.                       PRICE WIfIEL
County Affairs Mvlsion               Attorney Cieneral
Everett I3stckinson
Executive Assistant
Charles D, Mathews
Pimt Assistant
                                     BJ-@ii%h Assistant
BA:mw
