What clerk fee applies to a Texas condemnation case, and when is it due?

Texas AG Opinion DM-0026: Condemnation Clerk Fees Cap at $40, With Different Timing in County and District Court

Plain-English summary

The State Department of Highways and Public Transportation asked when, and in what amount, it must pay county and district clerks for filing eminent domain (condemnation) cases. The state is not exempt from these filing fees, so the question was the dollar amount and the timing.

For county court, the Attorney General worked through the clerk fee schedule. A condemnation is not a "garnishment after judgment," so it lands in the "all others" category for filing an original action, which carried a $40 fee. But timing is different for condemnations, because a condemnation does not begin as a lawsuit. A prior opinion, following the courts, held that in its initial stage a condemnation is an administrative proceeding, with the judge acting as an administrative agent, and it becomes a lawsuit only when a dissatisfied party files objections. So the $40 fee in county court is not payable until either an objection is filed or a judgment is entered.

For district court, the analysis ran through two statutes. The general district-clerk fee for filing a suit, collected when the suit is filed, did not fit, because a condemnation is not initially a suit. Instead, the district clerk's authority to charge "a reasonable fee" for a service with no set fee applied. The Attorney General concluded a reasonable district-clerk fee is one set no higher than what a county clerk charges in similar proceedings, so a maximum of $40. As for timing, because the reasonable-fee statute is silent, the most reasonable reading is that the fee is paid when the proceeding is initiated. So in district court the maximum fee is $40, due when the condemnor starts the case.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The clerk fee schedules in the Local Government Code and Government Code have been amended many times since 1991, so the specific dollar figures here are almost certainly out of date. Verify current law before relying on any specific fee amount or rule mentioned here.

Common questions

How much does a Texas clerk charge to file a condemnation case?
Under this opinion, up to $40. In county court the condemnation fell in the "all others" filing category at $40, and a district clerk could charge a reasonable fee no higher than that.

When is the county-court condemnation fee due?
Not at filing. Because a condemnation starts as an administrative proceeding, the county-court fee is not due until an objection is filed or a judgment is entered.

When is the district-court fee due?
When the condemnor initiates the proceeding. The opinion read the silence of the reasonable-fee statute on timing to mean the fee is paid at the time the proceeding is started.

Background and statutory framework

The opinion began from the premise (drawn from prior opinions) that the state is not exempt from civil filing fees. Local Government Code section 118.052 set the county-clerk fee schedule, placing a condemnation in the "all others" original-action category at $40 (section 118.053). But Attorney General Opinion M-142, relying on Henderson v. Texas Turnpike Authority, held a condemnation is initially an administrative proceeding that becomes a lawsuit only when objections are filed, so the county-court fee is not due until an objection is filed or judgment entered (see also Denton County v. Brammer). For district court, Government Code section 51.317's filing fee, collected when a suit is filed, did not apply because a condemnation is not initially a suit; instead section 51.319's "reasonable fee" for services with no set fee governed. Following Attorney General Opinion H-453 (construing predecessor article 3928), the opinion concluded a reasonable district-clerk fee is one no higher than the county-clerk fee for similar proceedings, capping it at $40, and, the statute being silent on timing, payable when the condemnor initiates the proceeding.

Citations

Statutory provisions:

• TEX. LOCAL GOV'T CODE ANN. §§ 118.052, 118.053 (county clerk fee schedule)
• TEX. GOV'T CODE ANN. §§ 51.317, 51.319 (district clerk fees)
• V.T.C.S. art. 3928 (predecessor district-clerk fee statute)

Cases:

• Henderson v. Texas Turnpike Authority, 308 S.W.2d 199 (Tex. Civ. App.—Dallas 1957, writ ref'd)
• Denton County v. Brammer, 361 S.W.2d 198 (Tex. 1962)

Prior opinions referenced: Attorney General Opinions MW-447, MW-447A (1982), M-142 (1967), H-453 (1974).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0026
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0026.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

May 22, 1991

Mr. Arnold W. Oliver, P. E.
Engineer-Director
State Department of Highways and Public Transportation
Dewitt C. Greer Building
11th & Brazos
Austin, Texas 78701-2483

Opinion No. DM-26

Re: Fees payable to county and district clerks in eminent domain cases and when fees are payable by state agency

Dear Mr. Oliver:

You have requested our opinion as to when and in what amount fees are payable by the Department of Highways and Public Transportation to district and county clerks in eminent domain, or condemnation, proceedings. See generally Attorney General Opinions MW-447, MW-447A (1982) (state not exempt from filing fees in civil cases in district court).

Section 118.052 of the Local Government Code establishes a fee schedule to be charged by county clerks. That statute provides, in pertinent part:

Each clerk of a county court shall collect the following fees for services rendered to any person:

(1) CIVIL COURT ACTIONS

(A) Filing of Original Action (Sec. 118.053):

(i) Garnishment after judgment . . . . . . . . . $15.00

(ii) All others . . . . . . . . . . . . . . . . . . . . . . . . . $40.00

Since a condemnation proceeding is not a "[g]arnishment after judgment," it must perforce be included within the "[a]ll others" category listed above. In Attorney General Opinion M-142 (1967) at 2, however, this office declared that "a condemnation, in its initial stage, is not a cause, action, or suit in a Court, but is an administrative proceeding." The opinion relied for this proposition on the court's language in Henderson v. Texas Turnpike Authority, 308 S.W.2d 199 (Tex. Civ. App.—Dallas 1957, writ ref'd), wherein the court said:

It is our opinion that with the filing of objections by a dissatisfied party the condemnation proceedings are converted into a lawsuit as such for the first time. Up to that time the condemnation proceedings are only administrative proceedings in which the Judge acts as an administrative agent, not as the Judge of a court performing judicial duties in a pending lawsuit.

Id. at 201; see also Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962). Thus, according to Attorney General Opinion M-142 at 2, fees in such cases "are not payable until an objection is filed by the condemnor or a judgment is entered."

In our view, this conclusion is correct. Thus, as to condemnation proceedings filed in county court, the applicable fee is $40.00, but such fee is not payable until either an objection is filed or a judgment is entered.

Section 51.319 of the Government Code provides that:

The district clerk shall collect the following fees for services performed by the clerk:

. . . .

(5) for performing any other service prescribed or authorized by law for which no fee is set by law, a reasonable fee.

A 1974 opinion of this office, Attorney General Opinion H-453, construed article 3928, V.T.C.S., the predecessor of this provision, to cover the proper fee which "a district clerk is permitted to charge in an eminent domain proceeding." The opinion concluded:

In view of the fact that the Legislature has set a fee of twenty five dollars to be charged by county clerks for services rendered in condemnation cases, in our opinion a similar fee would not be unreasonable if charged by district clerks in such cases.

The opinion did not address the question of when a fee must be paid for condemnation proceedings filed in district court. Section 51.317 of the Government Code provides:

(a) The district clerk shall collect at the time the suit or action is filed the fees provided by Subsection (b) of this section for services performed by the clerk:

(b) The fees are:

(1) for filing a suit, including an appeal from an inferior court . . . . . . . . . . . $35

As Henderson, supra, established, however, a condemnation proceeding is not initially a suit. Thus, neither the fee schedule nor the time of payment provisions of section 51.317 are relevant to the filing of such proceedings.

In our opinion, the conclusion of Attorney General Opinion H-453 is correct: a fee collected by a district clerk under section 51.319(5) may be deemed "reasonable" if it is set no higher than the fee charged by a county clerk in similar proceedings, which is, in this case, a maximum of forty dollars. As to the time of collection, we believe that since section 51.319 is silent as to the time of collection, it is most reasonable to presume that the legislature intended that any fee be paid at the time the proceeding is initiated. Thus, as to condemnation proceedings filed in district court, the maximum fee which may be charged to a condemnor is forty dollars, and such fee is due at the time the condemnor initiates the proceedings in district court.

SUMMARY

A county clerk is authorized to assess a fee of $40 for condemnation proceedings filed in county court, but such fee is not due until either an objection is filed to the condemnation or a judgment is entered. A district clerk is authorized to assess a reasonable fee, not to exceed $40, in condemnation proceedings. Such fee is payable at the time the condemnor initiates the proceedings.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General