Untitled Texas Attorney General Opinion ( 1985 )

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The Attorney General of Texas
August 23. 1985
JIM MATTOX
AttorneyGeneral
Overrules in part JM-168
Supreme Court Building Ronorabla Henry WadI, Opinion Ho. JM-346
P. 0. Box 12548 Criminal District A:torney
Austln, TX. 78711-2548 Condemnation Sectio!l Re: Fees to be charged
512,475.2501 Services Building filing certain instruments in
Telex 9101874-1367
Dallas, Texas 75202 probate court
Telecooier 512I475.02’36
Dear Mr. Wade:
714 Jackson, Suite 700
Dallas, TX. 75202-4506 You request the opinion of this office concerning fees, if any,
2141742-0944
to be charged by county clerks for the filing of pleadings and legal
instruments by defcrtdantsin adverse actions in the probate courts,
4824 Alberta Ave., Suite 160 such as the defenduut's original answer, an*wer* to interrogatories,
El Paso, TX. 799052793 or responses to requests for admissions. You also seek clarification
91515333464 of Attorney General.Opinion JM-168 (1984) in regard to the applica-
bility of subsectixl (b)(i), paragraph B(l), section 1, of article
,001 Texas. Suite 700
3930(b), V.T.C.S. We conclude that the state statutes do not
Houston, TX. 77002-3111 authorize any fees t.obe charged by county clerks in adverse actions
713/223-5886 in the probate ccurt, except the fee to be paid by the party
initiating the adverse action as authorized by article 3930(b),
section 1, paragra~n B(l)(c).
1306 Broadway, Suite 312
Lubbock, TX. 79401.3479
8061747-5238 Since 1967, a::ticle 3930(b), V.T.C.S., has prescribed the fees
which clerks of the county courts are authorized to charge for court-
related services pc,rformedby the clerks. In section 1, paragraph A
4303 N. Tenth, Suite B
of that act provides for fees for ordinary civil cases on the county
McAHen, TX. 78501-1685
5121882-4547
civil court dockets. Paragraph C relates to services of the clerk in
issuing and recor<,lng the return of documents where no cause is
pending. Paragraph D has to do with issuing certificates, certified
200 Main Plaza. Suite 400 copies, and other documents on which there is no return to be
San Antonio. TX. 78205-2797
recorded. Paragraph E applies to letters testamentary and similar
512/2254191
instruments, and Paragraph F applies to the filing and keeping of
wills for safekeepjng. Section 1, paragraph B, which prescribes fees
An Equal Opportunityl for probate court do#zkets,provides, in pertinent part, that
Attirmative Action Employer
(1) I've each cause or action, or docket in
Probate Courts: . . . .
(a) For each original cause or action in a
Probate ?&, a fee to be due and payable and to
be paid 1)~ the party or parties starting or
initiating said cause or estate action. . . .
p. 1574
Honorable Henry Wade - Page Z (JM-346)
(I) For probat:ing will vith independent
executor; for admtuistration with will attached,
for administration of an estate, for guardianship
or receivership of an estate, for muniment of
title, a fee from the starting or initiating such
cause of action uztil either an order approving
the inventory and $praisement is filed or until
the inheritance oF estate tax receipt is filed,
whichever first oc&s:
-- a fee of...........$35.00
. . . .
(b) For each Jrobate docket remaining open
after the filing of the order approving the
inventory and appraisement or after the filing of
the inheritance OI? estate tax receipt, whichever
occurs first, &a following fees shall be
paid. . . .
(I) For filing, or filing and recording, of
each instrument of writing, legal document, paper
or record in an open Probate Docket after the
filing of the order approving the inventory and
appraisement or s:Eter the filing of the tax
receipt, whichever :Lsapplicable, a fee:
(1) For the first page of.............. $3.00
(2) For each p,%geor part of a page thereafter
of ......................................... $2.00
(ii) For approving and recording each bond
relating only to an open Probate Docket after the
filing of the order approving the inventory and
appraisement or after the filing of the tax re-
ceipt, whichever is applicable, a fee of... $3.00
(iii) For administering each oath relating to
an open Probate P,ccket after the filing of the
order approving the inventory and appraisement or
after the filing cf the tax receipt, whichever is
applicable, a fee ,~f....................... $2.00
(c) For each ad-verseaction or contest, other
than the filing of IIclaim against an estate, in a
cause or docket ilr a probate court, a fee to=
due and payable ant3 to be paid by the party or
Parties starting o:cinitiating such adverse action
or contest, but e&uding other items listed in
p. 1575
Ronorable Henry Wade - Page :I (JM-346)
Paragraphs A, B, C, and D of this Section 1,
of ................ ......................... $25.00
(d) For filing and entering each claim against
an estate in the cLsim docket, a fee to be paid by
claimant at the -time of filing such claim,
of ......................................... $2.00
(Emphasis added).
Until amended in 1983, paragraph B(l)(a) provided for a fee for
each original cause or action for a period of one year from the
starting or initiating of th'e cause of action instead of a fee from
the starting or initiating of the cause of action until either an
order approving the inventory and appraisement is filed or until the
inheritance or estate tan receipt is filed. Likewise, prior to 1983,
paragraph B(l)(b) provided fees for each probate docket remaining open
after its first anniversary date instead of a fee for each docket
remaining open after the fiL:Lngof the order approving the inventory
and appraisement or after the filing of the inheritance or estate tax
receipt.
The usual proceedings within the jurisdiction of the probate
courts may remain pending Eior lengthy periods of time. It is our
opinion that the legislatur: intended the reference to inventory and
appraisement and to inheritance or estate tax receipt as a determina-
tion of the period of time during which services by the county clerk
are compensated by the lump sum fee for the starting of the original
cause or estate action. The amendment in 1983 ties that determination
to key points in the probate process in place of the arbitrary one-
year period. See Bill Anal]%16 to S. B. No. 663, 68th Leg., prepared
for Rouse CommEee on the .Judiciary,filed in Bill File to S. B. No.
663, Legislative Reference Iibrary. We conclude that fees provided by
paragraph B(l)(b) apply to services which would be covered by the
provisions of paragraph B(l)(a) were it not that the services occur
after the filing of the ordr,rapproving the inventory and appraisement
or after the filing of the tar receipt. On the other hand, fees
provided by paragraph B(l):(:) apply to adverse actions or contests
other than claims against an estate, which are not themselves probate
matters, but are filed in probate court because they are ancillary or
incident to a cause in the ,probatecourt. Fees provided by paragraph
B(l)(d) apply to claims against an estate.
Rence, we conclude ths.t it is the intention of the legislature
that it is paragraph B(l)(c), not paragraph B(l)(b), that applies to
the adverse actions about whf.chyou inquire.
It has long been estab3.ishedthat unless a fee is provided by law
for an official service required to be performed and the amount is
p. 1576
Honorable Renry Wade - Page 4 (JM-346)
fixed by law, a fee may not be charged. Furthermore, fee statutes are
strictly construed, and fees are not pelmitted by implication.
The courts of 1311s state have adopted the rule
construing strictly those statutes prescribing
,fees for public officers and against permitting
such fees by implication. No officer is permitted
to collect fees ot commissions unless the same are
provided for and the amount thereof declared by
law. This is true, notwithstanding such officer
may be required by law to perform specific
services for which no compensation is provided.
HcCalla v. City of Rockdale,,246 S.W. 654, 655 (Tex. 1922). See also
Sheouard. 192 S.W.:!d
Moore v. Sheppard, S.W. nty V.
559, 561 (Tex. 1946); Nueces County V.
t, 57 Tex.
Currington, 162 S.W.2d 687, 1688 (Tex. 1942); State v. Moore,
Currington
307, 321 (1882); Attorney General Opinions MW-104 (1979);
(1979); R-796
(1976); S-87
b-o, (1953);
\lvo=,i V-957
Y-Y=, i'v+v,.
(1949).
Paragraph B(l)(c) expressly requires a $25.00 fee to be paid by
the party initiating an advlarse action' or contest in a cause in a
probate court. We think that neither paragraph B(l)(c) nor any other
statutory provision of whi& we are aware provides for a fee other
than the initial $25.00 fee in such an adverse action. In Rodeheaver
v. Alridge, 601 S.W.2d 51. 54 (Tex. Civ. App. - Houston [lst Dist.]
1980, writ ref'd n.r.e.), the court stated that
A reading of .kcticle 3930(b) shows that the
$25.00 fee which the county clerk is to collect
for each filed aiverse action or contest covers
not only the clerk's services for the initial
filing of the act!.onbut 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 at the time the fee is
collected.
In Attorney General Op,lnionJM-168, we stated that supplemental
instruments filed in conneci:ionwith an ancillary probate action are
subject to the fees prescribed by paragraph B(l)(b)(i) of article
3930(b) if the instruments are filed after the inventory and appraise-
ment have been approved or after the inheritance or estate tax receipt
has been filed. We now con'zludethat, other than the initial $25.00
fee, no fees are authorize3 for the filing of pleadings and legal
instruments in adverse and ancillary actions in the probate courts.
To the extent that Attorney G'eneralOpinion JM-168 conflicts with this
conclusion, it is overruled.
p. 1577
I .
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Ronorable Henry Wade - Page 5 (JR-3-346)
SUMMARY
County clerks s,re authorized to charge an
initial fee of $25.00 to be paid by the party
initiating an adverse action or contest in a
probate court. An additional fee is not
authorized for the filing of pleadings and legal
instruments by the defendants in adverse actions
in a probate court.
($z;&
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney Gsrueral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1578