Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
fecember 2. 1985
JIM MATTOX
Attorney General
Supreme Court Building Honorable F. Dunciatllmnes Oph~iom No. .JM-384
P. 0. BOX 12548 District Attorney
Austin. TX. 76711.2548 P. 0. Box 441 Re: Whether certain fees may
512/47&2501 Greenville, Texas 75401 be charged by a district clerk
Telex 9wa74-1367
Telecopier 5121475-0266
Dear Mr. Thomas:
714 Jackson, Suite 700 You ask about the fees a district clerk may charge in couuection
Dallas, TX. 75202.4506
with a lawsuit fil'edin district court. At the time a suit is filed
2141742-8944
in district court a fee of $75.00 is due and payable. Gov't Code
551.317(b)(l) (fomerly V.T.C.S. art. 3927, §I; amended by Acts 1985,
4824 A,berta A”& suite 160 69th Leg., ch. 239, at 2038); Acts 1985, 69th Leg., ch. 480, at 3932
El Paso, TX. 79905-2793 (bill adopting Gor"t Code). A catchall provision authorizes district
9151533.3484 clerks to charge reasonable fees for the performance of duties for
which the legislature has set no fee. Gov't Code §51.319(5) (formerly
1001 Texas, Suite 700 V.T.C.S. art.~ 3928, 55). You ask whether the catchall provision
Ho”sto”, TX. 77002.3111 authorizes a district clerk to charge, in addition to the initial
7131223.5886 $75.00 filing fee, reasonable fees for filing each order and judgment
in a suit. You inform us that the Office of Court Administration
takes the position that the initial $75 fee covers all clerical
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
services in a suit except those for which additional fees are
aw747.5238 expressly provided. We think that the Office of Court Administration
has interpreted the statute correctly.
4309 N. Tenth. Suite 6
We base our conclusion on the structure and language of the
McAllen, TX. 76501.1685
5121682-4547
applicable fee statutes. Gov't Code 5551.317 - 51.319. The
legisiature has provided for fees to be charged by thti clerk at the
cite a suit is filed in district court. Gov't Code 551.317(b)(l).
200 Mann Plaza. Suite 400 The legislature has also set fees to be charged for the performance of
San Antonio. TX. 78205.2797
certain services by a district clerk at the time of performance or
512/225-4191
request for performance and has provided that any such fee is "in
addition to a fee under Section 51.317." Gov't Code 951.318(a). That
An Equal Opportunity/ language implies that other duties performed by a district clerk in
Affirmative Action Employer connectlou with a lawsuit are covered by the initial fee.
A 1980 cam: supports our reading of section 51.317(b)(l).
Rodeheaver v. Aldstz 601 S.W.Zd 51 (Tex. Civ. App. - Houston [lst
Dist.1 1980, writ ref d n.r.e.). In Rodeheaver the court dealt with
the following language:
p. 1760
Honorable F. Duncan Thomas - Page 2 (JM-384)
For each adve::seaction or contest, other than
the filing of a claim against an estate, in a
cause or docket in a probate court, a fee to be
due and payable and to be paid by the party or
parties starting or initiating such adverse action
or contest, but excluding other items listed in
Paragraphs A, B, C, and D of this Section 1, of
$25.00.
V.T.C.S. art. 3930(b). §lh(l)(c). The court concluded that the $25
fee covered various duties performed by the county clerk during the
course of the suit:
A reading of .Article 3930(b) show. that the
$25.00 fee which the county clerk is to collect
for each flied adverse action or contest covers
not only the c:.erk's services for the initial
filing of the acrion but also many other services
which will accrue during the processing of the
suit. Thus, the statutory fee is, in effect, an
advance payment for the cost of services which
have not been rendered et the time the fee is
collected.
Rodeheaver, 601 S.W.2d at 54. We think section 51.317(b)(l) must be
read in the same way.
Because the legislature has set a $75 fee' that covers the filing
of orders and payments in a suit, the catchall provision is inappllc-
able to such filings since it applies only when the legislature has
not set a fee to cover the clerk's performance of a duty.
1. The Sixty-ninth Lq;islaturr amended article 3927 to increase
the initial filing fee fo,c a suit In district court from $25.00 to
$75.00. Acts 1985, 69th Leg., ch. 239 at 2038. The text of the Govern-
ment Code, which was adopted in the same legislative session, states
that the initial filing fee is $25.00. Gov't Code 051.317(b)(l), Acts
1985, 69th Leg., ch. 480, at 3932. The same bill that enacted the
Government Code repealed a:rticle3927. Id. at 4088. The increase in
the filing fee is effectj.ve,nonethele= because the repeal of a
statute by a code does not affect an amendment of the statute by the
same legislature that enacted the code. V.T.C.S. art. 5429b-2,
93.11(c). And the codification was not intended to effect a substan-
tive change in the law. Ac.ts1985, 69th Leg., ch. 480, 127. at 4090.
p. 1761
Honorable F. Duncan Thomas .-Page 3 (JM-384)
1
SUMMARY
The initial feseof $75.00 for filing a suit in
district court :overs the services performed by
the district clerk during the course of the cult
except for the service for which a fee is
expressly provided. Gov't Code 051.317.
VeryItruly your
MATTOX
Attorney General of Texas
JACKHIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney (General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Uoelk
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Cilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood
.
p. 1762