Mississippi Advisory Opinions February 07, 1996: AGO 96-0003 (February 07, 1996)

Advisory Opinion Text

Lucy Carpenter

Circuit Clerk, Marshall County

Post Office Box 459

Holly Springs, Mississippi 38635

Re: Circuit Clerk Fees

Dear Ms. Carpenter:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter asks:

Are the following fees exempt from the salary cap on compensation received by Circuit Clerks for the following services:

1. A search of the criminal records for felony convictions.

2. Services rendered to the Board of Supervisors in implementing redistricting plans.

3. Application fees collected by clerks who are appointed Passport agents.

4. Fees for programming and setting up voting machines and equipment for elections.

Section 9-1-43 of the Mississippi Code of 1972 (Supp. 1995) sets the limits on compensation for circuit clerks. In response to your question, Section 9-1-43(1) states in part:

There shall be exempted from the provisions of this subsection any monies or commissions from private or governmental sources which (a) are to be held by the chancery or circuit clerk in a trust or custodial capacity as prescribed in subsections (4) and (5), or (b) are received as compensation for services performed upon order of a court or board of supervisors which are not required of the chancery clerk or circuit clerk by statute.

Subsection (4) deals with the chancery clerk fees while subsection (5) deals with circuit clerk fees. Subsection 9-1-43(5) states:

(5) There is hereby created in the county depository in each county a clearing account to be designated as the “circuit court clerk civil clearing account, ” into which shall be deposited (a) all such monies and fees as the clerk of the circuit court shall receive from any person complying with any writ of garnishment, attachment, execution or any other like process authorized by law for the enforcement of a judgment; (b) any portion of any fees required by law or court order to be collected in civil cases; (c) all fees collected for the issuance of marriage licenses; (d) any other money as shall be deposited with the court which by its nature is not at the time of its deposit public monies but which is to be held by the court in a trust or custodial capacity in a case or proceeding before the court.

There is hereby created in the county depository in each county a clearing account to be designated as the “circuit court clerk criminal clearing account, ” into which shall be deposited (a) all such monies as are received in criminal cases in the circuit court pursuant to any order requiring payment as restitution to the victims of criminal offenses; (b) any portion of any fees and fines required by law or court order to be collected in criminal cases; (c) all cash bonds as shall be deposited with the court. The clerk of the circuit court shall account for all monies deposited in and disbursed from such account and shall be authorized and empowered to draw and issue checks on such account, at such times, in such amounts and to such persons as shall be proper and in accordance with law; provided, however, such monies as are forfeited in criminal cases shall be paid by the clerk of the circuit court to the clerk of the board of supervisors for deposit in the general fund of the county.

The following monies paid to the circuit clerk shall be subject to the salary limitation prescribed under subsection (1): (a) all fees required by law to be collected for the filing, recording or abstracting of any bill, petition, pleading or decree in any civil action in circuit court; (b) copies of any documents; and (c) any other monies or commissions from private or governmental sources for statutory functions which are not to be held by the court in a trust capacity.

Based on the above quoted statutes, any compensation received by circuit clerks for services rendered that are not statutorily required would be exempt from the salary limitations as set forth in Section 9-1-43 . In response to your specific inquiries:

(1) A search of the criminal records for felony convictions would be exempt.

Please note that criminal records for felony convictions would be considered public records and as such are subject to the Public Records Act. The Public Records Act only allows for the collection of fees that do not exceed the actual cost of searching such records, so such fees would be exempt. See Section 25-61-7 of the Mississippi Code of 1972 .

(2) Services rendered to the Board of Supervisors in implementing redistricting plans would be exempt.

(3) Application fees collected by clerks who are appointed Passport agents would be exempt.

Any activities performed by someone appointed as a Passport agent would be outside the scope of the duties of the circuit clerk and therefore, any compensation received for those activities would be exempt from the salary cap.

(4) Fees for programming and setting up voting machines and equipment for elections would be exempt.

Under Section 23-15-415 of the Mississippi Code of 1972, the authorities in charge of elections may employ someone to be custodian of voting machines. This would be outside the scope of the duties of the circuit clerk and/or registrar. Therefore, any compensation received as custodian would be exempt from the salary cap.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore Attorney General

David K. Scott Special Assistant Attorney General.