Untitled Texas Attorney General Opinion ( 1995 )

@ffice~of tfy SZlttornrp 63enrraI
&date of Pr;exas
DAN MORALES
ATTORNEY
GENERAL August 3,199s
Mr. Barry Williion Opinion No. DM-360
Chair
Railroad Commission of Texas Re: Whether the Texas Railroad Commission
P.O. Box 12967 is required to pay certain fees requested by
Austin, Texas 7871 l-2967 county clerks (RQ-701)
Dear Mr. Wtiamson:
You ask whether the Texas Railroad Commission (the “commission”) is required
to pay certain fee-s when fXng notices required by section 89.043(e) of the Natural
Resources Code. Section 89.043 provides for the plugging of wells by the commission.
Subsection (e) requires the commission to
file for record a copy of the notice in the office of the county clerk of
the county in which the well is located The copy of the notice &xl
in the office of the county clerk must contain [certain information
about] the land on which the well is located. ?%e clerk shall rewed
the notice in ,the real property recorak of the county. The cod
sion shall fiunish a copy of the notice to a holder of a lien on the well
or a nonoperator on that person’s reque5t.l
Nat. Res. Code 3 89.043(e) (emphasis added) (footnote added). You state that county
clerks have rejected filings under this provision for lack of fees. You suggest that county
clerks have asked the commission to submit to fees provided by sections 118.011(a)(2)
and (b)(2), 118.013,118.0216, and 291.007(d)2 ofthem Government Code.
Local Government Code sections 118.01 I(a)(2) and 118.013(a) provide for a real
propaty rrcords filing fee “for filing and recording, including indexing, in the real
property records in the office of the county clerk a docutnent that is authorized or required
to be 6led in those records.” Local Gov’t Code 5 118.013(a). Local Govemment Code
sections 118.011(b)(2) and 118.0216 provide for a records management and preservation
‘Tk8eventy-fuultllLegislatursameadatrubsclMn(e)byaddingtlu``
dfdvo Angut 28.1995~ “The amIdssionshaulwtkclwgalrfceforthefiljngolorrdingofthe
nodoe.- See H.B. 9039, Act of May 21. 1995. 74th Lq.. RS. ch 928, 0 1. mailoblr in Wtsdaw,
TX-L&S 928 (1995) (copies available at HOUSC Dommmt Diilon OtXa) (to be cd&d as Nat Res.
code p 89.043(e)). This opinion does not consida the &U of that amendment
=As of Sqxemtu 1.1995, section 291.007 will be rmunbmd as seUion 291.008. See S.B. 959.
AU of April 25.1995.74th Lq., RS.. oh 76.0 17.01, ovoilable in Westlaw, Tx-Lqis 76 (1995) (copies
available at senate Bid1Diiiution office).
Mr. Bany Williamson - Page 2
fee “for the records management and preservation services performed by the county clerk
after the filing and recording of a document in the records of the oflice of the clerk.”
Local Gov’t Code $ 118.0216. Local Government Code section 291.007, which was
added in 1993, see Act of May 22, 1993, 73d Leg., RS., ch. 818, 3 2, 1993 Tex. Sess.
Law Serv. 3261, 3262, authorizes a commissioners court to impose a security fee to be
charged at the time of filing civil cases and other documents,
Section 154.004(b) of the Local Government Code provides as follows: “If a
county officer is paid an annual salary. the state or any county may not pay a fee or
commission to the officer for the performance of a service by the officer.” You suggest
that section 154.004(b) precludes the State from paying the foregoing fqs.f For the
following reasons, we disagree.
Fii section 154.004(b) is inapplicable with respect to the real property records
filmg fee and the records management and preservation fee set forth under section
118.011 of the Local Government Code. Section 118.011 of the Local Government
Code, the county clerk fee schedule, was recodified in 1987. See Act of April 30, 1987.
70th Leg., RS., ch. 149, 8 1, 1987 Tar Gen. Laws 707. 862. It now provides that “[a]
county clerk shulZ collect the following fees for services rendered to mry person.”
(Emphasis added.) ‘The statutory predecessor to section 118.011, now-repealed article
3930, V.T.C.S., provided that “[c]ounty &rks and county recorders are hereby
authorized and required to collect the following fees for services rendered by them to all
persons, 5nns, corporations, legal entities, govemmen~l agencies an&or govemmenlol
represenfatives.” (Emphasis added.) The revisor’s note following section 118.011 states
as follows:
The revised law substitutes “any person” for the list of legal
entities in V.AC.S. Article 3930 because the Code Construction Act
(Chapter 311, Government Code) detines “person” to include any
legal entity.
In recodiig article 3930 in the Local Government Code, the legislature did not intend to
nuke any substantive change in the law. See Act of April 30,1987,7Oth Leg., RS.. ch.
149, 5 51, 1987 Tex. Gen. Laws 707, 1308. Thus, section 118.011, considered alone,
clearly requires county clerks to collect fees from the State.
Gn their face, section 118.011, which requires county clerks to collect certain fees
from the State, and section 154.004(b), which precludes the State from paying fees to a
cowlty clerk who receives a salary, conflict. We note, however, that in 1967. the Siieth
Legislature passed House Bii 80, amendii the statutory predecessor to section 118.011,
‘You rely upon Attorney Gelled opinion IM-779 (1987) widcb wnsid~ whubor a dlsnicl
raonryis~topg,a~(othcountyc~forrsMdingrbdradsofjudgmentunda~on
51.318 of the Govemmemt Cd. Section 51.318 of the t3amumtcodc,howeva,pertainstofces
ebargcd by distria clerks.
Mr. Barry Williamson - Page 3
now-repeahsd article 3930, V.T.C.S., and clarifying that that provision repealed certain
other statutory provisions relating to certain fees for county clerks. See Act of
May25,1967, 60th Leg., RS., ch. 681, 1967 Tex. Gen. Laws 1790. One of the pro-
visions a&ted by House Bill 80 was now-repealed article 3912e, V.T.C.S., the statutory
predecessor to section 154.004(b). See id. 5 2, at 1790-91.
House Bill 80 provided in pertinent part that “‘the fees provided for County Clerks
in all other laws, or parts of laws, in contlict with the provisions of this Act are hereby
repealed as to County Clerks only, including but not limited to . . Article 3912e,
Vernon’s Texas Cii Statutes.” Id. As this office recognized shortly after House Bill 80
was enacted, “Prior to the enactment of House Bill 80, no fees were required to be paid by
the State of Texas. [V.T.C.S. art. 3912e. $5 1,3]. House Bii 80 now rqu-hes fees to be
paid by the State.” Attorney General Opinion M-134 (1967) at 2; see also Attorney
General Opinion M-168 (1967) (noting that House Bii 80 did not repeal sections 1 and 3
of article 3912e insofx as it applied to fees under Probate Code or Code of Crhninal
Procedure). Thus, the State must pay all fees set forth in section 118.011, including the
real property records filing fae and the records management and preservation fee.
The section 291.007 security fee is not mentioned in the section 118.011 fee
schedule and must be analyzed separately. As noted above, subsection (a) of Local
Government Code section 291.007 authorizes a conunissioners court to impose a security
fee to be charged at the time of filing in civil cases. Subsection (d) provides that if the
commissioners court of a county sets a security fee in civil cases, the county and district
clerks shah collect a fee of one dollar for filing any document not subject to the security
fee. The fees and costs collected under these provisions must be deposited in the
courthouse security fund by the county treasurer. Local Gov’t Code 5 291.007(e). “The
fund may be used only to finance the following items when used for the purpose of
providing security services for buildings housing a district or county wurt,” includmg, for
example, metal detectors, surveillance equipment, and security personnel. Code Ctim.
Proc. art. 102.017(c), a&edby Act of May 22,1993,73d Leg., RS., ch. 818,s I,1993
Tar Sess. ,Law Serv. 3261, 3262.4 See generally Attorney General Opinion DM-283
(1994) (wnstruing Local Gov’t Code 3 291.007).
We believe that the State is not precluded by section 154.004(b) from paying the
section 291.007 security fee for the following reasons. Subsection (a) provides that the
secUityfee”shaubetaxedasotherwsts. The county is not liable for the costs.”
Subsection (b) provides that in a civil case brought by the State or political subdivifion in
which the State or political subdivision is the prevailing party, the security fee under
subsection (a) “shah be taxed and collected as a cost of wurt against each nonprevailing
party.” Section 291.007 exempts the local county, but not the State or other political
‘Aticle 102.017 will be ~umbcrcd as artide 102.018 as of Sqtembu 1, 1995. =e S.B. 959,
Au ef April 25, 1995.74th Lq.. ch 76, 8 17.01. and.amdcd to apply to municipal courts cffcdive
Angust 28,1995,9cc S.B. 349, Ad ofMay 27,1995,74th Le& RS.. cb. 164.0 2, avaiiablr In We&w,
TX-Le.&database (copia wailable at Senate BiU Diswiition Of6ce).
Mr. Barry Williamson - Page 4
subdivisions, from paying the subsection (d) security fee. This omission contrasts with the
special provision made for fees paid by the State and politkal subdivisions in subsection
(b). and leads us to conclude that the legislature intended for the State and political
subdivisions, other than the local wunty, to pay the subsection (d) fee.5 To the extent that
section 291.007(d) and section 154.004@) conflict, section 291.007(d), which is both
more recent and more specific than section 154.004(b), must prevail. See Gov’t Code
$5 311.025(a), .026@). Therefore, section 154.004@) of the Local Government Code
does not preclude the commission from paying the subsection (d) fee.6
SUMMARY
Local Government Code section 154.004(b) does not preclude
the Texas Railroad Commission from paying a real property records
filiig fee pursuant to Local Government Code sections 118.01 l(a)(2)
and 118.013(a), a records management and preservation fee pursuant
to Local Government Code sections 118.011(b)(2) and 118.0216, or
a wurthouse security fee under Local Gove-rnment Code section
291.007(d) when filing notices rquired by section 89.043(e) of the
Natural Resources Code.
DAN MORALES
Attorney General of Texas
he might su~esf that no rcfmmeeis madeto the Stateand politicalsubdivtsionswith Rspcd
to the subs&ion (d) fee buzauscthe legislahuc8ssumcdthat theywouldbe precludedfrom paying the fee
under seuion lU.oo4@). This algument is not convincing,howcVu,bxausc section 154.004(b)only
pnzcludcsthe Stateand count@ from Payingfees. It doesnot pm&de the IKJSI of other typesof political
mtdivision5frompaying fees.
Mr. Barry Williamson - Page 5
JORGE VEGA
Fist Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General