Can a county clerk charge a DA's office for a certified copy of a death certificate which will be used in a criminal case? I have reviewed the local government code, the health and safety code, and attorney general opinions. I was unable to find any such exception under 191.0046 of the Texas Health and Safety Code. I did found an old opinion from the attorney general (M-168) which states that fees under Code of Criminal Procedure may not be collected by county officials on salary basis. I am aware that this opinion is distinguishable from my case because death certificate fees are not found in the Code of Criminal Procedure. Please let me know any thoughts or opinions on this issue. Thank you for your time and consideration.

Since you indicate that your question relates to a case in which your office represents the State in a criminal case, section 154.004(b) of the Local Government Code becomes pertinent:

"If a county officer is paid an annual salary, the state or any county may not pay a fee or commission to the officer for the performance of a service by the officer."

The exclusions set forth in subsection (d), which pertain to fees the tax assessor-collector is authorized by law to collect, costs in a civil or eminent domain case or fees and commissions in connection with acquisition of rights of way for public roads and highways, would not apply.

If your county has a population greater than 20,000, your county clerk must be paid on a salary basis under the requirement of Tex. Const. art. 16, sec. 61(a). Commissioners courts in counties with populations of less than 20,000 have discretion to determine whether county officers are to be paid on a salary or fee basis. See id. at (d).