Office of t@e!ZIttornep@eneral
Qtate of QLexaS
DAN MORALES
.ATTORSEY
CES’ERAL January lo,1994
Honorable James M. Kuboviak Opinion No. DM-283
Braaos County Attorney
Brazes County Courthouse Re: Whether section 291.007 of the Local
Bryan, Texas 77803 Government Code authorizes a county
commissioners court to set a security fee of
Honorable Mike Driscoll not more than five dollars to be taxed as
Harris County Attorney court costs in each civil case filed in a
1001 Preston, Suite 634 probate court, as well as in a county court,
Houston, Texas 77002-1891 county court at law, and district court and
related questions (RQ-613)
Dear0entie.me.n:
Each of you has asked us to clarify section 291.007 of the Local Government
Code. Section 291.007 provides as follows:
FEE FOR SECURITY. (a) The commissioners court may set a
fee not to exceed $5 to be collected at ‘the time of tiling in each civil
case filed in a county court, county court at law, or district court
which shah be ttied as other costs. The county is not liable for the
COStS.
(b) In any civil case brought by the state or a political
subdivision of the state in a county court, county court at law, or
district court in a county in which the commissioners court has
adopted a fee under Subsection (a) of this section in which the state
or political subdivision is the prevailing party, the amount of that fee
shall be taxed and collected as a cost of court against each
nonprevailing party.
(c) The clerks of the respective courts shah collect the costs
established by Subsections (a) and (b) of this section.
(d) If a commissioners court sets a security fee under
Subsection (a) of this section, the county and district clerks shall
collect a fee of S 1 for tiling any document not subject to the security
fee. The county is not liable for the costs. The county or district
clerk, as appropriate, shall collect this fee.
Honorable James M. Kuboviak - Page 2 (DM-283)
Honorable Mike DriscoU
(e) Costs and fees collected under Subsection (c) or (d) of this
section shall be paid to the county treasurer, or to any other official
who discharges the duties commonly delegated to the county
treasurer, for deposit in the courthouse security fund established by
Article 102.017, Code of Criminal Procedure.
Acts 1993, 73d Leg., ch. 818, $2 (adding Local Gov’t Code 5 291.007). Article
102.017(a), (b) of the Code of CriminaJ Procedure, to which section 291.007(e) of the
Local Government Code refers, requires a county to collect as a cost of court a five dollar
secmity fee from a defendant convicted in a district court for a felony offense and a three
dollar security fee from a defendant convicted in a county court, county court at law, or
district court for a misdemeanor offense. The county clerk is to pay these mandatory fees
to the county treasurer, who must deposit them into a IImd to be known as the courthouse
security fbnd. Code Crini. Proc. art. 102.017(c) (as added by Acts 1993, 73d Leg., ch.
818.3 1); see also Local Gov’t Code 3 291.007(e) (as added by Acts 1993,73d Leg., ch.
818.5 2). The cxxnmissioners court is to administer the courthouse security Cmd, which
istobeused
only to finance the following items when used for the purpose of
providing security services for buildings housing a district or county
wult:
(1) the purchase or repair of X-ray machines and conveying
systems;
(2) handheld metal detectors;
(3) wakthrougb metal detectors;
(4) identification cards and systems;
(5) electronic kr&ing and surveiUance equipment;
(6) bailiffs, deputy sheriffs, deputy constables, or contract
security personnel during times when they are providing appropriate
seulrity senices;
(7) @we;
(8) confiscated weapon inventory and tracking systems; or
(9) locks, chains, or other security hardware.
Acts 1993,73d Leg., ch. 818, $ 1 (adding CodeCrim. Proc. 102.017(c), (d)).
Honorable James M. Kuboviak - Page 3 (DM-283)
Honorable Mike Driscoll
Concerning section 291.007 of the Local Governmen t Code, Mr. DriswU asks five
questions:
1. Can the Commissioners Court set a security fee of not more
than SS to be taxed as court costs in each civil case filed in a county
court, county court at law, district court. and probate court in Harris
county?
2. If the Commissioners Court sets a security fee under
Subsection (a) of Section 291.007 of the Local Government Code, is
the County Clerk required to collect a fee of $1 for filing each and
every document not subject to the security fee?
3. Should the County Clerk collect the said Sl fee in lieu of
other filing fees (such as fees for filing deeds, assumed name
certifkxtes, etc.) prescribed by law or in addition to such other tiling
fee?
4. Should the Cotmty Clerk charge the $1 fee for each motion
or other pleading Sled in the county court and uxmty court at law
after the fllbtg of the original petition at which time the security fee
nottoexceedSSwaspaid?
5. Can the Commissioners Court provide for a security fee of
notmorethanS5tobetsxedascourtcostsineachcivilcasefiledin
a county court, county court at law, district court, and probate court
and authorize the clerks of such courts to fix the amount of the
security fee at an amount not to exceed $5 in any one case?
Mr. Kuboviak asks about the correct interpretation of “any document” in section
291.007(d), which requires a county clerk in a county in which the wmmissioners court
has chosen to assess a security fee “to wllect a fee of Sl for filing any donrmenr not
subject to the security fee.” (Emphasis added.)
The legislature enacted section 291.907 of the Local Government Code, as well as
article 102.107 of the Code of Criminal Procedure, in 1993. Senate Bill 243, and its
wmpanion bii in the House, House Bill 882, were introduced in response to recent
shootings in wmthouses, notably in Tarrant and Dallas counties. See House Comm. on
Comty AfFahq Bill Analysis, S.B. 243, 73d Leg. (1993) (hereinafter Bii Analysis);
Hearings on S.B. 243 Before the Senate Comm. on Intergovernmental Relations, 73d Leg.
1 (Feb. 17,1993) (statement of Senator Leedom, author) (transcript available from Senate
Staff Services). Courthouse violence indicated a need for increased security in the
courthouses to protect both courthouse personnel and members of the public who visit the
Honorable James M. Ruboviak - Page 4 (DM-283)
Honorable Mike Driscoll
wurthouses. See Bill Analysk, srcpro; Hearings on S.B. 243 Before the Senate Comm. on
Intergovernmental Relations, 73d Leg. 1 (Feb. 17, 1993) (statement of Senator Ieedom,
author) (tmnscript available from Senate StaE Services). The legislature recognized,
however, that the installation of a security system in a wurthouse would add to the county
budget expenses for which the county may not have provided. See Bill Analysis, supra.
Consequently,legislatorsproposed to authorize a wmmissioners court to levy a “user fee”
to provide revenues that partially would cover the increased securities costs. See id.;
Hearings on S.B. 243 Before the Senate Comm. on Intergovernmental Relations, 73d Leg.
1 (Feb. 17.1993) (statement of Senator Leedom, author) (transcript available from Senate
Staff Services) (referring to fee as “user fee”); id. (statement of Craig Pardue, representing
Dallas County) (same); Hearings on S.B. 243 Before the House Comm. on County
Affairs, 73d Leg. (statement of Representative Jones, sponsor) (Apr. 21, 1993) (same);
Debate on S.B. 243 on the Ploor of the Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of
Senator Sibley) (transcript available from Senate StatI Services) (same); id. at 6 (statement
of Senator R&lift) (same).
As introduced, Senate Bill 243 and House Bill 882 both proposed to require a
camty wrmnissioners wurt to set a security fee “not to exceed SS [which] shall be
wllected at the time of tilii in each civil case tiled in a wunty or district
court. . . , except in suits for deliiuent taxes.” The bii did not propose to wllect a
secmity fee from defendants in criminal cases; it did not propose to wllect the security fee
in civil cases brought in wtmty courts at law; it did not propose to wllect a Sl fee “for
filing any document not subject to the security fee.” These omissions were discussed
during the biis second reading on the floor of the Senate:
Senator Sibley: Many, many, many more people enter those
courthouses than the ones that file the [civil] lawsuits, so I think [the
burden of paying for increased security costs] is being put on that
group [of people filing civil lawsuits] out of proportion to. . their
use of the wurthouse. .
Senator Harris: Have you, in reading over this bill, have you
noticed how Senator Leedom [the author of the bill] has intentionally
leg out tax cases from paying a part of the fee? So. . we’re
gomta make cases where there’s a mother. . . with children, trying to
get a divorce to protect the children and herself, pay this extra [five]
dollars. . . but yet somebody who’s out there trying to beat the
school districts out of paying their school taxes, we’re not gonna
charge them . a fee for their use of the courthouse .
. .
Honorable James M. Kuboviak - Page 5 (DM-283)
Honorable Mike Driscoll
Did you notice that this bill.. . speci6caUy exempted out
crimindcases?.. . Why shouldn’t the criminal help pay for this
increased security ifit’s necessary?
You think there’d be anything wrong with somebody who goes
up to get their. . . marriage certificate paying a little something on a
fee . . ?
Senator Sibley: If they use the courthouse’ then perhaps they
ought to also. If this is gomta be put as a user fee, . , then I think
anybody who uses the courthouse--maybe they oughta have a
turnstile where you put a quarter in when you go through the metal
detector or something.
Balanced against this wncem that the costs be spread to everyone who uses the
wurthouse. was a legislative wncern, which several members of the House and Senate
voicad, that court costs on civil cases are so high as to prohibit low income people from
bringing a civil action. See Hearings on H.B. 882 Before the House Comm. on County
ASirs, 73d Leg. (Apr. 14,1993) (statement of unknown represenmtive) (tape available
from House Committee Services 05ce) (expressing wncem that costs just to file civil
cam “tremendous,” so that some people no longer can afford to fde); Hearings on S.B.
243 Before the House Comm. on County AGin, 73d Leg. (Apr. 21,1993) (statement of
unknown representative) (tape available from House Committee Services office) (stating
that some divorce cases cost S250 just to file); Debate on S.B. 243 on the Ploor of the
Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of Senator Sibley) (transcript available
from Senate Staff Services) (stating that many people who file lawsuits cannot afford
additional fee); id. at 3 (statement of Senator Luna) (stating that people who will have to
pay fee will be poor). But see id. (statement of Senator Leedom) (stating that rule 145 of
Texas Rules of Civil Procedure, which authorizes person who is unable to atford costs of
tiling original action may file athdavit to that effect, would apply to security fee proposed
in S.B. 243).
During the bill’s third reading on the floor of the Senate, Senator Leedom
introduced a floor substitute that, he believed, dealt with the legislators’ wncems,
particularly those concerns that more people should be subject to the security fee. Debate
on S.B. 243 on the Floor of the Senate, 73d Leg. 1 (Apr. 15, 1993) (transcript available
from Senate StaE Services). The floor substitute proposed exacting a five dollar fee from
a convicted defendant in a felony case and a three dollar fee from a convicted defendant in
a misdemeanor case. Id. In a tinther effort to spread the fee to all people wming in to the
wmthouse, the floor substitute proposed levying a one dollar fee on “all those that come
in the wurthouse [to] file papers.” Id.
Honorable James M. Kubotiak - Page 6 (DM-283).
Honorable Mike Driscoll
In light of this legislative history, we turn now to ~your specitic questions. Mr.
Driswll first asks whether, in Harris County, the clerk must wUect a security fee
(assuming the wmmissioners court has assessed such a fee pursuant to section 291.007(a)
of the Local Government Code) on civil cases filed in the probate court, as well as in the
county court, the county court at law, and the district wurt. Usually, of course, a county
court has the general jurisdiction of a probate court. Tex. Const. art. V, 5 16; Prob. Code
5 4. A district court generally has jurisdiction over executors, administrators, guardians,
and wards. Tex. Const. art. V, 5 8; Prob. Code 5 S(a). However, the legislature has
provided certain counties with either a statutory probate wurt, county court at law, or
another statutory court exercising the jurisdiction of a probate court. See generally Gov’t
Code ch. 25, subch. C. Harris County has four statutory probate wurts. Gov’t Code
3 25.1031; see id. Q 25.1034 (providing for Harris County probate wurts).
Whether a clerk may collect a security fee on a probate case filed in a statutory
probate court or another statutory wurt exercising the jurisdiction of a probate wurt will
depend on the resolution of two issues: tirst, whether a probate case is a “civil case” for
purposes of section 291.007 of the Local Government Code; and second, whether we
should interpret the list of clerks of wurt authorized to wllect the security fee to include
clerks of statutory probate courts. In regard to the first issue, we note that Craig Pardue,
qresenting Dallas County, testified before. the Senate Committee on JntergovemtnentaJ
Relations, that the Dallas District Attorney’s office had dratIed the language of Senate Bii
243, as introduced, “to track the law library fee that the wmmissioners currendy assess.”
Hearings on S.B. 243 Before the Senate Comm. on Intergovemmental Relations, 73d Leg.
2 (Feb. 17,1993) (banscript available from Senate Staff Services). Section 323.023(a) of
theL.ocdGov emment Code requires a wmtnissioners wurt to set a stun “not to exceed
S20 [to] be taxed. wllected, and paid as other costs in each civil case filed in a county or
district court, except suits for delinquent taxes.”
In Attorney General Opiion H-725 (1975) this office considered whether “civil
cases” in former V.T.C.S. article 1702i (1925),t a statute worded substantially identically
to section 323.023(a) of the Government Code, included probate matters. Article 1702i
authorized a clerk of a county or district court to wllect, as costs in each civil case, a fee
not to exceed five dollars (the specific amount to be determined by the wmtnissioners
court) for the purpose of establishing county law libraries. The opinion began analyxing
the question by noting that section 12(a) of the Probate Code provides that, unless
otherwise specitied in the Probate Code, “[t]he provisions of law regulating costs in
*Article1702i, V.T.C.S.,providedfor countylaw 11%raries in coontieswith a pcpdationof
3S0,OOO or fewer. Acts 1953,S3dLeg.,ch. 416, at 1014. The legislahuerepealedarticle1702iin 1977
by theenactment of a bill thatalsoameodedformerarticle!702h,V.T.C.S.(1925).a statutepmvidingfor
law libmic.sin all coonties. Acts 1977,6&hLeg.,ch. 131, 8 2, a1271 (wdbied in partas LocalGov’t
Cc+ 0 323.023(a)).
Honorable James M. Kuboviak - Page 7 @M-283)
Honorable Mike DriswU
ordinary civil cases sbaU apply to all matters in probate.” Finding nothing in the Probate
Code that covered costs for wunty law libraries, the opinion stated that article 1701i
therefore would apply to probate proceedings unkss the Texas courts have held
OtherwiSe.
Quoting Hogan v. Turlmd. 428 S.W.Zd 316 (Tex. 1%8), the opinion defined a
“civil case,” as opposed to a “criminal case,” as one that “‘is not brought by nor in the
name of the state.‘” Attorney General Gpinion H-725 at 2. Buf see Attorney General
Gpiion V-292 (1947) at 2 (defining “civil case” as suit to redress violation of contract, or
to repair injury to property, person, or personal rights). Accordingly, the opinion
concluded that the county law library fee is taxable as costs in all probate procee&ngs
unless the action is brought in the name of the state. Attorney General Gpiion H-725 at
2. Based on the reasoning and conclusion of Attorney General Opinion H-725, we
conclude that, for purposes of section 291.007(a) of the Local Government Code, “civil
case” includes a probate matter. See also Attorney General Opinions DM-109 (1992) at
7-8 (stating that uncontested probate proceeding is “case” within article V, section 11 of
Texas Constitution) (quoting Attorney General Opinion V-79 (1947) at 3); JM-448
(1986) at 2-3 (wnciudii that “civil suit” as used in V.T.C.S. article 163Od, section 3(a)
includes “those suits in which a probate court has jurisdiction”). Bui see homey Gewral
Gpiion V-292 (wnchuJing that application filed in probate court for delayed bii
calificate is not “civil case” within meaning of V.T.C.S. art. 1702a-1).
Notmally, therefore, any county wurt, wunty court at law, or district wurt with
jurisdiction over a probate matter must charge a sayrity fee on any probate case filed in
the court (Ssmning the wInmissioners wurt in that county has imposed the sect&y fee).
In our opinion, the legislature. did not intend to ditkentiate between a probate case tiled
in county court, wunty court at law, or district wurt and a probate case tiled in a
statutory probate court or another statutory court exercising the jurisdiction of a probate
wurt2 See Gov’t Code 49 25.0003(e) (describing “statutory probate court” as “county
court created by statute with probate jurisdiction”), 25.0026 (providing probate wurt with
powers and duties), 25.00265 (providing for statutory probate court seal). Consequently,
we interpret section 291.007 of the Local Government Code to require a clerk, in a county
in which the wmmissioners wurt has assessed a security fee, to wllect a security fee on
all probate cases, regardless of the particular court in which the case is filed.
21nwnnast, the legislatoredeliberately
ditTerentiatod
behveendocunxntsfiled in justicecc&s
anddoarmmufilcdinothercounty~byexcludingjustiaanutsfromthelistof~~~to
wllect thesecurityfee. See CodeGrim. Pnx. art. 102.107(a),@) (as added by Acts 1993,73dLeg.,ch.
818, p 1); Debateon S.B. 243 on the Floorof. the House,73d Leg. (May 22, 1993) (statementof
RcpreswtativeHeflin)(tapeavailablefromHouseCommitteeServicesOftice)(askingHousesponsor
RepresentativeJonesabootfactthatbill doesnotproposeto levysecmityfee on defendantsfoundguiltyof
mizdmawr injndce coml).
. .^_
Honorable James M. Kuboviak - Page 8 (DM-283)
Honorable Mike Driscoll
Mr. Driscoll’s sewnd, third, and fourth questions, and Mr. Kuboviak’s question all
wncun the one dollar fee that a wunty or district clerk must wllect, ifthe wmmissioners
court in the wunty has set a security fee, for the “filing of any document not subject to the
security fee.” Key to the resolution of most of these questions is the proper interpretation
of the phrase. “any document not subject to the security fee.” From the legislative history
summarized above, we know that, as originally introduced, Senate BiU 243 proposed to
w&act the security fee only “at the time of filing in each civil case filed in a wunty or
district court.” Thus, the fee would be wllected only fram persons filing civil actions and
only upon the filing of the initial pleading in the action. Because of the concerns of certain
legislators, however, the originaJ bill was amended to levy the fee on a broader class of
people: speci6caUy, as Senator Leedom said during the third reading of the bill, “all those
who come in the wurthouse to file papers.” Debate on S.B. 243 on the Floor of the
Senate, 73d Leg. 1 (Apr. 15, 1993) (statement of Senator Leedom, author) (transcript
available 6om Senate Staff Services). Balanced against this, however, is the wncem of
other legislators about the high cost of bringing a civil action.
In light of these wncems, we believe the legislature intended to limit the phrase
“any document not subject to the security fee” to in&de only those documents that are
noSrdatedtoapreviouslyfiledcivilcase(orthatdonot~~etoacriminalaction,~e
&tin). We do not believe that the legislature intended, in proposing the one dollar
searity fee, to guther raise the cost of civil lawsuits by adding a one dollar security fee to
the costof t&g each individual document f&d a&r the initial pleading in a civil case.
The five dollar security fee that is due upon the filing of a civil action is a one-time fee that
covers the entire action.3 All documents that are not fded in wmtection with an existing
civil case are subject to the one dollar security fee (unless another statute specificaUy
exempts a particular document from a fee such as a security fee). Of course, the newly
enacted article 102.017 of the Code of Criminal Procedure applies to documents filed in
wmtection with a felony offense in a district court or a misdemeanor offense in a wunty
court, wmty court at law, or district wurt.
We conclude, therefore, that the “fee of Sl for filing any document not subject to
the security fee,” Local Gov’t Code 8 291.007(d), applies to all documents tiled pursuant
to alI filing statutes, except statutes like section 12.003 of the Election Code, which
expressly prohibits charging fees for voter registration not expressly authorized by statute.
See also Elec. Code 5 1.002(b). Thus, as Mr. Kuboviak suggests, a county or district
‘ITtheslatutcorapoliticalsuWivisionofthestatcfilesadviladionina~courfcounty
courlatlaw,ordistrictewn,thesearrityfaisnotdueattbttimcoffiling;rather,pursuanttoscction
291.007(b)oftk LocalGwanmmt Cod+thes+curityfeeistoktaxedandwllectedascostsagainsttbc
nonprevailingparty,i.e., at thewnclusionof thetrial.
Honorable James M. Kuboviak - Page 9 (DM-283)
Honorable Mike JZhiscoll
clerk must charge the one dollar security fee on leases, wills, marriage licenses,4 and
deeds. However, Mr. Kuboviak explicitly excludes 6om the list of documents subject to
the one dollar wcurity fee birth cettiticates, death certificates, and military discharge
Papers-
We understand that Mr. Kuboviak bases the exemption for bii certificates and
death certificates on Health and Safety Code sections 191.0045(d) and 191.032. Section
191.032(a) of the Health and Safety Code requires the state registrar to “arrange, bind,
and permanently preserve birth, death, and fetal death certiticates in a systematic maturer.”
Section 191.0045(d) requires a local registrar who issues a certified wpy of a death
certiftcate to charge the same fee that the state bureau of vital statistics charges for issuing
a certified wpy of a death certiiicate pursuant to section 191.0045(a)(2). Sections
118.011(a)(4) and 118.015 of the Local Government Code require a county clerk to
wllect for issuing a certified wpy of a biih certificate or death certificate a fee in the
same amount as the state registrar of vital statistics and the local registrar of births and
deaths wllect pursuant to section 191.0045 of the Health and Safety Code.
Sections 191.0045 and 191.032 of the Health and Safety Code and sections
118.011(a)(4) and 118.014 0ftheLocal Government Code pertain only to fees for making
wrtitkd copies of bii certificates and death certigcates. These provisions are not
relevant to fees that a county clerk may charge upon the tiling and recording of a bii
ceatificate or death certificate. We fbtd no statute expressly exempting bii and death
certificates 6om a fee such as a security fee. Fmthermore, we believe that sections
118.01 l(b)(2) and 118.0216 of the Local Government Code authorize a county clerk to
setandwUectarewrds management and preservation fee of no more than five dollars
from a person fUing a birth certificate or a death certificate. .See Letter Opinion No. 92-77
(1992) at 2 (c&xming in statement that wunty clerk should impose on all documents
fited in wunty clerk’s office records management and preservation fee). L&wise, in our
opinion, section 291.007(d) authorizes the clerk to wllect a fee of one dollar for security
costs upon the filing of a birth certificate or a death certificate.
Section 192.002(b) of the Local Government Code explicitly prohibits a wunty
clerk from charging a fee for the “recording and keeping of a military discharge record.”
Section 192.002 does not explicitly prohibit, however, a clerk from wlkcting a fee such
‘We believe that Mr. Kubovisk’sassertion that a clerk may collect a fee pursmnt to section
291.007(d)of the LmalGovemmw Cedeupon the tiling of a marriagelicense is correctand wnsistent
with the kgislature’stntent. See suprcrpp. 4-S (quotingdiscussionbehveen SenatorsSibley and Harris
duringsecondreadingof S.B.243 on floorof Senate).We notethatsections118.011(7)and 118.018of
the Lecai GevemmentCede imposea S2S.w fee “for issuinga msniage license,”which “includesevery
service relating to issuaaa of the license.” The statnte does net, hewever, expressly prohibit the
collecttonof a fee such as that sectton 291.Mn(d)of the L.oA Governmmt Cede autherizesupon the
filing of a marriageliwue.
Honorable James M. Kuboviak - Page 10 (DM-283)
Honorable Mike Driswll
as the fee section 291.007(d) of the Local Govermnent Code authorizes. Accordingly, we
conclude that, pursuant to section 291.007(d) of the Local Government Code, a county
clerk may charge a one dollar fee upon the filing of a military discharge record.
Legislators’ wmments about the mounting costs of tiling a civil case suggest that
the legisIature intended the security fee to be cumulative of other filing fees. Additionally,
revenue from the security fees are earmarked for very specific expenses that counties must
pay. Other statutory fees are similatly designated to pay specific county expenses. For
example, pursuant to section 323.023(a) of the Local Government Code, a clerk of a
county or district court must wllect a fee, the amount of which the wmmissioners court is
to set but which is not to exceed twenty dollars, as a cost of court in each civil action,
except a suit for delinquent taxes. A clerk is to submit revenues from this fee to the
wunty treasurer, who is to deposit them into the county law library fund. Local Gov’t
Code $323.023(b). The county may use the county law library find “only for the purpose
of establishing the law libraty . . or for the purpose of purchasing or leasing library
materials, maintaining the library, or acquiring iinniture, shelving, or equipment for the
library.” Id. Additionally, pursuant to sections 118.011(b)(2) and 118.052(3)(F) (as
added by Acts 1993,73d Leg., ch. 675, 8 1, at 2509, 2510), a county clerk may (in the
case of non-court documents) or must (m the case of documents filed in connection with
civil or probate actions) charge a records management and pmservau‘on fee. Revenues
from this fee are. to be used “only for records management and preservation purposes in
the comty” or for “specitic records p reservation and automation projects.” See Local
Gov’t Code 85 118.0216, 1180546(d) (as added by Acts 1993,73d Leg.. ch. 675, $j2, at
2509,2510), 118.0645(d)(asadded by Acts 1993,73dLeg., ch. 675, § 3. at 2509,251O).
If a ckrk wllected the security fee in lieu of other statutory filing fees, such as the law
bi fee or the records management and preservation fee, then those other timds Would
receive no, or very little, new revenues, We do not believe the. legislature intended such a
result.
Thus, we believe that the five dollar security fee is cumulative of other filing fees
that clerks wkct as costs of wurt. For the same reasons, we believe that the one dollar
security fee levied on a document not subject to the five dollar security fee is cumulative
of any other fees that a clerk wllects upon the filing of the document. Accordingly, in
response to Mr. Driscoll’s third question, we conclude that a county clerk must wllect the
one dollar fee in addition to other filing fees prescribed by law.
Fiiiy, Mr. DriscoU asks whether a commissionem court may, without designating
a specific amount, require the clerks of the various listed wurts to wllect a security fee of
not more than five dollars, thereby delegating to the clerks of such courts the authority to
determine the amount of the fee so long as the fee is not more than five dollars in any one
case. We believe the commissioners court must set the exact amount of the security fee if
it decides to assess such a fee. During the second reading of Senate Bill 243 on the floor
Honorable James M. Ruboviak - Page 11 (DM-283)
Honorable Mike DriscoU
of the Senate, Senator Leedom emphasii that the bill was permissive in that the bii
authorized, but did not require, a commissioners wurt to assess a security fee of not more
than five dollars. Debate on S.B. 243 on the Floor of the Senate, 73d Leg. 5 (Mar. 17,
1993) (statement of Senator Leedom, author) (transcript available from Senate Staff
Services). Senator Leedom tiuther stated, however, that “the wmmissioners court
[would] have to set [the security fee].”
SUMMARY
Pursuant to section 291.007 of the Local Gov emmeat Code, a
commissioners court may set a security fee not to exceed five doUars,
which the clerk must collect at the time of filing in each civil case
filed in a county court, wunty court at law, and district court, as well
as in a statutory probate court or another statutory court exercising
the jurisdiction of a probate court. If the commissioners court sets
such a security fee, the clerk also must wllect a security fee of one
dollar for filing each document that is not related to an existing civil
case or criminal case (so long as no other statute specifically exempts
the document from the imposition of a fee such as the fee section
291.007 of the Local Government Code authorixes a clerk to
wllect). Of wurse, article 102.017 of the Code of Criminal
Procedure applies to documents filed in wnnection with crimmal
cases in a county wurt, wunty court-at-law, or district wurt. The
security fee is cumulative of other filing fees. Finally, under section
291.007. the wmmissioners court may choose whether to impose a
security fee, but if it chooses to do so, it must set the fee in an
amount not to exceed five dollars. The wmmissioners court may not
delegate to the clerks of court the responsibility of setting the amount
of the fee.
DAN MORALES
Attorney General of Texas
Honorable James M. Kuboviak - Page 12 (De-283)
Honorable Mike Driscoll
JORGE VEGA
First Assistant Attorney General
WILL PRYOR
Special Counsel
RENEA HICKS
State Solicitor
MADELElNE B. JOHNSON
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
p. 1494
Untitled Texas Attorney General Opinion
Combined Opinion