THE ATTORNEY GENERAL
OF TEXAS
The Honorable Joe Resweber Opinion No. H-43
County Attorney
Harris County Courthouse Re: Is the County Clerk
Houston, Texas 77002 authorized to collect
fees for filing papers
for discovery proceed-
ings in aid of enforce-
ment of a final judgment
pursuant to Rule 621a of
the Texas Rules of Civil
Dear Mr. Resweber: Procedures?
Your letter requesting our opinion asks whether the County Clerk
is authorized to collect fees for filing papers for discovery proceedings
in aid of the enforcement.of a final judgment pursuant to Rule 621a of
the Texas Rules of Civil Procedure.
Rules 62la, effective only January 1, 1971, authorizes the holder
of a judgment to maintain discovery proceedings in the court in the same
suit in which the judgment was rendered for the purpose of obtaining
information to aid in the enforcement of the judgment. Nothing is said
about fees.
However, in 1967 the Legislature adopted Article 3930 (b) Vernon’s
Texas Civil Statutes (Acts 1967, 60th Leg., p. 1785, Ch. 680). The
statute, in appropriate paragraphs A, B, C, D, E and F, covers six differ-
ent situations in which fees are collectible.
We are concerned with paragraphs A and C.
Paragraph A, generally having to do with fees for county civilcourt
dockets, by its terms, applies to proceedings “while the docket is still
open:”
p. 173
The Honorable Joe Resweber, page 2 (H-43)
“For each cause or action, or docket in
County Civil Courts; for filing, or filing and
registering. or filing and recording, and for
docketing and including taxing costs for each
and all applications, complaints, petitions,
returns, documents, papers, legal instruments,
records and/or oroceedings; for issuing, includ-
ing the recording of the return thereon, each and
all citations, notices, subpoenas, commissions
to take depositions, executions while the docket
is still open, garnishments before judgments,
orders, writs, processes, or any and all other
instruments, documents or papers authorized,
permitted or required to be issued by said county
clerk or said clerk of county courts on which a
return must be recorded; for all attendance6
which a return must be recorded; for all attend-
antes in court as clerk of court; for impaneling
a jury; for swearing witnesses; for approving
bonds involved in court actions, for administering
oaths; and for all other clerical duties in connection
with such county civil court docket: . . . ”
It requires a fee of $10.00 in most suits “which fee is to be paid
but one time in each cause or docket, or suit, and which fee excludes the
items listed in Paragraph B, C, D and E of this Section 1: . . . . ”
Paragraph B provides for fees for probate court dockets. Para-
graph C is as follows:
“Where no cause is pending, as is contem-
plated in Section 1, Paragraphs A and B hereof,
the clerk shall charge as follows for the hereinafter
listed services, for issuing (including recording of
the returns thereon), each citation, notice, commis-
sion to take depositions, execution, order, writ,
process, or any other instrument, document, or
paper authorized, permitted or required to be issued
by said county clerk or said clerk of county courts
on which a return must be recorded:
p. 174
The Honorable Joe Rerweber, page 3 (H-.43)
“(i) For irsuing each such instrument,
document, or paper, including the original and
one copy and the recording of the return, a fee,
to be paid at the time each order is placed, of
. . . $3.00. . . .”
Paragraph D has to do with issuing certificates, certified copies,
etc. Paragraph E applies to Letters Testamentary, Letters of Guardianship
and similar instruments. Subparagraph F applies to the filing and keeping
of wills held for safekeeping.
As we construe Article 3930(b), if at the time the provisions of Rule
621a are invoked the original cause of action is still pending upon the docket
of the court, the successful party may file or require the issuance of what-
ever papers are necessary under Rule 621a without incurring liability for
any additional fee. On the other hand, if there is no cause pending and the
proceeding must be brought under Paragraph C, then the Clerk is entitled
to a charge of $3.00 for issuing each instrument, document, or paper, but
not for merely filing the same. If, a’s may be true in discovery proceedings
under the amended rules, the Clerk is not called upon to issue any instru-
ments, we see no authority for him to charge a fee.
It is our construction of Articles 3930 and 3930A-1 that they apply
only to the non-court aspects of the functions of the County Clerk’s office
and that eubsection (9) of Article 3930 does not authorize the Clerk to set
a fee for filing instruments in court proceedings.
SUMMARY
Article 393013, Vernon’s Texas Civil Statutes,
governs fees to be charged in a proceeding brought
under Rule 621a of the Texas Rules of Civil Procedure.
If the action is still pending upon the docket of the
court at the time such proceedings are instituted, they
fall within the one time filing fee and no additional fee
is to be charged. If no action is pending at the time
those proceedings are instituted, the County Clerk
p. 175
. 1
The Honorable Joe Resweber, page 4 (H-43)
is entitled to a fee of $3.00 for each instrument
he issues, but is not entitled to charge a fee for
the mere filing of instruments prepared by otherr.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
APPRgVED:
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DAVID M. KENDALL, Chairman
Opinion Committee
p. 176