Untitled Texas Attorney General Opinion ( 1961 )

THEA'ITORNEYGENERAI.
OF TEXAS
Honorable Tom Blackwell Opinion No. WW-1166
County Attorney
Travis County Re: Whether the sheriff's office
Austin, Texas is allowed a fee of $1.00 on
each and every defendant
named in the petition and
served with a citation
under Sec. 5a, of Article
2460a, V.C.S., and related
Dear Mr. Blackwell: questions.
You have requested an opinion on the following two
questions:
(1) "Under Sec. 5a, Article 2460a of the
Vernon's Civil Statutes of the State of Texas,
is the office, by'the officer serving the cita-
tion, allowed a fee of $1.00 on each and every
party named In the petition and served.
(2) "Under Sec. 5, Article 246oa of the
Vernon's Civil Statutes of the State of Texas,
is the court in which the Small Claims suit
filed limited to charge only $1.00 for the
citation fee even though more than one party
is served In the same county or in different
counties."
With reference to these questions, Section 5a of
Article 246oa, Vernon's Civil Statutes, reads as follows:
"Sec. 5a. A fee of One Dollar ($1) shall
be charged for the service of citation provided
for in Section 5 and shall be accountable as a
fee of office by the officer serving citation."
Section 5 of Article 2460a reads In part as follows:
"Sec. 5. . . . The Two Dollar ($2) filing
fee, provided for in this Section, the Three
Dollar ($3) jury fee provided for in Section 11
of this Act and the One Dollar ($1) citation
fee provided for in Section 5a shall constitute
Honorable Tom Blackwell, page 2 (NW-1166)
the only fees or costs authorized to be charged
in the Small Claims Court; . . ."
Article 246oa creates new courts in this state and
prescribes their jurisdiction and venue, and in addition, the
fees which may be charged. Originally, Section 5 provided
for only the Three Dollar ($3) jury fee and the Two Dollar
($2) filing fee. In 1955, Section 5a was added and Section
5 amended to include the One Dollar ($1) citation fee. Acts,
1955, 54th Leg., p. 571, ch. 187, sec. 2. (See Attorney Gen-
eraPs Opinion MS-80 (1953).)
In Attorney General's C,inion s-83 (1953),a question
arose‘cencerning the jury fee and filing fee, then the only
two fees authorized by the statute. The opinion held that the
only fees authorized by the statute were the jury and filing
fees, and no fee was authorized to be charged as a citation
fee, and none could be charged.
Your attention is called to the present wording of
the statute. It states that the only fees authorized are
those listed, and in Section 5a states that --
a fee of One Dol-
lar ($1) shall be charged for service of citation. In Attorney
General's Opinion s-83, supra, reference was made to the case
of McCalla v. City of Rockdale, 112 Tex. 209, ,246 S.N. 654
(1922), which held that unless a fee is provided by law for
an official service required to be performed and the amount
of the fee fixed by la?]none can be lawfully char ed. (See
also Nueces County v. Currington, 139 Tex. 297, 1g 2 S.U.2d
687 (I-942).) F'LI
th an officer may be required by law
to perform speci~ic"``~%es for which no compensation is
provided. MC Calla v. City of Rockdale, supr~a.
i:eare of the opinion that your first question
should be answered negatively, and the second answered in the
affirmative. Attorney General's Opinion s-83, supra, pointed
out the reasoning here, which in part reads:
"The emergency clause of House Eill 495,
53rd Legislature, states that because many
citizens are denied justice because of the
present expenses and delay of litigation creates
an emergency. Therefore, one of the main pur-
poses iincreating the Small Claims Courts was
to reduce the cost of litigation."
If the Legislature had intended that the full citation
fee would be allowed for every party served, we believe they
would have spelled it out in the statute. However, they did
not, but provided for only 'a fee of One Dollar.'
Honorable Tom Blackwell, page 3 (WW-1166)
Consequently, you are informed that it is our
opinion that under Sec. 5a of Article 2460a, V.C.S., the
office and officer serving the citation are allowed only a_
sin le One Dollar ($1) fee, regardless of the number of
& es named In the petition and served. Further, under
Sec. 5 of Article 246oa, V.C.S., the Small Claims Court Is
authorized to charge only One Dollar ($1) for the citation
fee, regardless of the number or location of the parties
served.
SUMMARY
Under Sections 5 and 5a of Article 246Oa,
V.C.S., only a single One Dollar ($1) citation
fee may be charged, regardless of the number and
location of the parties served.
Very truly yours,
WILL WILSON
Attorney General of Texas
EBS:dhs
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Winston Crowder
Pat Bailey
Elmer McVey
Grady Chandler
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.