Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 11, 2007
The Honorable Susan D. Reed Opinion No. GA-0568
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center Re: Whether the special filing fee in Local
300 Dolorosa, Fifth Floor Government Code section 133.154 must be
San Antonio, Texas 78205-3030 collected for cases filed in a statutory probate
court (RQ-0577-GA)
The Honorable John R. Roach
Collin County Criminal District Attorney
Collin County Courthouse
210 South McDonald, Suite 324
McKinney, Texas 75069
Dear Ms. Reed and Mr. Roach:
You ask whether the special filing fee in Local Government Code section 133.154 must be
collected for cases filed in a statutory probate court. 1
The Seventy-ninth Legislature added section 133.154 of the Local Government Code by
enacting House Bill 11. 2 The section requires "the clerk of a district court, statutory county court,
or county court" to collect a special fee "on the filing of any civil suit to be used for court-related
purposes for the supportofthejudiciary." TEX. Lac. GOV'TCODEANN. § 133.154(a) (Vernon Supp.
2006).3 The statute does not expressly mention statutory probate courts. Id. But statutory probate
lSee Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Mar. 15, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Reed Letter]; Letter from Honorable John R. Roach, Collin County Criminal
District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 16,2007) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Roach Letter].
2See Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, § 13, 2005 Tex. Gen. Laws 34, 38 ("House Bill II").
3We note that the Eightieth Legislature acted in Senate Bill 600 to raise the special fee in section 133.154 of
the Local Government Code from $37 to $42, among other changes. See Act ofMay 15, 2007, 80th Leg., R.S., S.B. 600,
§ 4 (to be codified at TEX. Lac. GOV'T CODE ANN. § 133.154(a)).
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The Honorable John R. Roach
courts are county-level courts that are created by statute, and it has been suggested that the term
"statutory county courts" in section 133.154 may include statutory probate courts. 4
I. Background
To put your question in context, we review the constitutional and statutory basis for various
types ofcounty-level courts and some ofthe reasons for questioning the meaning ofsection 133.154.
The Texas Constitution authorizes two distinct types ofcourts, those created by the constitution and
those created by statute. Article V, section 15 of the constitution establishes a "County Court" for
each county. TEX. CONST. art. V, § 15. These courts are commonly referred to as "constitutional
county courts" to distinguish them from county-level courts created by statute. See Tex. Pipe Line
Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15
as "constitutional county courts"). Article V, section 1 ofthe constitution authorizes the Legislature
to "establish such other courts as it may deem necessary," including county-level courts. ,TEX.
CONST. art. V, § 1; see also Regian v. Sowell,~534 S.W.2d 175,176 (Tex. Civ. App.-Waco 1976,
writ refd n. r. e.). Article V, section 1 courts are sometimes referred to as "statutory courts." See
Regian, 534 S.W.2d at 176 (observing that under article V, section 1 ofthe Texas Constitution, "the
Legislature has from time to time created so~called 'statutory' courts across the State, such as county
courts at law, county civil courts, domestic relations courts, and others").
Title 2, subtitle A of the Government Code establishes statutory courts and otherwise
provides for both constitutional and statutory courts. See, e.g., TEX. GOV'T CODE ANN. chs. 22
("Appellate Courts"), 24 ("District Courts"), 25 ("Statutory County Courts"), 26 ("Constitutional
County Courts") (Vernon 2004 & Supp. 2006). Chapter 25, subchapter C establishes statutory
county-level courts for particular counties. See ide §§ 25.0041~.2512. Bexar County, for example,
has twelve "county courts at law," and two "statutory probate courts." See ide § 25.0171(b)-(c)
(Vernon 2004). Section 25.0451 provides that "Collin County has the following statutory county
courts," being six county courts at law, and "has one statutory probate court." See ide § 25.0451.
The fee you ask about is imposed in "district court, statutory county court, or county court."
See TEX. Loc. GOV'TCODEANN. §§ 133.004, .154 (Vernon Supp. 2006). We have received briefing
about references to county-level courts in statutes outside of chapter 133 of the Local Government
Code attempting to establish the meaning ofthe terms "statutory county court" and "statutory probate
court."s For,example, the term "statutory county court" is expressly defined to exclude statutory
probate courts as those terms are used in title 2 of the Government Code. See TEX. GOV'T CODE
4See Brief from Carl Reynolds, Administrative Director, Office of Court Administration, to Honorable Greg
Abbott, Attorney General of Texas, at 2 (Apr. 25, 2007) (on file with the Opinion Committee) [hereinafter Reynolds
Briet].
5See Roach Letter, supra note 1, at 6; Reynolds Brief, supra note 4, at 2-3; Brieffrom Honorable Guy Herman,
Presiding Statutory Probate Judge, Statutory Probate Courts, State ofTexas, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Apr. 23,2007) (on file with the Opinion Committee).
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The Honorable John R. Roach
ANN. § 21.009 (Vernon 2004). 6 But the organization ofchapter 25 ofthe Government Code suggests
that, at least for some purposes, a statutory probate court may be a subclass of statutory county
courts. 7 And we are mindful that, although the term "county court" generally means a constitutional
county court, it may have different meaning in specific contexts. 8 These incongruities illustrate that,
while other statutes may be informative, terms and phrases must be construed in the context of the
statute in which they appear. See TEX. GOV'T CODE ANN. § 3II.OII(a) (Vernon 2005).
Consequently, rather than attempt to discern a definitive meaning for the terms "statutory county
court" and "statutory probate court" from other statutes, we consider those terms as they are used in
the context of chapter 133 of the Local Government Code, as amended by House Bill 11.
6Section 21.009 provides that in title 2 of the Government Code:
(1) "County court" means the court created in each county by Article V, Section
15, of the Texas Constitution.
(2) "Statutory county court" means a county court created by the legislature under
Article V, Section 1, of the Texas Constitution, including county courts at law,
county criminal courts, county criminal courts of appeals, and county civil courts
at law, but does not include statutoryprobate courts as defmed by Section 3, Texas
Probate Code.
(4) "Statutory probate court" has the meaning assigned by Section 3, Texas
Probate Code.
TEX. GOV'T CODE ANN. § 21.009 (Vernon 2004) (emphasis added). Under section 3 of the Probate Code, a statutory
probate court is a "statutory court designated as a statutory probate court under Chapter 25, Government Code." TEX.
PROBe CODE ANN. § 3(ii) (Vernon 2003). Thus, for Government Code title 2 purposes, ifchapter 25 expressly designates
a court as a "statutory probate court," it is not a "statutory county court" despite the fact that it is a county-level court
created by statute.
71t has also been brought to our attention that an unrelated statute, section 291.008 of the Local Government
Code, is construed to impose a courthouse security fee in cases filed in statutory probate courts, even though those courts
are not expressly included in the statute. See Tex. Att'y Gen. Ope No. DM-283 (1994) at 7 (construing TEX. Loc. GOV'T
CODE ANN. § 291.008); see also Roach Letter, supra note 1, at 6; Reynolds Brief, supra note 4, at 2-3. Relying on the
legislative history ofthat particular statute, Attorney General Opinion DM-283 determined that the courthouse security
fee was intended to be collected in all probate cases, regardless ofthe court in which a probate case was filed. See Tex.
Att'y Gen. Ope No. DM-283 (1994) at 7. As Local Government Code section 291.008 does not contain the term
"statutory county court" and was not otherwise implicated by House Bill 11 's amendments to chapter 133 of the Local
Government Code, we do not revisit the analysis in that opinion.
8See, e.g., TEX. GOV'T CODE ANN. §§ 21.009(1), 26.001-.353 (Vernon 2004 & Supp. 2006) (using "county
court" to refer to a constitutional county court); TEX. PROBe CODE ANN. § 3(e) (Vernon 2003) (defming "county court"
and "probate court" as synonyms that include not only constitutional and statutory county-level courts, but also district
courts in some circumstances), TEX. PROBe CODE ANN. § 3(ii) (Vernon 2003) (defining "statutory probate court" as
limited to courts designated as statutory probate courts in chapter 25 ofthe Government Code); Hunt, 228 S.W.2d at 153
(holding that "county court" in jurisdictional statute included both constitutional county court and county court at law).
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The Honorable John R. Roach
II. Chapter 133 of the Local Government Code, as Amended by House Bill 11
Local Government Code chapter 133 consolidates and standardizes civil and criminal fee
collection, remittance, and distribution. TEX. Loc. GOV'T CODE ANN. § 133.001 (Vernon Supp.
2006). The chapter does not define the term "statutory county court" nor does it expressly state
whether the term "statutory county court" includes statutory probate courts. However, section
133.004 provides that chapter 133 applies to the following fees, among others:
(4) the filing fees for the judicial fund imposed in certain statutory
county courts under Section 51.702, Government Code;
(5) the filing fees for the judicial fund imposed in certain county
courts under Section 51.703, Government Code;
(6) the filing fees for the judicial fund imposed in certain statutory
probate courts under Section 51.704, Government Code; ... and
(10) the filing fee for the judicial fund imposed in district court,
statutory county court, and county court under Section 133.154.
14 § 133.004 (emphasis added).9 Subsections 133.004(4) and (6) expressly distinguish between
statutory county courts and statutory probate courts. Thus, the reference to "statutory county court"
in subsection 133.004(10) cannot be construed to include statutory probate courts. See id. And
when read in light of section 133.004, section 133.154's imposition of a fee for "district court,
statutory county court, and county court" cannot be construed to include statutory probate courts.
See id.
No other provision in the remainder of chapter 133 of the Local Government Code or in
House Bill 11 suggests that the special fee in section 133.154 is applicable to statutory probate court
proceedings, or that statutory probate courts are included as statutory county courts. To the contrary,
House Bill 11 maintains the distinctions between the various courts in its amendments to chapter 101
of the Government Code. House Bill 11 adds the special fee to chapter 101's subchapters that list
the fees to be collected in district courts (subchapter D), statutory county courts (subchapter E), and
constitutional county courts (subchapter G), but it fails to add the fee to the subchapter concerning
statutory probate courts (subchapter F). See House Bill 11, supra note 2, §§ 14-16 (adding TEX.
GOV'T CODE ANN. §§ 101.062, .083, .123); see also TEX. Gov'T CODE ANN. §§ 101.101-.102
(Vernon 2005) (subchapter F). The fee listings in chapter 101 do not control our construction of
section 133.154 of the Local Government Code. See TEX. GOV'T CODE ANN. § 101.001 (Vernon
2005) (limiting the effect of the fee lists in chapter 101). But the bill's failure to list the special fee
9Section 133.004(6) of the Local Government Code was recently amended to delete the word "certain." See
Act of May 22,2007, 80th Leg., R.S., ch. 718, § 6,2007 Tex. Sess. Law Servo 1346, 1350.
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The Honorable John R. Roach
as a statutory probate court fee in chapter 101 is consistent with the omission of statutory probate
courts from the courts made subject to the fee in Local Government Code section 133.154.
Consequently, chapter 101 ofthe Government Code, as amended by House Bill 11 ,is consistent with
our textual construction of Local Government Code section 133.154. We conclude that the special
filing fee in Local Government Code section 133.154 does not apply to cases filed in a statutory
probate court. 10
lOyou have informed us that the clerks of statutory probate courts in some counties have collected the fee in
section 133.154 ofthe Local Government Code while the clerks in other counties have not. See Roach Letter, supra note
1, at 1. We are aware that our conclusion that the fee does not apply to statutory probate courts may pose some
administrative difficulties. Like a court, however, this office must construe unambiguous statutes according to their plain
meaning and must not second-guess legislative policy choices. See McIntyre v. Ramirez, 109 S.W.3d 741,745,748
(Tex. 2003); Tex. Att'y Gen. Gp. No. GA-0563 (2007) at 3.
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The Honorable John R. Roach
SUMMARY
The special filing fee that Local Government Code section
133.154 requires for all cases filed in district court, statutory county
court, and county court does not apply_ to cases filed in, a statutory
probate court.
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee