dissenting.
I dissent. Section 31 of the Omnibus Fee Bill (House Bill 1593, 69th Leg., 1985) increased the district court filing fee from $25 to $75. Section 32 of that same bill allows the district clerk to retain $35 and requires the clerk to send the remainder to the comptroller for deposit in the general revenue fund. Sections 31 and 32 do not violate the Texas Constitution’s open courts provision, Article I, § 13, nor do they violate the constitution’s caption requirement, Article III, § 35.
Open Courts Provision
In holding the act’s sections unconstitutional, the court places great emphasis on the alleged violation of the open courts provision. The court states that this provision grants litigants a substantial right— “the right to their day in court” — and that the increased filing amounts to “a general revenue tax on the right to litigate.” For these reasons, the court holds that Sections 31 and 32 violate our Texas Constitution’s open courts provision.
The open courts provision is essentially a due process guarantee. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The requirements of procedural due process apply only to the threatened deprivation of liberty and property interests deserving the protection of the federal and state constitutions. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex.1982). Therefore, any assessment of proper procedural safeguards necessarily begins with a consideration of whether the particular interest at stake is a protectable interest.
A constitutionally protected right must be a vested right or something more than a mere expectancy based upon an anticipated continuance of an existing law. City of Dallas v. Trammel, 129 Tex. 150, 101 S.W.2d 1009 (1937). Here, Hanlon clearly did not have a vested interest or right in a $25 district court filing fee. Hanlon argues, however, that he has a vested right to sue in the Texas courts. The critical issue is whether this right has been unreasonably restricted by the act. I submit that Hanlon’s right to sue has not been unreasonably abridged. Hanlon could file suit this very day; all he has to do is pay the $75 filing fee or file as a pauper under Tex.R.Civ.P. 145. Thus, the Texas courts are “open” to litigants such as Hanlon. No explanation is given by the court for how the act actually prevents litigants from exercising their right to bring suit.
This court has frequently held that certain types of procedural requirements are not subject to open courts and other due process attacks. In Clanton v. Clark, 639 S.W.2d 929 (Tex.1982) the court held that a trial court’s dismissal of a cause of action for failing to timely post a bond did not violate the dismissed party’s due process rights under either the United States or Texas Constitutions. In Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932) this court held that when a corporation failed to pay its license or franchise taxes, the Legislature could “deny a corporation the right to sue or defend in our courts in any cause of action even though the same arose while the corporation was lawfully transacting its business within the state.” Id. at 60. This denial of the corporation’s right to sue does not violate the Texas open courts provision. We have noted that “no one has a vested interest in the rules, themselves, of the common law; and it is within the power of the Legislature to change them or entirely *344repeal them.” Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 559 (1916), aff'd, 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919).
Recently, we applied the open courts provision, holding that, as to the particular plaintiffs, specific medical malpractice statutes of limitations were unconstitutional. See Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); Sax, 648 S.W.2d 661. Cf Morrison v. Chan, 699 S.W.2d 205 (Tex.1985). The common thread of this court’s open courts decisions is that the Legislature cannot unreasonably abridge a person’s right to bring a common-law cause of action by making a remedy by due course of law contingent on an impossible condition. Morrison, 699 S.W.2d at 207; Neagle, 685 S.W.2d at 12; Nelson, 678 S.W.2d at 921.
The increase in the filing fee cannot be characterized as an “impossible condition” as in the prior cases applying the open courts provision. A person’s inability to pay the filing fee will not prevent them from filing a cause of action. Texas Rule of Civil Procedure 145 provides that persons who are unable to pay court costs can be excused from payment. Filing fees are a part of court costs. See Rodeheaver v. Alridge, 601 S.W.2d 51 (Tex.Civ.App.— Houston [1st Dist.] 1980, writ ref’d n.r.e.). Thus, Rule 145 assures that persons unable to pay the filing fee will have open access to the courts.
If, as the court implicitly holds, $75 effectively creates an “impossible condition” for some people, then surely the current $25 filing fee is also an “impossible” fee for other people. Regardless of the amount set, there will always be some who cannot afford to pay. In this sense, any fee could be characterized as “impossible”; it is precisely for this reason that Rule 145 exists. It is not that an act dealing with court fees could never violate a party’s due process rights under the open courts provision, it is simply that under the facts of this case, no violation is shown.
In reviewing the act, the court does not apply traditional rules of construction. This court has observed that:
[i]n passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere-difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable.
Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968). See also Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The burden of demonstrating constitutional invalidity rests on the party assailing the statute. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974); Smith v. Craddick, 471 S.W.2d 375, 378 (Tex.1971).
The court erroneously reverses the burden in this case, stating that because a “substantial right” is involved that “[t]he government has the burden to show that the legislative purpose outweighs the interference with the individual’s right of access.” However, the court ignores the fact that Hanlon must first establish a substantial right and then show that the statute violates this right. It is not until this point that the government has to offer evidence into the balancing of interests between the legislative purpose and the individual’s rights. Thus, the burden is on the litigant to show that the act is unconstitutional. I do not believe that Hanlon has shown that the act has prevented him from exercising his right to sue in our courts or that this right has been unreasonably curtailed.
Other states have upheld similar filing fee acts against attacks for violation of the respective state’s open courts provision. In Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925) the Arkansas Supreme Court confronted the question of whether the requirement of advanced fees for litigants violated the Arkansas Bill of Rights (Const, art. 2, § 13) which provides that “every person is entitled to ‘obtain justice freely, and without purchase.’ ” In holding that the act requiring payment of the ad*345vanced fee did not violate this constitutional provision, the Arkansas Supreme Court stated:
It is the contention that the requirement for the payment of these fees without a provision for a pro rata return of the fees not used in paying the salaries renders the provision oppressive and therefore unconstitutional. It cannot be said, we think, that the amount is excessive, and the fact that the unused amount of the fees goes into the public revenues does not render the statute void. It is within the power of the Legislature to make reasonable provisions for the payment of costs of litigation so as to help defray the expenses of the courts. Our conclusion is that this provision of the statute is not invalid.
Id. at 613 (emphasis added). The Arkansas Supreme Court, recently reaffirmed the Marshall analysis in Cook v. Municipal Ct. of Pine Bluff, 287 Ark. 382, 699 S.W.2d 741 (1985).
In 1917, in In re Lee, 64 Okl. 310, 168 P. 53 (1917) the Oklahoma Supreme Court addressed an open courts attack against a statute which raised the cost of filing in that court. The petitioner argued that a $25 increase in the filing fee was unreasonable because the only service rendered was the “placing of a rubber stamp upon a case-made, and the writing upon the index and docketing records and filing of such case” by the clerk. The clerk retained the original $15 portion of the $40 filing fee. The $25 increase in the filing fee went into the state treasury. In upholding the validity of the statute, the Lee court observed that “the purpose of the fee is to reimburse the state for the expenses incurred in providing and maintaining all of the officers and other facilities of the court, and is intended as compensation to the state for services rendered, not by the clerk only, but by the entire court.” Id. at 56. Thus, the Oklahoma Supreme Court allowed the $25 increase to go into the states treasury, since it compensated the state for maintaining the court system.
A critical factor in the Lee court’s decision to uphold the validity of the statute was that the fee increase was reasonable. This should be a primary inquiry — was the fee increase reasonable? An Ohio court states that it does not matter “whether the amount to be paid therefor [court fee] goes to the officer, or into the public treasury, provided no more is exacted than is just and reasonable for the facilities afforded, and the services performed.” Lee, 168 P. at 56 (quoting State v. Judges, 21 Ohio St. 12 (1871)). See also McHenry v. Humes, 112 W.Va. 432, 164 S.E. 501 (1932). I submit that, due to the increased costs in maintaining and operating our state court system since the fee was in 1977, set an increase in the district court filing fee from $25 to $75 is reasonable.
The court draws a significant distinction on the fact that the fee goes into state general revenues and not into a special fund for the courts. The court holds that “filing fees that go to state general revenues — in other words, taxes on the right to litigate that pay for other programs besides the judiciary — are unreasonable impositions on the state constitutional right of access to the courts.” The court thus implies that if the $50 increase went into a special fund for the benefit of the courts, the act would be constitutional. As the state observes, however, a special fund is no more than an accounting device. Since dollars are fungible and more money will be spent on the court system than will be taken in under Section 32, it is absurd to conclude money collected from fees “will pay for other programs besides the judiciary.” The state’s annual share of the filing fee is expected to be approximately $11,000,000 while the State’s annual cost will be over $52,000,000. See Art. of May 27, 1985, ch. 980, art. IV, 1985 Tex. Sess.Law Serv. 7284 (Vernon). As long as the State pays more in financing the judiciary than the courts receive in user fees, the court’s logic is flawed. This court need not presume that any portion of the fee increase goes to support general welfare programs unrelated to the court system. *346If any presumption is to be made, it should be in favor of the validity of the statute.
The court relies on Florida and Illinois cases as support for its position that Sections 31 and 32 are unconstitutional. Crocker v. Finley, 99 Ill.2d 444, 459 N.E.2d 1346, 77 Ill.D. 97 (1984); Flood v. State, 95 Fla. 1003, 117 So. 385 (Fla.1925); Farabee v. Bd. of Trustees, Lee Cty. Law Library, 254 So.2d 1, 5 (Fla.1971). Neither Crocker nor Flood involved an ordinary filing fee, or portion of a filing fee, deposited in the state general revenue fund. Crocker involved a special $5.00 filing fee which was to be collected from petitioners for dissolution of marriage in addition to the regular filing fee. The proceeds of this special fee were earmarked for the Domestic Violence and Shelter and Service Fund. The Crock-er court held this fee conflicted with the Illinois constitutional right to obtain justice freely, not because it was a tax on litigation, but because it was a tax to support a general welfare program which was insufficiently related to the parties’ litigation or the court system. Since Crocker involved a special fee set aside for a special purpose fund, it was absolutely clear that the proceeds of the fee would not in any way go to defray the costs of the court system.
In Flood, a 1928 statute imposed a $10 docket fee on litigants in certain counties to be used to establish a county law library with any excess to be used for “general county purposes” as the board of county commissioners deemed best. The Flood court evidently felt that a tax levied to support a law library was unconstitutional under Florida's open court provision. Subsequently, the Farabee court “receded” from Flood to the extent that it could be read to prohibit such library fees as a cost unnecessary to the administration of justice. Farabee deemed the crucial fact in Flood to be that any excess fees were available to the county for building roads, etc., purposes unrelated to the administration of justice. Thus, the Florida courts adjust their interpretation according to the particular facts of the case. See State v. Young, 238 So.2d 589 (Fla.1970) (where an assessment going into state treasury may still be considered acceptable court cost).
Even assuming the court’s treatment of the Florida and Illinois cases is correct, the fact that this may be the “rule in other jurisdictions or be the expression of commentators does not necessarily mean it will be the rule of law in Texas.” Hofer v. Lavender, 679 S.W.2d 470, 473 (Tex.1984).
Caption Requirement
The court holds that Sections 31 and 32 are unconstitutional because they violate the caption requirement under Article III, § 35. The purpose of a title or caption is to give a general statement of, and call attention to, the subject matter of an act, so that legislators and the public at large may be apprised of the subject of the legislation. Smith v. Davis, 426 S.W.2d 827, 833 (Tex.1968). The key reason for the caption requirement is to prevent surprise, deception, or the proverbial “log-rolling” of legislation.
The Omnibus Fee Bill’s caption reads:
An act relating to various fees collected by certain state and local agencies and to the imposition of new fees in connection with the functions of certain state and local agencies.
The caption informs the reader that new fees are going to be imposed on state agencies. There is no limiting language; the reader is to put on notice that there may be an across the board increase in the fees paid to all state agencies. The caption adequately informs legislators that the act could include an increase in the filing fee paid to district court clerks.
In reviewing the caption, the court ignores the rule of construction that “[b]oth the constitutional provision [caption requirement] and the questioned statute are to be liberally construed in favor of constitutionality.” Robinson, 507 S.W.2d at 524. The court states that the term “state and local agencies” in the caption “simply does not fairly inform the reader that the bill *347affects the judiciary.”1 However, this view does not conform to reality. Generally, legislators perceive and treat the judiciary as a state agency. One need look no further than state budget hearings, where the judiciary is consistently treated as “agency” of the state. The court’s strict construction of the term “state and local agencies” is unwarranted.
The purposes of the caption requirement have been fulfilled in this case. Both the Legislature and the public were adequately apprised of the subject of the legislation. Thus, the court errs in holding that the caption to the fee statute fails to comply with the constitution’s caption requirement.
Conclusion
The court’s decision in this case may bring other fee statutes under constitutional attack. For instance, Tex.Gov’t. Code Ann. § 51.005, which sets out the fees applicable to this court, directs the clerk to deposit those fees and costs into the state treasury. These monies end up in the general revenue fund; thereby making our own filing fee subject to a similar attack. See also Tex.Gov’t.Code Ann. § 51.207(d) and (e).
For the above reasons, I dissent.2
. The issue is not whether the judiciary "administers” or "adjudicates." The “judiciaiy" does not collect the fee. The fee is collected by the district court clerk, a ministerial officer of the court. Furthermore, I believe that the public at large views district clerks as agents of the state.
. What happens to the money that has already been collected by the district court clerks?