Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
August 3, 1978
JOHN L. HILL
Attorney General
Honorable Joe Resweber Opinion No. H-1222
Harris County Attorney
HarrLs County Courthouse Re: Fees of civil process
Houston, Texas 77002 servers other than sheriffs or
constables.
Dear Mr. Resweber:
At the request of the District Clerk of Harris County you have asked
about citations served pursuant to Rule 106(e), Texas Rules of Civil
Procedure, which specifies that where it is impractical to secure service by
having an officer deliver copies of citations to defendants, or to mail copies
to them, the court may authorize service ‘by any disinterested adult named
by the court in its order. . . .‘I
You advise that a citizen of Harris County was authoriied by a district
court there to serve a citation and a precept upon a respondent in a divorce
action. The person so authorized noted on the return for each instrument a
$20.00 fee for serving it, evidently intending that such sums be taxed as costs
of court in the matter. You ask if the district clerk is authorized or required
to tax fees for service under Rule 106(e) as court costs, and if so, in what
amounts they should be taxed. You also ask whether the clerk should file the
return of service with the papers~of the suit.
Rule 106 was amended by Supreme Court order dated July 11, 1977, to
become effective January 1, 1978. Subsection (e), added at that time, has not
yet been judicially construed by an appellate court, but we believe it will be
read and applied in conjunction with Rule 107.
Rule 107, as amended, provides that the return of the officer executing
the citation shall be endorsed on the citation and attached to it, but the rule
now specifies, additionally, that where citation is executed “as authorized by
Rule 106(e) . . . , proof of service shall be made in the manner ordered by the
court.”
When a person authorized by the court to make such service delivers to
the clerk an instrument which purports to be the required proof of such
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Honorable Joe Resweber - Page 2 (H-1222)
service, it is the ministerial duty of the clerk to accept it and file it. V.T.C.S. art.
1899; Tex. R. Civ. P. 74; see Wagner v. Garrett, 269 S.W. 1030 (Tex. 1925); cf.
Attorney General Opinion ml55 (1978) (duty to file uncertified pleadings). An
instrument is regarded as filed w’hen it is placed in the clerk’s custody for filing.
Newsome v. Boyd, 203 S.W.2d 874 (Tex. Civ. App. - Galveston 1947, no writ).
The taxation of costs is also a ministerial duty of the clerk which may be
corrected by the court. Tex. R. Civ. P. 622; Hammonds v. Ham.monds, 313 S.W.2d
603 (Tex. 1958). Each party to a suit is liable for all costs incurred by him, but a
successful party may ordinarily recover costs incurred in the suit. Tex. R. Civ. P.
125, 127, 131. The cost bill prepared by the clerk is presumptively correct and stands
as a judgment unless the trial court, upon motion, disallows items included in the
bill. Hammonds v. Hammonds, su ra; Manzer v. Barnes, 216 S.W.2d 1015 (Tex. Civ.
App. - Amarillo 1949, mand. overr. -3- ; -see Tex. R. Civ. P. 141, 142, 143.
The fees due sheriffs and constables for serving civil process are properly
taxed as costs of the suit. See V.T.C.S. art. 3933a; Tex. R. Civ. P. 17, 125, 126, 128.
However, the Code of Civii%ocedure and the civil statutes are silent about the
fee to be received by a person serving civil process in lieu of, the sheriff or the
constable. Cf. Code Crim. Proc. art. 1031 (fees for criminal process served by
peace office=ther than sheriff).
In Metcalfe v. McCarty, 301 S.W.2d 263 (Tex. Civ. App. - Austin 1957, no
writ) a court-appointed surveyor’s fee was taxed as a cost of the suit even though
no statute expressly authorized it or specified the amount to be,allowed. The court
said that in such circumstances, fees should be fixed and allowed on a reasonable
basis taking into consideration the circumstances of the case, the charges made,
the type of work performed, and the evidence offered in support thereof and in
opposition thereto. -Cf. City of Hurst v. City of Colleyville, 501 S.W.Zd 140 (Tex.
Civ. App. - Fort Worth 1973, no writ) (not allowed where surveyor not court-
appointed); Taormina v. Culicchia, 355 S.W.2d 569 (Tex. Civ. App. - El Paso 1962,
writ ref’d n.r.e.) (auditor not court-appointed).
We believe the courts will adopt the same approach with respect to the fees
of persons authorized by court order to serve process pursuant to subsection fe) of
Rule 106. The propriety of the amount taxed, if challenged, is a matter for the
judicial discretion of the court.
SUMMARY
It is the ministerial duty of the clerk of the district court to
file returns of process served by “disinterested persons”
authorized to serve process pursuant to Rule 106(e), Texas
Rules of Civil Procedure, and to include a fee therefor as an
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Honorable Joe Resweber - Page 3 (H-1222)
item of the cost bill for the suit. The amount to be taxed is
the amount claimed by the person making the return, unless
otherwise ordered by the judge.
APPROVED:
Opinion Committee
P. 4891