No. V-1124 (1950).

Case Date:November 22, 1950
Texas Attorney General Opinions 1950. No. V-1124 (1950). 1November 22, 1950Hon. Andrew P. JohnsonCounty AttorneyDimmit CountyCarrizo Springs, TexasOpinion No. V-1124Re: Legality of taxing the trial fee as costs in county court when a civil action is dismissed with prejudice.Dear Sir:We refer to your recent request which reads in part as follows:
"I have received your letter of August 30th enclosing copies of two opinions(fn1) concerning the propriety of taxing the trial fee in the County Court when a civil action is dismissed with prejudice upon an agreed settlement. These opinions have been very helpful to me.
"We have one case, however, that is not directly disposed of by these opinions. ... In this case the original petition was filed and citation issued. The return on the citation shows that it was served on March 9, 1950, and it was filed on March 10, 1950. No answer was filed, but on June 5, 1950, the court entered an order of dismissal, 'with full prejudice as against plaintiff,' and 'with full prejudice.' A certified copy of this order is enclosed herewith.
"I would appreciate it very much if you would advise me, by opinion or otherwise, whether or not the trial fee should be taxed as a cost in this case."
The judgment referred to is as follows:
"This the 5 day of June, 1950, the defendants having not as yet answered, came the
2plaintiff by his attorneys, and in open court announced to the court that all matters in controversy had been settled and disposed of by agreement of the parties, and plaintiff's attorney requested the court to enter an order of dismissal with full prejudice, and the court being of the opinion that such order should therefore be entered;
"It is therefore considered, adjudged and ordered by the court that this cause be, and it is hereby dismissed with full prejudice as against plaintiff; and it appearing to the court that all costs have been paid therefore let no execution issue."
Article 3926, V.C.S., provides in part: "The county judge shall also receive the following fees:
"2. ... For each civil cause finally disposed of by him by trial or otherwise, Five Dollars ($5), to be taxed against the party cast in the suit; ..."
The rule is stated in Corpus Juris Secundum (Vol. 50, p. 61--62):
"A voluntary discontinuance of a cause by plaintiff, or the dismissal of the action on his

To continue reading