Untitled Texas Attorney General Opinion ( 1953 )

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