Untitled Texas Attorney General Opinion

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