Untitled Texas Attorney General Opinion ( 2014 )

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT
March 3, 2014
The Honorable Harold V. Dutton, Jr. Opinion No. GA-1044
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether justice courts are authorized to charge
Post Office Box 2910 a fee for filing a petition to apply for an
Austin, Texas 78768-2910 occupational driver's license (RQ-1148-GA)
Dear Representative Dutton:
You ask whether justice courts are authorized to charge a fee for fi ling a petition to apply
for an occupational driver's license. 1 Section 521.242 of the Transportation Code provides the
procedure for a person whose driver's license has been ·suspended to apply for an occupational
license by filing a verified petition in certain courts. TEX. TRANSP. CODE ANN. § 521.242 (West ··
Supp. 2013). The statute was recently amended by House Bill438 to (1) authorize justice courts,
in addition to county and district courts, to receive such a petition and (2) delete the word "civil"
from subsection (e) as follows: "The clerk of the court shall file the petition as in any other
[eWiij matter." Act of May 22, 2013, 83d Leg., R.S., ch. 860 § 1, 2013 Tex. Gen. Laws 2209,
2209 ("House Bill 438").
To construe section 521.242 as amended, we consider "its role in the broader statutory
scheme." 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). A person's driver's license
may be suspended for reasons both criminal and noncriminal. See, e.g., TEX. TRANSP. CODE
ANN. §§ 521.0445 (West 2013) (nonpayment of child support obligations); 521.292 (grounds for
suspension); 601.057 (West 2011) (inadequacy of proof establishing financial responsibility);
601.152 (owner or operator of vehicle involved in an accident in certain circumstances). The
procedure in chapter 521, subchapter L of the Transportation Code to seek an occupational
driver's license for "essential need" is separate from any right to challenge or appeal a driver's
license suspension. !d. §§ 521.241-.253 (West 2013 & ·supp. 2013); see generally State ex rel.
Curry v. Gilfeather, 937 S.W.2d 46, 50 (Tex. App.-Fort Worth 1996, orig. proceeding). The
person whose driver s license has been suspended initiates the proceeding by filing a verified
petition in an appropriate court. TEX. TRANSP. CODE ANN. § 521.242(a) (West Supp. 2013). The
statute requi res notice and hearing before the court determines whether the petitioner may
1
See Letter from Honorable Harold V. Dutton, Jr., House Comm. on Urban Affairs, to Honorable Greg
Abbott, Tex. Att'y Gen. at I (Aug. 27, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Harold V. Dutton, Jr. - Page 2 (GA-1044)
receive an occupational license. !d. §§ 521.243-.244(a) (West 2013). The proceeding is a civil
matter, independent of any criminal proceeding. Gilfeather, 937 S.W.2d at 50.
An official such as a judge or clerk of a justice court may charge a fee for performing an
official duty only as authorized by statute. See Moore v. Sheppard, 192 S.W.2d 559, 560-61
(Tex. 1946). While chapter 521, subchapter L does not address filing fees, the Legislature has
promulgated general fee statutes for the different types of trial courts. See, e.g., TEx. Gov'T
CODE ANN. §§ 51.317, .319 (West 201 3 & Supp. 201 3) (district court)· TEX. Lo . Gov T CODE
ANN. §§ 118.011, .052 (West Supp. 2013) (county court), 118.1 21, .122 (West 2008) Uustice
court). This office has determined that a court's general statutory authority to charge a fee for
filing an original petition in a civil matter applies to the filing of a petition to apply for an
occupational driver's license. Tex. Att'y Gen. Op. No. L0-96-131, at 2.
. You ask whether, by deleting the word "civil" from subsection 521.242(e) of the
Transportation Code, House Bill 438 eliminated the authority of a court clerk to charge a fee for
filing the petition to apply for an occupational driver's license. Request Letter at 1. After
amendment, subsection 521.242(e) provides that a "clerk of the court shall file the petition as in
any other matter." TEX. TRANSP. CODE ANN. § 521.242(e) (West Supp. 2013). House Bill 438
does not change any other aspect of a section 521.242 proceeding. The plain language of
subsection 521.242(e) following amendment does not suggest a legislative intent to transform the
proceeding into a criminal matter or to dispense with the filing fees that district and county
courts charged prior to the amendment. A court would likely conclude that House Bill438 does
not eliminate a court's authority to charge a fee for filing a section 521.242 petition. Cf
Pettigrew v. State, 48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001) ("To the extent that the
material portions of the statute have remained unchanged we presume that the Legislature
intended that the judicial interpretation of the previous version of the statute continue to apply.");
Gilfeather, 937 S.W.2d at 50 (determining that a section 521.242 proceeding is civil in nature).
You also ask whether, and on what basis, a justice court may charge a fee for filing a
section 521.242 petition. Request Letter at 2. Section 118.122 of the Local Government Code
authorizes a justice court to collect a fee "for all required filings of documents ... and all other
processes and. procedures in a civil matter in a justice court." TEX. Loc. Gov'T CoDE ANN. ·
§ 118.122(a) (West 2008). Subsection 52 1.242(e) of the Transportation Code requires the court
clerk to file the verified petition, making it a "required filing'' under section 118.1 22 oJ the Local
Government Code. As discussed above, a section 521.242 proceeding is a civil matter.
Gilfeather, 937 S.W.2d at 50. Consequently, section 118.122 of the Local Government Code
authorizes a justice court to charge a fee for filing a petition to apply for an occupational driver's
license.
The Honorable Harold V. Dutton, Jr. - Page 3 (GA-1044)
SUMMARY
House Bill 438 does not eliminate a court's authority to
charge a fee for filing a petition to apply for an occupational
driver's license under section 521.242 of the Transportation Code.
Section 118.122 of the Local Government Code authorizes justice
courts to charge a fee for filing such a petition.
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
.·
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee