Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORNEY
GENERAL December 12,1997

The Honorable Eugene D. Taylor Opinion No. DM-459
Williamson County Attorney
Courthouse Annex, Second Floor Re: Whether the State of Texas is exempted from
405 Martin Luther Ring, Box 7 paying filing fees and other court costs prior to
Georgetown, Texas 78626 judgment; reconsideration of Attorney General
Opinion MW-447A (1982) (RQ-943)

Dear Mr. Taylor:

You state that your office represents the State of Texas in many criminal, juvenile, and civil
proceed& pending in the courts of your county. When these cases require the service of citations,
subpoenas, or other process in other counties of the state, you have relied on Attorney General
Gpiion MW-447A (1982) as authority that the state need not pay security for costs, such as filing
fees and fees for service of process, prior to judgment. You state that sheriffs and constables have
been questioning the continued viability of Attorney General Gpinion MW-447A and have
been demanding fees in advance. You ask whether the conclusions of Attorney General Opinion
MW-447A are still valid.

Attorney General Gpiion MW447A clarified Attorney General Gpiion MW-447 (1982),
which concluded that section 1 of former article 3912e, V.T.C.S. (1925), now codified as section
154.004 of the Local Government Code,’did not exempt the State of Texas from having to pay filing
fees in civil cases filed with district clerks. Section 154.004 of the Local Government Code provides
that the state may not pay a fee or commission to a district officer or a county officer who is paid an
annual salary, but excepts “the payment of costs in a civil case or eminent domain pmceeding by the
state.”

Attorney General Opinion MW447A pointed out that “[t]he state is liable for costs in a case
where costs are properly adjudged against it as the non-prevailing party, and where no statute
exempts it t?om costs,” but also noted that former article 2072, V.T.C.S., now codified as section
6.001 of the Civil Practice and Remedies Code (“Code”),2 provided in pertinent park ‘mo security

‘See Act of February 25,1959,56th Leg., R.S., ch. 23,s 1,1959 Tex. Gem. Laws 35,36 (former art. 3912~.
V.T.C.S. (1925)). Act of May 1, 1987,7Oth Leg., R.S., ch. 149.5 1, 1987 Tex. Gm. Laws 707,934, 1307 (repeal of
art. 3912e. V.T.C.S. and adoption of Local Gov’t code 5 154.004 as part of nons&statttive revision of statutes relating
to local government).

=See Act of May 17,1985,69tb Leg., RS., ch. 959, $5 1.9, 1985 Tex. Gett. Laws 3242,3244-45,3322 (repeal
(continued...)
The Honorable Eugene D. Taylor - Page 2 (DM-459)

for costs shall be required of the State or of any incorporated city or town . , . in any action, suit, or
pmce&Ig. . . .“’ The opinion continued by stating that “[fliling fees are merely ‘security for costs,
so that advance payment of such may not be required.” See Rodeheaver v. Afridge, 601
S.W.2d 51, 54 (Tex. Civ. App.--Houston [Ist Dist.] 1980, writ refd n.r.e.). Attorney General
Opinion MW447A concluded that “the state is not required to pay filing fees for the filing of a case,
pay fees for service of citation or give any other Security for costs, including any appellate costs,
although the state will ultimately be liable for costs should it be the losing party.”

Since Attorney General Opinion MW-447A was issued in 1982, it has not been overruled
by a court or an opinion of this office, and it has been cited in subsequent opinions.4 The statute that
it construed, former article 2072, V.T.C.S. (1925), was repealed and its substance was incorporated
in section 6.001 of the Code, in a nonsubstantive revision of the statutes relating to civil procedure
and civil remedies and liabilities.’ The revision was undertaken for the purposes of “eliminating
repealed, invalid, duplicative, and other ineffective provisions, and improving the draftmanship of
the law . . . without altering the sense, meaning, or effect of the law.‘*

The subject’matter of three other exemptions from court costs was also incorporated into
section 6.001 of the Code. These provisions, former articles 2794’ 2072a,’ and 22769 V.T.C.S.
(1925), overlapped in subject matter with one another and with former article 2072. Former article
279a, V.T.C.S., provided in part that “[n]either the State of Texas, nor any county, nor any state
department, nor the head of any state department,. . . shall be required to give any bond incident to
any suit filed by any such agency, official, and/or entity,for costs ofcourt or for any appeal or writ
of error. _. “r” Former article 2072a, V.T.C.S., exempted the banking commissioner and the State
Banking Board from giving any “cost bond” in trial courts or on appeal or any supersedeas bond on
appeal or writ of error. Former article 2276, V.T.C.S., exempted the State of Texas, its departments

of art. 2072, V.T.C.S. (1925), adopting Civ. Prac. &Rem Code $6.001 and repealing art. 2072, V.T.C.S. as part of
nonsubstantive revision of statutes relating to civil procedure and civil remedies and liabilities).

‘V.T.C.S. art. 2072 (West 1984); sac Act ofApril IS, 1909,3lst Leg., 1st C.S., ch. 14,s I,1909 Tex. Gen.
Laws 284,284.

‘See Attorney General Opinions DM-360 (1995), DM-250 (1993), DM-26 (1991).

‘See Act of May 17, 1985,69th Leg., R.S., ch. 959, $5 1,9,1985 Tex. Gen. Laws 3242,3244-45,3322.

6Forewrd to Proposed Code, Civ. Prac. & Rem. Code at IX (Vemons 1986).

‘Act of April 26,1957,55th Leg., R.S., ch 213,s I,1957 Tex. Gen. Laws 439.

‘Act of March 25,1927,4Otb Leg., R.S., ch. 135,s 1.1927 Tex. Gen. Laws 203,203.

‘Act of May 9, 1935,44th Leg., R.S., ch. 283, $ 1, 1935 Tex. Gen. Laws 670,670.

“Act of April 26, 1957, see supra note 7.

p. 2569
The Honorable Eugene D. Taylor - Page 3 (DM-459)

and heads of departments, and various federal entities from giving “any bond . . . for costs of Court
or for any appeal or writ of error. . . nor any surety for the issuance of any bond for the taking out
of writs of attachment, sequestration, distress warrants, or writs of garnishment in any civil case.”
In these three exemptions, the legislature used the term %ond” instead of %eeurity” to describe the
exemption from advance payment of filing fees and other court costs. In the context of these and
similar exemptions, the term “bond” for court costs is synonymous with “security” for court wsts.”

The recodification combined the four cost exemption statutes into one, and chose the term
“bond” for court costs to describe the exemption. Section 6.001 of the Code provides in part:

(a) A governmental entity or officer listed in~Subsection (b) may not be
required to file a bondfir court costs incident to a suit tiled by the entity or
officer or for an appeal or writ of error taken out by the entity or officer and
is not required to give a surety for the issuance of a bond to take out a writ
of attachment, writ of sequestration, distress warrant, or writ of garnishment
in a civil suit.

(b) The following are exempt from the bond requirements:

(1) this state;

(2) a department of this state;

(3) the head of a department of this state;

(4) a county of this state;

. . . . 12

The repeal of article 2072, V.T.C.S. (1925), and the reenactment of its substance in section
6.001 of the Code did not change the meaning of article 2072, nor did it change the conclusion of
Attorney General Opinion MW47A (1982). We reaffirm Attorney General Opinion MW-447A.
Section 6.001 of the Civil Practice and Remedies Code exempts the state from paying security for
court costs, including filing fees and fees for service of process.

“See City ofAthens v. Evans, 63 S.W.2d 379,382 (Tex. Comm’n App. 1933, jttdgm’t adopted) (stt. 2072,
V.T.C.S. (1925) refers not only to bonds as security for costs in trial courts, but also to bonds as security for costs of
sn appeal); Montoya v. McManus, 362 P.2d 771,777 (NM. 1961) (“bond” for payment of costs that may be adjudged
against parry in election contest is syncnlymo”s with “Security”).

“Civ. Prac. & Rem. Code 5 6.001 (emphasis added). Section 6.001(c) provides thst a county or district
attorney is not exempt from filing s bond to take out an extrsonGtsty wit unless approved by the commissioners court
in an action in behalf of the county or the attorney general in an action brought in behalf of the state.

p. 2570
The Honorable Eugene D. Taylor - Page 4 (DM-459)

We further point out that section 6.001 of the Civil Practice and Remedies Code only
exempts the state from advance payment of filing fees and other court costs but does not exempt it
from ultimately paying such wsts. In the absence of a provision exempting the state from liability
for costs in a particular type of case, such as section 154.004 of the Local Government Code, the
state, like other parties, is liable for its costs. ” When the state prevails in a suit it may recover all
costs from the losing party,“’but in the event the state cannot recover its costs from the losing party,
the state will have primary liability to pay them. See Rodeheaver, 601 S.W.2d at 54; Roby v.
Hawthorne, 84 S.W.2d 1108, 1109 (Tex. Civ. App.--Dallas 1935, writ dism’d).

SUMMARY

Section 6.001 of the Civil Practice and Remedies Code exempts the state
from paying security for court costs, such as tiling fees and fees for service
of process. Attorney General Opinion MW-447-A (1982) is reaffirmed.

Section 6.001 exempts the state only from advance payment of filing fees
and other court costs and does not exempt it from ultimately paying such
costs. In the absence of a provision exempting the state from liability for
costs in a particular type of case, the state is liable for its costs. When the
state prevails in a suit it may recover all costs t?om the losing party, but if it
cannot recover its costs from the losing party, the state will have primary
liability to pay them.

DAN MORALES
Attorney GeneraJ of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

“Tex. R. Civ. P. 125-27.

“Id. 131.

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