Untitled Texas Attorney General Opinion

OFFICE OF
HE AT GpNERAL
AUSTIN, TEXAS
PRICE DANIEL
**TORNEY GERERAL March 1, 1948
Hon. Geo. H. Sheppard Oplnlon No. v-513
Comptroller of Public Accounts
Austin, Texas Re: Fees of district
clerk of a fee ~coun-
ty for reoordlng
sheriff's return on
process served In a
salary county.
Dear Sir:
Your letter requesting an opinion from this De-
partment on the above subject matter is, In part, as fol-
lows:
'There is some doubt in this de-
TEarrnt aa to whether the clerk in an
* county on a fee basis Is entitled
to receive a fee of fift (508) cents for
recording the Sheriff's Return from an
Iover t county where the subpoena has been
Issued by the clerk of the 'under' county
directed to the sheriff OS the lover'~:coun-
ty and the sheriff of the 'over' county
has duly executed same and returned said
subpoena to the clerk of the 'under' ooun-
tY*
"I shall thank you to advise this de-
partment whether the clerk of the 'under'
is entitled to the
cent See for recording the
. a . .
"I am enclosing herewith a letter
from the Honorable W. B. Clift, District
Clerk of the 92th District Court, Stephens
County, Texas.
Article 1026, V. C. C. P., reads, in part; as
sollows'
"The district clerk of any county
Hon. Geo. H. Sheppard, page 2 (V-513)
shall receive fifty cents fez recording
each account of the sheriff.
Honorable W. B. Cl&St, District Clerk of the
90th District Court, Stephens County, claims that he Is
entitled to a fifty-cent (509?) See from the State of
Texas for recording each sheriff’s return from any coun-
ty in the State. He claims that recording of a sheriff’s
return is in fact the recording of the sheriff’s account
as provided under Article 1026.
Therefore, the question for our dete{mlnation
is what constitutes an “account of the sheriff within
the meaning of Article 1026, V, C. C. P. Stated another
way, Is a sheriff’s return an account of the sheriff?
We believe that the answer is found in Articles 1030,
1033 and 1034, V. C. C. P., providing for fees due a
sheriff.
Article 1030, V. C. C. P., provides:
“In each county where there have been
cast at the preceding presidential election
less than 3000 votes, the sheriff or con-
stable shall receive the following fees when
the charge is a felony: . . .
“2. For summoning or attaching each
witness, fifty cents provided that in coun-
ties that have a population of less than
forty thousand inhabitants, as shown by the
preceding Federal census, the following fees
shall apply: For summoning or attaching
each witness, fifty cents, and where a bond
Is required of said witness,,,for the approv-
al of aaid bond, one dollar.
Article 1033, V. C. C. P., provides:
“Before the close of each term of the
district court, the district or county at-
torney, sheriff and clerk of said court
shall each make out a bill of the costs
claimed to be due them by the State, res-
pectively, In the felony cases tried at
that term; the bill shall show: . . .
“6. Where each defendant was arrest-
ed, or witness served, stating the county
Hon. Geo. H. Sheppard, page 3 (V-513)
in which the service wasmade, giving dls-
tanoe and direction from county seat or
county In which the process is served.
Article 1034, V. C. C. P., provides:
“The district judge,’ when any such
bill is presented to him, shall examine
the same carefully, and,inquire Into the
correctness thereofi and approve the same,
In whole or In part, or disapprove the en-
tire bill, as the facts and law may re-
quire; and s,uch approval shall be condi-
tioned only upon, and subject to the ap-
proval of the State Comptroller as provid-
ed for in Article 1035 of this Code, and
the Judge’s approval shall so state there-
in; and such bill, with the action of the
Judge thereon, shall be entered on the
minutes of said Court; and immediately
on the rising of said Court, the Clerk
thereof shall make a certified copy from
the minutes of said Court of said bill,
and the action of the Judge thereon, and
send same by registered letter to the
Comptroller. Provided the bill herein re-
ferred to shall before being presented to
such District Judge, be first pres~ented
to the County Auditor, if such there be,
who shall carefully examine and check the
same, and shall make whatever recomtnenda-
Mona he shall think proper to be made to
such District Judge relating to any item
or the whole bill.
“Fees due District Clerks for recora-
lng sheriff’s accounts shall be paid at
the end of said term; and all fees due
District Clerks for maklna transcripts on
change of venue and on appeal shall-be
paid as soon as the service la performed;
and the Clerks’ bill f,or such fees shall
not be required to show that the case has
been finally disposed of. Sills for fees
for such transcripts shall be approved by
the District Judge as above provided, and
with the same conditions, and when approved
shall be recorded as part of the mlnutesv
of the last preceding term of the Court.
(Einphasis ours)
Hon. Geo. H. Sheppard, page 4 (V-513)
It is noted that Article 1033 requires the
sheriff to make out a bill of costs claimed to be due
him by thti State. Article 1034 provides for the appro-
val of the district judge of the bill of costs and its
recording by the district clerk. Article 1034 further
provides that fees due district clerks for recording
sheriff’s accounts shall be paid at the end of the term.
In view of the above quoted statutes, It is our opinion
that an account of the sheriff mentioned in Article 1026,
v. c. c. P., is an account of fees due him by the State,
or a bill of costs OS fees due him by the State. This
Is consistent with the definition given this term by the
office of the Attorney General In 1911 (Opinion of March
16, 1911, to Hon. W. P. Lane, Comptroller, by John W.
Brady.) That opinion reads:
“The question to be decided is: Vhst
is meant b$ ‘each sheriff’s account.’ The
word ‘account’ has various meanings and
shades of meanings; but we think the same
was employed in these statutes to mean a
statement of computation of the items com-
prising the sheriff’s claim for services. . .”
Hence a sheriff’s return does not constitute
“ti account of the sheriff” wlthln the meaning of Artl-
cle 1026.
We are supported in this conclusion by virtue
of the provisions of Article 3912e-1, Section 1, V. C. S.,
which prohibita the State from paying any county officer
in any county having a population of twenty thousand
(20,000) Inhabitants or more, any fee or commlssion. The
sheriff of & county having a population of 20,OOO~or
more, therefore, has no fees due him by the State.
Since the sheriff of a salary cbunty is entit-
led to no fee from the State for making the return, he
would have no “actiount” to render for the payment there-
of. Hence there would be no “sheriff’s account” to be
recorded by the clerk for which he could be entitled to
any fee. While the clerk inakes an entry noting the re-
twn of citation, he Is nowhere authorized by statute to
collect a fee for such entry.
Since the sheriff’s return does not constitute
‘an account of the sheriff” within the mating of Arti-
cle 1026, V. C. C. P., and since the sheriff of a COWI-
ty having a population of 20,000 or more, does not have
an account of fees due him by the State, it is our opin-
Eon. Geo. H. Sheppard, page 5 (V-513)
ion that the district clerk, under the facts submitted,
is not entitled to any fee for recording a sheriff's re-
turn. We know of no statute which would authorize the
payment of such a See. In the absence of any expressed
provisions authorizing the payment of fees or commlsslon8,
no fee can be allowed, since statutes preacrlblq fees
for public officers are strict.1 construed. McCalla v.
City of Rockdale, (Corn.App.) 2%6 9. W. 654.
SUMMARY, .
The district clerk on a fee basis In
a county containing less than twenty thou-
sand inhabitants Is not entitled to any fee
for recording the sheriff's return from a
county containing a population of 20,000 or
7ore;where the subpoena was issued by the
fee county.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
JR:mw
APPROVED: