                                 November     20,   1948


Hon. Lester Ray,           Jr.                 Opinion     No. V-726.
County Auditor
Falls   County                                 Re: Fees of a County Clerk
Marlin,   Texas                                    in eminent domain pro-
                                                   ceedings.

Dear Sir:

              Your    request        on the    above     subject   matter   is
as follows:

               “As   the    county     auditor
                                             authorized    by
       law    for the County of Falls,        I would request
       advice from your office         concerning     the maxi-
       mum fees which a county clerk can collect                in
       condemnation    proceedings.        The opinion     of
       the County Attorney      office     is that the clerk
       entitled    to the same fee as that allowed by
       law for civil     cases,  but Fall,6 County Court
       is restrioted     in its jurisdiction         to allow
       only criminal     cases and it has no clvll           jurls-
       diction.”

              B. B. 239, Acts 1917, 35th Legislature,        page
243,   transferred   the civil  jurisdiction     of theRz;Ez;
Court of Falls     County to the District     Court.
Section    1 of the Act provides    that “The county court Af
Falls    County shall hereaster    have jurisdiction     of eml-
nent domain proceedings.

           Title    52 of the Revised Civil      Statutes  of Texas,
being Articles    3264 and 3271, provides      for the condemna-
tion of real estate     for public   use by the State,     County,
political   subdivision    of a county,  city,    or town, or by
the United States Government.
               Subdivisions          6 and 7, Artiale         3266,   V.C.S.,
provida:

            “6.  If either   party be dissatisfied
       with the decision,   such party may within
       ten days after   the same has been filed      with
       the county judge file    his objection    thereto
Hon. Lester     Hay, Jr.,   page    2     (V-726)



     in writing,    setting  forth   the grounds of
     his objection,     and thereupon    the adverse
     party shal.l be clt,-.d ,;~iid thi? cause shall
     be tried    and determined    as in other civil
     causes in the county court.

             “7.  If no objections    to the decision
      are filed   within ten days, the county judge
      shal.1 cause said decision     to be recorded   in
      the minutes of his court,      and shall make the
      same the judgment of the court and lssie        the
      necessary   process  to enforce   the same.

              Article   3267,   V.C.S.,     reads   as follows:

             “The costs     of the proceedings     before
      the conuniasloners       and in the court shall
      be determined      as follows,     to-wit:  If the
      commissioners      shall   award greater   damages
      than the plaintiff        offered   to pay before
      the proceedings       commenced, or if objections
      are filed     to the decision      In the county
      court under the provisions          of this title,
      and the judgment of the court Is for a
      greater    sum than the amount awarded by the
      commlssloners,      then the plaintiff      shall pay
      all costs;     but if the amount awarded by the
      coaualssloners     as damages or the judgment of
      the county court shall be for the same or
      less amount of damages than the amount offer-
      ed before     proceedings      were commenced, then
      the costanshall       be paid by the owner of the
      property.

              If no objection     to the decision      of the commls-
sloners    is filed    within ten days and the decision          is re-
corded in the minutes of the county court as provided                 in
Subdivision      7 of Article    3266, the county clerk’s        fee
would be one dollar        for ‘each final     judgment or decree.’
See Article      3930, V.C.S.     If objeotlon     is made and the
cause is tried       In county court as provided         in Subdivision
15 of Article     32&j, the fees of the county clerk would be
determined      by the provisions     of Article     3930, as in other
civil   causes in the county court.

            According    to the 1940 Federal   Census, Falls
County has a population      of 35,984 inhabitants     and Its
county officials     are compensated   on a salary basis.     Art-
icle XVI, Section     61, Texas Constitution.      Since Falls
,




    Hon.   Lester   Hay, Jr.,   page   3   (V-726)



    County Is on a 'salary       basis,”    the county clerk would
    not, however,    be entitled      to collect    any of the above
    mentioned fees from the State or County.              See Attorney
    Oeneral’s   Opinions  Nos. V-22 and V-655.           Therefore,     if
    the court costs    are assessed      against    the State or Coun-
    ty, the county clerk      is not entitled       to any fee.      If the
    court costs   are assessed      against    the property     owner, the
    clerk would be entitled       to the fees provided         In Article
    3930, V.C.S.,    as In other civil.       causes l.n,,county    court;
    Since Falls   County la on a 'salary          basis,    said fees must
    be deposited    In the officers'      salary fund.

                                SUMMARY

                  The County Clerk of Falls        County is
           entitled     to the same fees in an eminent
           domaln~ proceeding    as in other civil       causes
           in the county court.       Articles     3266, 3267,
           arlq 3930, V.C.S.,,   Since Falls      County is on
               salary basis      said fees cannot be col-
           Tected when the'court       costs   are assessed
           against     the State or County.      When the court
           costs    are assessed  against    the property     owner,
           the fees of the county clerk must be deposit-
           ed in the officers'      salary fund.

                                                Yours   very     truly,
                                           ATTORNEYOENERALOF TEXAS



    JR!mw:b:sl:mw
                                                     Assistant



                                           APPROVED:
