Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 18, 1982
MARK WHITE
Attorney General
Mr. Maurice S. Pipkin Opinion No. MW-456
Supreme Court Building Executive Director
P. 0. Box 12546
state Comdssion on Re: Collection and retention
Austin. TX. 76711. 2546
5121475.2501 Judicial Conduct of notary fees by employees of
Telex 9101674-1367 P.O. Box 12265 a justice of the peace
Telecopiet 51214750266 Austin, Texas 78711
Dear Mr. Pipkin:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742.6944 You have requested our opinion regarding the question of whether
a justice of the peace or his employees may collect and retain a fee
of fifty cents ($.50) for administering the oath, and affixing the
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
certificate and seal on sworn pleadings filed by a plaintiff in
91515333464 justice of the peace court in addition to the $7.00 fee authorized by
article 3935, V.T.C.S. You have also requested our opinion regarding
the question of whether an employee of a justice of the peace may
1220 Dallas Ave., Suite 202
collect and retain a fee for administering the oath and affixing the
Houslo”, TX. 770626966
713i6500666
certificate and seal on a personal bond for a defendant charged with a
class "C" misdemeanor, which personal bond has been authorized in the
justice court in which such employee is employed and in which such
606 Broadway. Suite 312 class "C" misdemeanor is pending.
Lubbock. TX. 79401.3479
606/747-5236
With regard to the first question, article 3935, V.T.C.S., states
that justices of the peace are required to collect the following fees
4309 N. Tenth. Suite 6 for services rendered by them:
McAllen, TX. 76501.1685
5121662.4547 A. Fee before entry of judgment:
200 Main Plaza, Suite 400 For each original cause or action,
San Antonio, TX. 76205.2797 cross-action, third-party action or intervention
5121225.4191 in the justice civil courts: for filing, or
filing and registering, or filing and recording,
An Equal Opportunity1
and for docketing and including taxing costs for
Affirmative Action Employer each and all applications, complaints, petitions,
returns, documents, papers, legal instruments,
records or proceedings; for issuing, including the
recording of the return thereon, each and all
citations, notices, subpoenas, commissions to take
depositions, orders, writs, processes, or any and
all other instruments, documents or papers
authorized, permitted or required to be issued by
p. 1584
Mr. Maurice S. Pipkin - Page 2 (MW-456)
the justices of the peace on which a return must
be recorded; for causing juries to be summoned and
swearing them, and receiving and recording jury
verdicts; for swearing witnesses; for approving
bonds involved in court actions; for administering
oaths; for rendering and recording judgment; and
for all other clerical duties in connection with
such justice of the peace court docket: a fee
of..... $7.00.
Article 3935 includes "administering oaths" as one of several
services for which a total fee of $7.00 shall be charged by a justice
of the peace. We note that article 3945, V.T.C.S.. provides for a
$.50 fee to be charged by a notary public for administering an oath
with certificate and seal. We do not believe this statute applies to
a justice of the peace administering an oath with certificate. A
justice of the peace has these powers pursuant to article 26,
V.T.C.S., because he is a justice of the peace. He is not, however,
for that reason a notary public subject to article 3945. Although a
justice of the peace must be commissioned as an ex officio.notary
public of his county, when he acts pursuant to article 3935 he acts as
a judicial officer and not as a notary public. Therefore, neither a
justice of the peace nor an employee acting for him may charge the
additional $.50 fee pursuant to article 3945, V.T.C.S.
As to the second question, chapter 17 of the Code of Criminal
Procedure sets out the court's authority to release a defendant on his
personal bond and the requisites for same. Chapter 17 does not
authorize the collection of any fees by the court with regard to a
defendant's release on his personal bond. The fee of $7.00 which
article 3935, V.T.C.S., authorizes for the filing of a complaint and
other instruments in a justice court is inapplicable to civil cases.
Attorney General Opinion MW-249 (1980) states that article 3935 is
limited to civil cases.
We are aware of no other statute which would permit a fee to be
charged and collected by an employee of a justice of the peace for
administering the oath and affixing the certificate and seal on a
personal bond. It is therefore our opi~nion that an employee of a
justice of the peace is not authorized to collect and retain a fee for
administering the oath and affixing the certificate and seal on a
personal bond for a defendant charged with a class "C" misdemeanor.
which personal bond has been authorized in the justice court in which
such employee is employed and in which such class "C" misdemeanor is
pending. See Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946) (public
officials not entitled to extra compensation for services within scope
of official duties).
p. 1585
Mr. Maurice S. Pipkin - Page 3 (MW-456)
SUMMARY
Neither a justice of the peace nor his
employee may collect a notary fee of $.50 for
administering an oath with certificate and seal on
sworn pleading filed in justice court pursuant to
article 3945, V.T.C.S. An employee of a justice
of the peace may not collect a fee for
administering an oath and placing the certificate
and seal on a personal bond for a defendant
charged with a class "C" misdemeanor.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1586