The Attorney General of Texas
October 24, 1984
JIM MATTOX
Attorney General
Supreme Court Bullding
Eonorable Mike Driszoll Opinion No. JM-216
P. 0. BOX 12548 Harris County Attorwy
Austin, TX. 7871% 2543 1001 Preston, Suite 634 Re: Whether a district clerk
512/4742501 Boueton, Texas 7 7,102 must docket a transferred case
Telex 9101874.lM7
before the filing fee is paid
Telecopier 5W475.0266
Dear Mr. Driscoll:
714 Jackson. Suite 700
Dallas. TX. 75202.4508 You have requested our opinion regarding a procedural matter
under the Texas Rules of Civil Procedure. You ask whether the Harris
2141742-0944
County district ,::Lerk is required to assign and docket a case
4824 Alberta Ave.. Suite 180 transferred to his county pursuant to rule 89 before a filing fee is
El Paso, TX. 7SSO5-2793 paid. You have a:lllo asked how such a case may be dismissed if such
915m3aS4 filing fee is not p~nid.
IO1 Texas, Suite 700
Rule 89 of t:>e Texas Rules of Civil Procedure sets out the
.,ous,on, TX. 77002.3111 procedural steps required when a case has been transferred to another
7131223-5888 county under a transfer of venue. Portions of the rule follow:
If a mation to transfer venue is sustained, the
800 Broadway. Suite 312
Lubbock. TX. 79401-3479
cause shall not be dismissed, but the court shall
808/747-5233 transfer said cause to the proper court; and the
costs incurred prior to the time such suit is
filed in the court to which said cause is
43OS N. Tenth. Suite S
transferred shall be taxed against the plaintiff.
,&Alla”, TX. 7SMl~lSSS
512IS82-4547
The clerk shall make up a transcript of all the
orders :n;lde in said cause, certifying thereto
officially under the seal of the court, and send
200 Main Plaza. Suits 400
it with l:he original papers in the cause to the
San Antonio. TX. 782052797
clerk 01’ the court to which the venue has been
5121225-4191
changed. . . . After the cause has been
transferred, as above provided for the clerk of
the court to which the cause has been transferred
shall ~.il notification to the plaintiff or his
attorney that transfer of the cause has been
completed, that the filing fee in the proper court
is due and payable within thirty days from the
mailing cf such notification. and that the case
may be tlj.smissed if the filing fee is not timely
paid; and if such filing fee is timely paid, the
cause will be subject to trial at the expiration
p.. 969
Ronorable Mike Driscoll - Page 2 (J&216)
of thirty days a:f,:er the mailing Of notification
to the parties ox their attorneys by the clerk
that the papers h,ave been f,iled in the court to
which the cause has been transferred; and if the
filing fee is not timely paid, any court of the
transferee county to which the case might have
been assigned, upon its own motion or the motion
of a party, ma:{ dismiss the cause without
prejudice to the refiling of same.
Tex. R. Civ. Proc. 89.
It is our opinion th#%,: rule 89, when read in conjunction with
article 3927, V.T.C.S., door! not require the district clerk to assign
and docket a case transferred under a transfer of venue until the
required filing fee of $23.00 Is paid. Under rule 89, the clerk of
the court to which a caho is transferred is required to receive
certified copies of the papers. files and orders entered in the case
and to notify the plaintifE,, that the case has been “transferred” and
that a filing fee is due. l,f the filing fee is not paid, any district
court “to which the case might have been assigned” may dismiss the
cause. This last phrase, contained in rule 89, we believe, implies
that the case is not “assigned,” that is, placed on the docket of a
particular court, before the filing fee is paid.
In any event, article 3927, which controls in the event of a
conflict with a rule of procedure promulgated by the supreme court,
clearly provides that an ixtion cannot be docketed before the filing
fee is paid. The statute yovides as follows:
The clerks of .rhe district courts shall receive
the following fers for their services:
(1) The fees in this Subsection shall be due
and payable, and shall be paid at the time suit or
action is filed.
For each sd.t filed, including appeals from
inferior courts . . . . . . . . . . . . . $25.00.
V.T.C.S. art. 3927.
With regard to your inquiry concerning the manner of dismissal of
cases for which filing fees are not paid, we believe that any district
judge of a court in the transferee county ro which the case might have
been assigned would have the authority under rule 89 to enter an order
that the case is dismissed, notwithstanding the fact that it has not
been assigned to any particular court within that county. -See
p. 970
lionorable Mike Driscoll - Pqe 3 (m-216)
V.T.C.S. art. 199a (authority for local rules relating to the
assignment of cases).
SUMMARY
Cases transfermd under a change of venue need
not be assigned and docketed in the transferee
county until a fi:L:ing fee is paid.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gaxral
DAVID R. RICHARDS
Btecutive Assistant Attorne? General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Nancy Sutton
p. 971