Untitled Texas Attorney General Opinion ( 1987 )

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
p. 3667
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
P. 3669