dissenting.
It has always been the accepted general rule that the trial court clerk does not proceed to file a pleading until the filing fee is paid. The Supreme Court did create an exception when the time of filing was critical to preserving a party’s ability to pursue an appeal. This line of eases is easily distinguished in that the exception created relates to the preservation of the right of appeal.1 The motion in our case does not impact the perfection of the right to an appeal for having the merits of the case reviewed, so the exception to the general rule created by the line of cases cited by the relator and the majority should not be applied to this case. As stated by the Texas Supreme Court in the last pronouncement of the policy for this line of cases, “We construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality.” Garza, 137 S.W.3d at 38. But the issue before us is entirely a rule of procedure, and the rules should be enforced — otherwise, chaos reigns.
There is one case in this line of cases with a secondary holding that is, however, applicable to our case. In Garza, the Texas Supreme Court notes that there are two effects of filing the motion. First, it sets the appellate time table. The holding on this issue is that the filing of the motion for new trial, even without the payment of the filing fee, extended the time within which a notice of appeal could be filed. The second holding was that the failure to timely pay the filing fee before the court lost its plenary power meant that the motion for new trial did not preserve the appellant’s factual insufficiency complaint for review, because that issue was never properly made to the trial court. Garza, 137 S.W.3d at 38.
In our case, the real-party-in-interest filed its motion to transfer the case to a district court prior to the time the fee was paid on the relator’s motion to transfer the case to a probate court. Thus, by the time the fee was paid for relator’s motion, the trial court had lost the authority to do anything other than to grant the real-party-in-interest’s motion. In effect, applying the second holding in Garza, the relator failed to preserve his right to have the case transferred to a probate court because, by the time the relator paid the filing fee, the real-party-in-interest had already filed a motion to transfer the case to a district court which the trial court had no option but to grant. Thus, by the time the relator paid the fee, the tidal court had no authority to transfer the case to a probate court.
Relator did not pay the filing fee when the motion to transfer was first presented for filing. The natural result of this failure under the general rule is that the clerk did not file the motion. Before relator paid the filing fee and tendered the motion *620to transfer the case2 to a probate judge, a motion to transfer the case to a district judge was filed. See Tex. Pkob.Code Ann. § 5(b)(1) & (2) (Vernon Supp.2005). The appropriate fee was paid when the motion to transfer the case to a district judge was tendered for filing. The county judge did what any reasonable, analytical, rules-oriented person would have done — he granted the first properly filed motion to transfer the case. Indeed, it could be viewed as what we are determining is whether the district clerk should be compelled to give relator’s motion a filing date prior to the date that it was actually filed.
At this Court, our clerk files everything tendered for filing and tries to collect the fees later if they are not paid at the time of filing. This is a matter of convenience because we do not have a way to keep track of pleadings that remain unfiled because the filing fee has not been paid. Our system has created its own set of problems. Just a few of those problems are (1) the clerk must act as a collection agent for our Court, (2) there is different treatment by justices if the fee remains unpaid,3 and (3) the need to write off uncollected filing fees.
I would not impose the system that we have chosen to use on all the trial court clerks. And I would not expand the exception to the rule which is applicable to documents which impact the timing of perfecting an appeal. By this holding, the exception, at least as to the date of filing, has now swallowed the rule.
Conclusion
I do not find that the trial court abused its discretion. I would deny the petition for writ of mandamus.
. Garza v. Garcia, 137 S.W.3d 36 (Tex.2004); Tate v. E.I. DuPont de Nemours & Co., Inc., 934 S.W.2d 83 (Tex.1996); Jamar v. Patterson, 868 S.W.2d 318 (Tex.1993); Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corporation, 787 S.W.2d 371 (Tex.1990); Standard Fire Insurance Co. v. LaCoke, 585 S.W.2d 678 (Tex.1979); Polley v. Odom, 937 S.W.2d 623 (Tex.App.-Waco 1997, no writ).
. I address only the issue the parties have presented and not the propriety of transferring the entire case, the entire probate proceeding, to the probate judge, rather than the contested portion of the probate case. See Tex. Prob.Code Ann. § 5(b)(1) & (2) (Vernon Supp.2005).
. The real-party-in-interest points out that because the fee had not been paid, the county judge could not have properly considered or granted relator’s motion to transfer at the time the motion to transfer filed by the real-party-in-interest was filed.