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The Attorney General of Texas
February 22. 1982
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. Mw-447
sq%me Coil?! Building Criminal District Attorney
P. 3 Box 12548
Sixth Floor, Records Building Re: Whether state is exempt
:i~tin. TX. ia711. 2548
51:1475.2:c1
Dallas, Texa’s 75202 from filing fees under artic?c
70191 91n,i74-:x7 3912(e), V.T.C.S.
TeieCOEle, 5:2;475-:265
Dear Mr. Wade:
:6C.7 lain ST.. Suite 1400
2: ias. TX 7521!.4709 You have requested our opinion as to whether article 39i?c-,
214!742aa4C V.T.C.S., exempts the state of Texas from paying filing fees in civil
cases filed with district clerks.
2824 Alber!a Ave.. suite 160
Article 3912e provides in pertinent part:
El ?asc. TX. 78405.2793
9151533.3464
Section 1. No district officer shall be paid
by the State of Texas any~ fees or commissions for
12.x csiias Ave.. Sulle 202
any service performed by him;... provided... that
HOUS!O”, TX. 770026986
the provisions of this Section shall not affect
713/65&os6
the payment of costs In civil cases or eminent
domain proceedings by the State....
806 Broadway. Suite 312
Lubbock, TX, 79401.3479 . . . .
8061747.5235
Sec. 19. Provisions of this Section shall
~309 Pd. Tenth. Sule 6 apply to and control in each county... having L
MCAIICP. TX. 78531-1685 population in excess of one hundred and ninety...
‘,l:i6R24547 thousand inhabitants....
200 Main Plaza. Suite 403 ....
San An,onio. TX. 78205.2797
512.225.4191 (j) Each district, county, and precinct
officer who shall be compensated on a salary basis
shall continue to charge for the benefit of the
Officers’ Salary Fund of his office provided for
in this Section, all fees and commissions whfch he
is now or hereafter may be authorized to charge
against and collect from the State of Texas for
services performed by him in civil proceedings....
(Emphasis added).
Honorable Hcnrv Glade - Page 2 (~~-447)
Tn Attorney General Opinion W!&62g (1959). this office observed
that:
Tt is noted that the prohibitions contained
in Sections 1 and 3 of Article 3912e... concerning
the payment of fees or commissions by the State do
not apply to the payment of costs in civil cases
by the State where the fees earned constitute a
part of the cost assessed against the State in a
particular case. Therefore; such cost must be
paid bv the State as provided by law rather. than
as a fee to the individuai officer. (Emphasis
added).
See 2152 hrtcrncy G’eneral Opinions be2l?i (1967); {,".;-65i( (!95?); i..L:-5':;
(1558); C-807 (1939). Compare Attorney General Opinion bi-163 (1567)
(filing fees in criminal cases).
To answer your question, we must determine whether the filing
fees to which you refer constitute “costs” of ci~vll cases within the
meaning of section 1 of article 3912e. If the fees do, the state of
Texas is not exempt from liability for payment of such fees. Attorney
General Opinion w-628 (1959).
Article 3927, V.T.C.S.. provides, in pertinent part, that:
The clerks of the district courts shall
receive the followjng fees for their services:
. . .
For each suit filed, including appeals from
mfrrior courts ........................... 3i3.X
In Phillins v. Wertz, 579 S.W.2d 279 (Tex. Civ. App. - 3s112s
1974, writ ref’d n.r.e.). the court stated as follows:
The general rule in Texas is that expenses
incurred in prosecuting or dofending a suit are
not recoverable as CORCS or damages uniess
recovery for such items in expressly provided ior
bv statute or is recoverable under eauitablc
principles.... [Article 39271 lists the items
that the district clerk shall tax as costs.. ..
(Emphasis added).
The court concluded that because certified copies of deeds are not
among the items enumerated in articles 3927 or 3927b (since repealed),
the costs involved in obtaining such copies could not be taxed ns
Honorable Henry Wade - Page 3 (MW-447)
.I
"Costs" against the appellees in that case. See also Attorney General
Opinion MW-308 (1981) (fee for recording abstract of judgment in
county records not among costs to be taxed on initial filing of
delinquent tax suit).
Unlike the fee involved in the Phillips case, filing fees are
among the items listed in article 3927 which may be taxed as costs.
We believe it follows, therefore, that such fees constitute "costs"
within the meaning of section 1 of article 3912r. The state of Texas
is therefore not exempt from liability for payment of such fees in
civil cases filed with district clerks.
We have r.ot overlooked article 39??a, V.T.C.S., which providzc
that:
[Article 39271 shall not be construed as amending
or repealing any existing law concerning the
exemption of the State of Texas or any political
subdivision of the State of Texas from liability
for costs or deposits therefor.
This statute refers to laws which specifically exempt the state from
liability for payment of certain costs. See, e.g.. V.T.C.S. art. 7297
(state exempt from payment of costs "growing out of" suit to recover
delinquent taxes); see Prop. Tax Code 533.49. Article 3912e is not
such a statute. Itdoes not exempt the state from liability for
payment of "costs in 21~11 cases."
SUMMARY
Article 3912e. V.T.C.S., does not exempt the
state of Texas from having to pay filing fees in
civil cases filed with district clerks.
Very truly yours, n
-MARK WHITE
Attorney General of Texas.
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E; GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
Honorable Henry Wade - Page 4 (Mw-447)
.
APPROVED:
OPINION COMHITTEE
Susan L. Garrison, Chairman
Jon Bible
Robert W. Gauss
Rick Gilpin
Jim Moellinger
D. 1543