Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
March 10, 1986
JIM MATTOX
Attorney General
Supreme Court Building Honorable Mike Driscoll opinion No. .I?+-448
P. 0. BOX 12548 Harris County Attorney
Austin. TX. 78711.2548 1001 Preston, Suite 634 Ret Whether a county clerk must
512/475-2501 77'302 collect $5.00 in court costs in
Houston, Texas
Telex 9101674-1387
probate matters under article
Telecopier 51214750266
1630d, V.T.C.S.
714 Jackson, Suite 700 Dear Mr. Driscoll:
Da11as. TX. 75202-4508
2,4/742-8944
You have asked whether probate proceedings are civil suits within
the meaning of sec,tion3 of article 1630d, V.I:.c.s. Article 1630d,
4824 Alberta Ave., Suite 160 V.T.C.S., provides in part as follows:
El Paso. TX. 79905.2793
9151533~3484 Sec. 2. The commissioners court, by order,
shall eritablishan appellate judicial system fund
,001 Texas. suite 700 to:
Houston, TX. 77002.3111
713/2235886 (1) assist the courts of appeals in the supreme
judicial district of the State of Texas in pro-
cessing appeals filed from the county court, county
806 Broadway, Suite 312
Lubbock, TX. 79401.3479
courts at law, probate courts, and district courts;
8061747-5238 and
(2) defray costs and expenses incurred for the
4309 N. Tenth. Suite B
McAllen. TX. 78501-1685
operation of the court of appeals within the State
512K82.4547 of Texas for which the county is required by law to
reimburse other counties within the supreme
judicial district.
2M) Main Plaza. Suite 400
San Antonio, TX. 782052797
Sec. 3. (a) In order to fund the appellate
512f2254191
judicial system, the commissioners court of each
county within the supreme judicial district of the
A,, Equal Opportunity1 State of Texas shall set a court costs fee of not
Affirmative Action Employer more than $5 for each civil suit filed in a county
court, county court at law, probate court, or
district court in the county, except for suits for
the collection of delinquent taxes. (Emphasis
added).
You have informed us that on August 27, 1985, pursuant to section
2 of article 163Oi. the conmissioners court of Harris County approved
p. 2035
Ronorable Mike Driscoll - Eage 2 (JM-448)
an order establishicg an appellate judicial system fund and saLting a
court cost fee of $5.00 for each civil suit filed in a county ccurt,
county court at law, probate court, or district court, except for
suits for collection of delinquent taxes. The order became effective
on September 1, 1985.
It is our duty to give full recognition to the legislative intent
and purpose in construing section 3(a). See Patterson v. City of
Dallas, 355 S.W.2d 838 (?lex. Civ. App. -Dallas 1962, writ ref'd
n.r.e.). We must ascertain whether probate proceedinns are civii
suits in the context of st,ction.3(a).-As quo&d above,-section ?(a)
of article 1630d allows tht!county clerk to collect the $5.00 fee for
each "civil suit" filed in specified courts in the counties in a court
of appeals district with s population of at least three million.
V.T.C.S. art. 1630d, 591, 3(a). Although the term "civil juris-
diction" as used in the s:ete constitution does not include probate
jurisdiction, see Tex. Ccnst. art. V, 158, 16, 17, 22; State v.
Gillette's Estate, 10 S.U.2d 984 (Tex. Comm'n App. 1928, judgmt
adopted), we believe that :the legislature's use of the-term "civil
suit" in section 3(a) necessarily includes those suits In which a
probate court has jurisdiction.
Jurisdiction over probate proceedings is conferred by the
constitution and statutes cf this state. See Tex. Const. art. V, 588,
16, 22. See also V.T.C.S. art. 1970-110ay se+ (statutory probate
courts in Harris County); Boman v. Howell, 618 S.W.2d 913 (Tex. Civ.
APP. - Fort Worth 1981, ncywrit). jurisdiction of some probate
courts, including the probste courts in Harris County, is limited by
statute to the general jurisdiction of a probate court. See V.T.C.S.
art. 1970-110a. §2; Prob. Code, §3(11). Probate matters Gbe filed
in a county court, statutory probate court, or certain county courts
at law. -See Prob. Code %5.
Legislative history reveals that there was no reason to list
"probate court" in section 3(a) of article 163Cd. V.T.C.S., unless the
legislature intended the cc'urtcosts fees to apply to probate matters.
The original version as introduced in the Texas Rouse of Representa-
tives did not include the term "probate court" as coming under the
jurisdiction of the appe:.l.atejudicial system. However, a House
Committee substitute, passc:dby both houses, added the term within the
provision. See H.B. No. 1889, Bill File for H.B. No. 1889, Legisla-
tive ReferenTLibrary. Consequently, we conclude that the legisla-
ture would not have provided a cOurt costs fee for civil suits filed
in a probate court unless it intended civil suits to include probare
proceedings. See Prob. Code §3(bb) (definition of probate matters or
probate proceezgs).
Moreover, this conclur.ionis consistent with established judicial
policy that probate matters are generally treated in the same manner
p. 2036
-.
Honorable Mike Driscoll - P;%ge3 (JM-448)
as any other civil action. See Kots v. Kots, 613 S.W.2d 760, 761
(Tex. Civ. App. - Beaumont 198r1-10 writ); see also Maddox v. Surber,
677 S.W.2d 226 (Tex. Civ. .4pp.- Houston [lswT 1984, no writ).
SUMMARY
Section 3(a) of article 1630d, V.T.C.S.,
authorizes the county clerk, on order of the
commissioners court, to collect a court cost fee
of $5.00 for all civil suits, including probate
proceedings, fil,sdin a county court, county court
at law, probatk court, or district court in
certain courts oE appeals districts.
MATTOX
Attorney General of Texas
JACK HIGHTOWFP
First Assistant Attorney G$zueral
MARY KELLER
Executive Assistant Attormy General
ROBERT GRAY
Special Assistant Attorney Geresal
PRICKGILPIli
Chairman, Opinion Committe~a
Prepared by Tony Guillory
Assistant Attorney General
p. 2033