I have two questions which are related. Although I have 30 years of experience as a trial lawyer, this is my first gig working for the government. If these are stupid questions please take that into consideration.

Section 34.047 of the Civil Practices and Remedies Code states that when an officer seizes property and sales it pursuant to a writ of execution, "the officer is entitled to retain from the proceeds of a sale of personal property an amount equal to the reasonable expenses incurred by him in making the levy and keeping the property.” TEX. CIV. PRAC. & REM. CODE § 34.047. The statute does not mention anything about keeping any monies from the sale of real property. My assumption is that this is because there should be no expenses when you sale real property.

My first question is whether the officer who seizes either personal property or real property and sells it may retain a percentage of the proceeds as a commission?

My second question involves section 34.021 of the Civil Practices and Remedies Code which states, "[a] person is entitled to recover his property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside and the property has not been sold at execution." Tex. Civ. Prac. & Rem. Code Ann. § 34.021 (Vernon). If that occurs after seizure but before sale, may the officer charge a fee for his expenses in seizing and maintaining the property?

Fee issues are some of the most frustrating in government practice.

Usually the only way your officer can collect a percentage commission for a civil duty is if your commissioners court hasn’t yet set a fee for that service since August 31, 1981, AND the service for which it is charged is as described in R.C.S. 3933a as enacted in 1967 and repealed in 1981. Or, you have to find a specific statute that authorizes that the fee be taken as a percentage – those are rare nowadays.

Otherwise, the fee is as set by your commissioners court last year in compliance with the annual fee-setting procedure and the applicable statute. Texas Comptroller’s office has an info page on this, including the fees adopted by each county’s commissioners court last year, at http://www.texasahead.org/lga/sheriffs/ . See also Texas Local Government Code 118.131. http://www.statutes.legis.stat...m/LG.118.htm#118.131

The fee as set by the commissioners court must be reasonable, and may not be higher than necessary to pay for expenses of providing the service.

Some counties still list a percentage commission for their fees. Perhaps they have some mechanism capping their percentage commissions if the percentage exceeds what is a reasonable fee, I don’t know. Or maybe they are relying on the savings clause of Texas Local Gov’t Code 118.131(h) and the repealed statute. But if your commissioners have never set the fees since they were authorized to do so in 1981 and are still relying on the 1967 percentage commission law repealed in 1981, consider having your constables and sheriffs figure the fee up two ways: (1) percentage commission as in the 1967 statute and (2) actual cost to provide the service. Then, have them charge the lower of the two until your commissioners court can adopt a proper fee at the annual fee setting.

Best practice for fee setting includes a public hearing, not just a meeting adopting fees. Some fees explicitly require that they be set at after public hearing, not just at a public meeting. You can look at each fee individually to figure out if a particular fee can be set at a meeting (at which the public does not get to speak), or you can always do fee setting after public hearing, which can never steer you wrong.

If sued later, you want to be able to show the cost study information – how did you determine the cost of providing the particular service? Keep the historical info somewhere findable for many years so that if anyone challenges the fee as being unreasonable you can show that the evidence before the commissioners court reasonably supported the fee at the amount set. Don’t just look at what other counties charge. What does it cost for your county to actually provide the service?

If there is no fee set for the particular service rendered, usually no fee can be charged. If there is no statute permitting the commissioners court to set a fee, they cannot. So as to your second question, look to see if the services provided are services for which the commissioners court set a fee last year or look to see if you can locate a statute authorizing the fee.

Also, there is a difference between a fee for services, and the ability to pass through actual expenses incurred. That’s a case by case matter, again tying you to the statutes: is there a statute that permits the recovery of the expense in the particular situation?

For the future fee settings you will need: a statute permitting the fee to be set, a cost study (does not need to be fancy), a public hearing at which the cost study is presented and the public has an opportunity to present testimony, commissioners court action before October 1 adopting the fee, and a timely report to the comptroller’s office by October 15 so that the fee can take effect January 1, 2014.

And welcome to government service.