                                       August    31,   1987




Rouorable   W. C. Kirkendall                            Opinion    No. JR-779
District   Attorney
25th Judicial    District                               Re:    Whether a district     attor-
113 South River,     Suite 205                          ney is required       to reimburse
Seguin,   Texas    78155                                a county     clerk    for   services
                                                        rendered    pursuant      to a bond
                                                        forfeiture    proceeding

Dear Mr. Kirkendall:

      You ask whether a district      attorney's   office  is required    to pay a
fee to the county clerk to file       an abstract   of a final   judgment issued
against   a principal    or surety    in a bond forfeiture      proceeditig.    We
conclude   that the district   attorney    need not pay such a fee.

       A bond forfeiture       proceeding       is a criminal        action,     but after      the
entry of a judgment nisi           all further        proceedings       are governed by the
Rules of Civil       Procedure.       Code of Grim. Proc.           art.     22.10;     Tinker v.
g,         561 S.W.2d      200 (Tex.        Grim. App. 1978);          Blue v. State,           341
S.W.2d 917, 919 (Tex. Grim. App. 1960).                   Article     22.14 of the Code of
Criminal     Procedure    specifically       provides      that final      judgments       in bond
forfeiture      proceedings     "shall     be collected         by execution        as in civil
actions."       If a bond forfeiture          hearing     is concluded        ~with a judgment
in favor      of the state,       then the award can be secured,                    at least     in
part,    by the creation       of a lien against           real property        belonging     to a
judgment debtor.         To create     such a lien,        an abstract       of judgment must
be filed       in the county        clerk's     office      for   each county         where real
property     of the judgment debtor           is to be found.           V.T.C.S.      art.   5447.
5448.      Filing    the abstract       of judgment         creates     a lien      against     any
property     owned, or after-acquired,            by the j,udgment debtor.              A lien is
valid    for an initial      period     of ten years if the judgment on which it
is based does not become dormant.                Article      5499, V.T.C.S.        art. 5449.

     The county clerk   is authorized  by section   51.318                    of the Govern-
ment Code to charge   a fee for recording   abstracts    of                   judgment.   But




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Eonorable        W. C. Kirkendall         - Page 2        m-f-779)




                        1
article        3912e.       at section    one,     provides,    in part,     that

                 [nlo district         officer     shall    be paid by the State
                 of Texas zany ~fees or cmmissions~-for                  any service         -~
                 performed        by him;      nor    shall     the State      or any
                 county     pay to any county            officer      in any county
                 containing          a    population       of     twenty     thousand
                 (20,000)       inhabitants        or more . . . any          fee    or
                 commission        for   any service        by him performed        .as
                 such     officer      . . . 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.      . . .

V.T.C.S.        art.    3912e,   -01.

          In   Attorney      General     Opinion     w-628      (1959),    this     office   observed
that:

                     It is noted that the prohibitions            contained  in
                 Sections  1 and 3 of Article         3912e . . . concerning
                 the payment of fees or commissions          by the State do
                 not apply    to the payment of costs            . . . by the
                 State where the fees         earned ~constitute     a part of
                 the cost assessed     against      the State in a particu-
                 lar case.     Therefore,       such cost must be paid by
                 the State as provided        by law rather    than as a fee
                 to the individual     officer.       (Emphasis added.)

See also Attorney   General Opinions M-134 (1967);                         WW-658 (1959); WW-508
(1958);  O-807 (1939).     Compare Attorney  General                       Opinion M-168 (1967)
(filing  fees in criminal   cases need not be paid).

       The charge levied       by a county clerk        for recording    an abstract     of
judgment is not a “cost”             in the sense that word is used in article
3912e;     as such,    the district       attorney    need not pay it.       This office
has previously       concluded      that the fee charged       by a county      clerk  for
recording     an abstract     of judgment in a tax delinquency            suit is not a
part    of   the “costs”       attributable       to the litigation       on which     the
judgment is based.          Article     3912e thus excuses      the state    from paying
the statutory      fee.     See Attorney       General Opinion MW-308 (1981).          Cf.
Williams     v. Simon, 235S.W.           257 (Tex. Civ. App. - Austin          1921, writ



         1. Article  3912e.    V.T.C.S.,   has been repealed                          and replaced,
effective   September 1,    1987,  with  the Local Government                        Code. -See Acts
1987, 70th Leg., ch. 149, 951. 49.




                                                    P.   3668
Honorable   W. C. Kirkendall        - Page 3    (JM-779)




dism'd    w.o.j.)    (recording     a "muniment        of title"     has never    been
recognized     as generating    a "cost" taxable      to a party    on a suit).

                                      SUMM~ARY

                 The      county    clerk    is      authorized      by   the
             Government Code, section          51.318     to charge     a fee
             for    recording    an abstract       of a final      judgment.
             The clerk may not collect          the fee when-a district
             attorney      seeks  to file     an abstract       of a final
             judgment       from   a    bond    forfeiture      proceeding,
             article     3912e. section    1. V.T.C.S.




MARY KELLER
Executive Assistant      Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney          General

RICK GILPIN
Chairman, Opinion      Committee

Prepared    by Don Bustion
Assistant    Attorney General




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