Attorney General Opinion JM-0384

JIM MATTOX Attorney General Supreme Court Building P. 0. BOX 12548 Austin. TX. 76711.2548 512/47&2501 Telex 9wa74-1367 Telecopier 5121475-0266 714 Jackson, Suite 700 Dallas, TX. 75202.4506 2141742-8944 4824 A,berta A”& suite 160 El Paso, TX. 79905-2793 9151533.3484 1001 Texas, Suite 700 Ho”sto”, TX. 77002.3111 7131223.5886 606 Broadway, Suite 312 Lubbock, TX. 79401-3479 aw747.5238 4309 N. Tenth. Suite 6 McAllen, TX. 76501.1685 5121682-4547 200 Mann Plaza. Suite 400 San Antonio. TX. 78205.2797 512/225-4191 An Equal Opportunity/ Affirmative Action Employer The Attorney General of Texas fecember 2. 1985 Honorable F. Dunciat llmnes District Attorney P. 0. Box 441 Greenville, Texas 75401 Dear Mr. Thomas: Oph~iom No. .JM-384 Re: Whether certain fees may be charged by a district clerk You ask about the fees a district clerk may charge in couuection with a lawsuit fil'ed in district court. At the time a suit is filed in district court a fee of $75.00 is due and payable. Gov't Code 551.317(b)(l) (fomerly V.T.C.S. art. 3927, §I; amended by Acts 1985, 69th Leg., ch. 239, at 2038); Acts 1985, 69th Leg., ch. 480, at 3932 (bill adopting Gor"t Code). A catchall provision authorizes district clerks to charge reasonable fees for the performance of duties for which the legislature has set no fee. Gov't Code §51.319(5) (formerly V.T.C.S. art.~ 3928, 55). You ask whether the catchall provision authorizes a district clerk to charge, in addition to the initial $75.00 filing fee, reasonable fees for filing each order and judgment in a suit. You inform us that the Office of Court Administration takes the position that the initial $75 fee covers all clerical services in a suit except those for which additional fees are expressly provided. We think that the Office of Court Administration has interpreted the statute correctly. We base our conclusion on the structure and language of the applicable fee statutes. Gov' t Code 5551.317 - 51.319. The legisiature has provided for fees to be charged by thti clerk at the cite a suit is filed in district court. Gov't Code 551.317(b)(l). The legislature has also set fees to be charged for the performance of certain services by a district clerk at the time of performance or request for performance and has provided that any such fee is "in addition to a fee under Section 51.317." Gov't Code 951.318(a). That language implies that other duties performed by a district clerk in connectlou with a lawsuit are covered by the initial fee. A 1980 cam: supports our reading of section 51.317(b)(l). Rodeheaver v. Aldstz 601 S.W.Zd 51 (Tex. Civ. App. - Houston [lst Dist.1 1980, writ ref d n.r.e.). In Rodeheaver the court dealt with the following language: p. 1760 Honorable F. Duncan Thomas - Page 2 (JM-384) For each adve::se action or contest, other than the filing of a claim against an estate, in a cause or docket in a probate court, a fee to be due and payable and to be paid by the party or parties starting or initiating such adverse action or contest, but excluding other items listed in Paragraphs A, B, C, and D of this Section 1, of $25.00. V.T.C.S. art. 3930(b). §lh(l)(c). The court concluded that the $25 fee covered various duties performed by the county clerk during the course of the suit: A reading of .Article 3930(b) show. that the $25.00 fee which the county clerk is to collect for each flied adverse action or contest covers not only the c:.erk's services for the initial filing of the acrion but also many other services which will accrue during the processing of the suit. Thus, the statutory fee is, in effect, an advance payment for the cost of services which have not been rendered et the time the fee is collected. Rodeheaver, 601 S.W.2d at 54. We think section 51.317(b)(l) must be read in the same way. Because the legislature has set a $75 fee' that covers the filing of orders and payments in a suit, the catchall provision is inappllc- able to such filings since it applies only when the legislature has not set a fee to cover the clerk's performance of a duty. 1. The Sixty-ninth Lq;islaturr amended article 3927 to increase the initial filing fee fo,c a suit In district court from $25.00 to $75.00. Acts 1985, 69th Leg., ch. 239 at 2038. The text of the Govern- ment Code, which was adopted in the same legislative session, states that the initial filing fee is $25.00. Gov't Code 051.317(b)(l), Acts 1985, 69th Leg., ch. 480, at 3932. The same bill that enacted the Government Code repealed a:rticle 3927. Id. at 4088. The increase in the filing fee is effectj.ve, nonethele= because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature that enacted the code. V.T.C.S. art. 5429b-2, 93.11(c). And the codification was not intended to effect a substan- tive change in the law. Ac.ts 1985, 69th Leg., ch. 480, 127. at 4090. p. 1761 1 Honorable F. Duncan Thomas .- Page 3 (JM-384) SUMMARY The initial fese of $75.00 for filing a suit in district court :overs the services performed by the district clerk during the course of the cult except for the service for which a fee is expressly provided. Gov't Code 051.317. Very I truly your MATTOX Attorney General of Texas JACKHIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney (General RICK GILPIN Chairman, Opinion Committee Prepared by Sarah Uoelk Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Cilpin, Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk Bruce Youngblood p. 1762 .