Untitled Texas Attorney General Opinion ( 1961 )

EATTORNEYGENERAL
OFTEXAS
Ausnnr 11,TExAS
March 7, 1961
Mr. D. C. Greer Cpinion No. WW-1008
State Highway Engineer
Texas Highway Department Re: Proper Items of Court Costs
Austin 14, Texas for Officers in Condemnation
Suits
Dear Mr. Greer:
We-have your letter in which you ask for an opinion
as to proper items of court costs to be charged in con-
demnation suits. You state that you have had no diffi-
culty in the proper payment of costs incurred in hearings
before the special commissioners, but find a difference
of opinion in some counties as to the proper items to be
paid to officers as court costs and ask to be advised of
the proper items of cost in each of the following instances:
1. Where objections are filed to the decision of the
special commissioners.
2. Where the decision of the special commissioners
is filed with the judge but no objections are filed thereto
within the time prescribed by law.
In answering the above questions, we should first
notice the nature and particular procedure to be followed
in condemnation suits. UnderArticle 3264 V.C.S. we find
the following procedure for hearings before the special
commissioners.
The statement (or petition) is filed with the county
judge?.
2. The county judge appoints the special commissioners.
3. An oath is taken by the commissioners.
4. The commissioners set the time and place for hearing.
5. The commissioners issue notices to the interested
parties.
6. The notices may be served by any person competent
to testify.
Mr. D. C. Greer, page 2 (WW-1008)
7. The notices are returned to the commissioners.
8. The commissioners may compel attendance of witnesses,
production of testimony, administer oaths, and punish for con-
tempt, as provided by law for judges of county courts.
9. The commissioners proceed to hear the parties.
Article 3265 V.C.S. states the rule for assessing damages
by the commissioners and provides that they shall reduce
their decision to wrking and sign and file it with the
county judge.
Under Article 3266 V.C.S. the commissioners adjudge the
costs and shall make a statement in writing of all the costs
which have accrued and state against whom such costs have been
adjudged and file such statement with the other papers.
The above constitutes everything that is required of the
commissioners. We notice that only one officer is involved
up to the point of filing the decision or award of the com-
missioners, and he is the county judge (1) with whom the
etition is filed, (2) who appoints the commissioners, and
P3) with whom the decision of the commissioners is filed.
No duty is required of any officer other than the county
judge.
If the decision or award is filed with the county clerk
instead of the judge and no objection is made thereto, it is
held to be sufficient. Sinclair Pipeline Company vs Peters,~
323 S.W.2d 651 (Civ.App. 19591 and Cox v. City of Fort Worth,
-iHowever,
102 S.W.2d 504 (Civ.App. 1937, error ism. o
immaterial to the decision of the matter in question.
It is true that in many instances we find that for con-
venience, the county judge will also have the clerk file the
petition, docket the,case, and give it a number before the
judge appoints the commissioners. However, the statutes
do not require anything of the clerk up to the filing of the
award with the county judge and anything that the clerk does,
even under the direction or request of the county judge, is
only for the convenience of the judge and parties involved.
There is no provision in law for any compensation for either
the judge or clerk up to the point of the filing of the
award and even though the services of the clerk and judge
are of benefit, yet they are not entitled to any compensation
for such services up to the point mentioned. 34 Tex.Jur. 531,
Public Officers, Sec. 1.16; Rice V~ Roberts, 177 S,W. 149
Mr. D. C. Greer, Page 3 (WW-1008)
(1915, error'~dism.);McCalla v. C&C% of Rockdale, 112 Tex. 209
246 S.W. 654 (1922); and Hallman v. ChDbf?ll, 57 Tex. 54 (1882f.
As noted above, Article 3266 provides for the commis-
sioners to make a statement in writing of all the costs which
have accrued. These costs are not costs of any officer, but
consist only of the compensation of commissioners, the cost of
serving notices, and all other matters pertaining to the
hearing.
1. WHEN OBJECTIONS TO AWARD ARE FILED
Article 3266(6) V.C.S. provides as follows:
"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 in writing, setting forth the
grounds of his objection, and thereupon the adverse
party shall be cited and the cause shall be tried
and determined as in other civil causes in the county
court."
It has been held that objections may be filed with the
county clerk as well as with the county judge. See Henderson
v. Texas Turnpike Authority, 308 S.W.Zd 199 (Civ.App. 1957,
error ref.).
When objections to the decision or award are filed,
the condemnation proceeding for the first time becomes a
civil case. See Pearson v. State, 159 Tex. 66,~315 S.W.2d
935 (19581, and Henderson v. Turnpike Authority, supra.
Our answer to the first question, then, is that when
objections to the award or decision are filed the items.of
cost thereafter to be charged are the same as in any other
civil case. We see no need to advise the items that are
or are not properly chargeable.
2. WHEN NO OBJECTIONS TO AWARD ARE FILED
The following discussion a plies only to caaea where
no objections ars filed to the Bhoision or award of the
special aommi86ionsr8.
The answor to the second qurstlon presents a different
situation from the first one.
Mr, D. C. Greer, Page 4. (WW-1008)
Article 3266(7) V,C.S. provides as follows:
"7. If no objections to the decision are filed
within ten (10) days, the County Judge shalX.cause
said decision to be recorded in the minutes of the
County Court, and shall make the same the judgment
of the court and issue the necessary pro,cessto
enforce the same,"
It is to be noticed that there are only three things
to be done in all cases, that is, the judge shall (1) cause
the decision or award of.the commissioners to be recorded
in the minutes of the county court, (2) make the same the
judgment of the court, and, if necessary, (3) issue process
to enforce the judgment.
We have seen from the Pearson and Turnpike decisions,
suvra. if no objections to,therd are filed the case never
becomes a "civii case." Therefore, the fees,prescribed by
law for civil cases are not proper items of cost where no
objections are filed, For example, the fee of the county
judge of $5.00 for "each civil case" (Art, 3926) is not
a proper item of cost, The library fee of $1.50 or $1.00
provided for in various statutes (V.C.S., Art. 17ORa-1,
et seq) to be charged in "each civil case" is not a proper
item of cost, There are other fees which are not proper
items of cost but we mention these two for the reason we
understand that in some counties it is thought they are
proper items to be charged.
We have seen under Article 3266(7) the:judge is
required to have the decision of the.commissioners recorded
in the minutes of the county court and shall make the same
the judgment of the court, We believe that this means that
the clerk shall (1) file the award and give it a number
to distinguish it from other cases, (2) record the award in
the court minutes, and (3) record the judgment in the court
minutes. Since the statute requires the award to be recorded
in the,minutes of the court and made the judgment of the court,
we believe that under Article 3930 the clerk is entitled in
all cases to charge the following fees: (1) 25$ for filing the
decision or award, (2) 20# for each 100 words for recording
the award with a minimum charge of $l,OO, and (3) $1.00 for
recording the judgment up to 200 words and 20# for each
additional 100 words in excess of 200 words. Of course, if
the clerk is required to furnish a certified copy of the
award or judgment or do anything else, he will be authorized
to charge the fee specifically prescribed by law for such
services,
Mr. D. C. Greer, Page 5 (WW-1008)
No fees are to be charged for any officer other than
the clerk as above set out, unless it should be necessary
for the judge as provided by Article 3266(7) to issue
process to enforce the judgment, in which event any officer
performing any duties will charge the fees authorized by
law.
SUMMARY
In condemnation suits the proper items of
cost to be charged are as follows:
1. Where objections to the decision or
award of the commissioners are filed, the same
costs provided by law for any civil case are to
be charged.
2. If no objections to the award are filed
the costs which are or are not to be charged are
as follows:
(a) The county clerk is entitled under
Article 3930 in all cases to charge the fees pro-
vided for filing the award, recording the award,
and recording the judgment of the court and such
other fees for services actually performed and for
which a fee is prescribed by law.
(b) The county judge is not entitled to any
fee in any case.
(c) No library fee shall be charged.
(d) No other officer is entitled to any fees
unless the judge issues some process to enforce the
jud~gment of the court in which case the other offi-
cers are entitled to the fees prescribed by law.
Yours very truly,
WILL WILSON
Attorney General of Texas
HGC:ncs
.. -
Mr. D. C. Greer, Page 6 (Ww-1008)
APPROVED:
OPINION COMMITTEE
W. V. GEPPERT, Chairman
J. Arthur Sandlin
Bill Allen
Elmer McVey
W. Ray Scruggs
Reviewed for the Attorney General by:
Morgan Nesbitt