Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Ncvember 2, 1984
JIM MAlTOX
Attorney General
Honorable Henry Wade Opinion No. m-223
SupremeCourtBuilding
P. 0. Box 12549 District Attorney
Austin. TX. 78711. 254S Condemnation Section Re: County clerk’s fee for
5121475.2601 Services Building filing and recording a certif-
Telex 9101874-1387
Dallas, Texas 752x! icate of service under the
Telecopier 51214750268
probate code
714 Jackson. Suite 700 Dear Mr. Wade:
Dallas. TX. 75202.4506
214/742-8944
You ha&reques,ted our opinion regarding fees of office which the
county clerk may collect in certain probate matters. Specifically,
4824 Alberta Ave.. Suite 190 you have asked what fees the county clerk is authorized to charge for
El Paso. TX. 799052793 the filing of certefn documents generated as a consequence of eschcat
91M33.3184 of a portion of the deceased’s estate to the state of Texas.
11 Texas, Sulfa 700
You ask whether the county clerk may charge a $4.00 fee for
mston. TX. 77002.3111 filing and recording a certificate of service executed pursuant to
7131223-5886 section 428 of the Texas Probate Code. Section 428 requires the clerk
of the probate court to mail a certified copy of the court escheat
order to the state treasurer. The clerk is required under section 426
606 Broadway. Suite 312
Lubbock. TX. 79401.3479
to record a certificate from the postmaster stating that such a
8061747-5238 certified copy of court order was properly mailed to the state
treasurer. Sectlot! 420 provides:
4309 N. Tenth. Suite B
Whenever an order shall be made by the court
McAllen. TX. 785ol.lS85
51%02-4547
for an executor or an administrator to pay any
funds to i:he State Treasurer under the preceedlng
provisions of this Code. the clerk of the court in
2M) Main Plaza. Suite 400 which .su:h order is made shall mall to the State
San Anhnio. TX. 192052797
Treasure:: a certified copy of such order within
51212254191
thirty days after the same has been made. When-
ever the clerk mails such copy. he shall take from
An Equal OpportunityI the postmaster with whom it is mailed a certi-
Atfirmalive Action E~plovw ficate stating that such certified copy was mailed
in his oEfice. addressed to the State Treasurer at
Austin, Texas, and the date when it was mailed,
and shall record such certificate.
You have also asked what fee, If any, the county clerk is required to
collect for recording the receipt filed by an administrator of an
estate pursuant to section 430, which provides:
p. 1001
Ronorable Henry Wade - Page i (JM-223)
Whenever an exetmtor or administrator pays the
State Treasurer ;u,y funds of the estate he
represents, under the preceeding provisions of
this Code, he shall take from the State Treasurer
a receipt for such payment, with official seal
attached, and shall file the same with the clerk
of the court ordering such payment; and such
receipt shall be ::trcorded in the minutes of the
court.
And third, you have asked vtat fee may be collected for certifying a
copy of the court’s escheat order as is required under section 428.
It is the court clerk’s legal duty to make the certification and
record the certificate as i:s required by section 428. The adminis-
trator of the estate does not request the certification under section
428, nor offer for filing the certificate. The administrator does,
however, present for filing and recording the receipt of payment from
the state treasurer under section 430. A prior opinion of this office
concluded that the state treasurer was not required to pay any fees to
the county clerk for the certification required under section 428 of a
court order transmitted to the state treasurer’s office. Attorney
General Opinion M-170 (1967). This opinion reasoned that the section
428 certification was not a “service rendered” for purposes of the
county clerk fee statutes, articles 3930 and 3930(b). V.T.C.S. The
certification and certificat.e filing under section 428, we believe,
are internal procedures in the county clerk’s office and are not
subject to the county clerk fee statutes which specify the fees for
“services rendered.” V.T.C.S., arts. 3930, 3930(b).
The probate fees pemil:t:ed to be collected by the county clerk
are set by article 3930(b). A general probate fee for the adminis-
tration of an estate is $35.00, which fee covers the required issuance
of all writs, process and
all other instruments. documents, or papers
authorized, permitted or required to be issued by
said county clerk or said clerk of probate courts
on which a return uust be recorded. , . .
V.T.C.S. art. 3930(b), §lB(:,). This general fee includes “all other
clerical duties in connection with such probate court docket.” &&
We believe therefore that the general fee required for the filing and
administration of an estate! covers the certification of the court
order required by section l,28 and the recording of the certificate
that such certified copy has been mailed to the state treasurer. With
regard to the filing of the receipt by the administrator. hovever, we
believe that the county clerc may collect the fee specified by article
3930(b), section -lB(l)(b)(i:‘, which provides for the fee for filing
p. 1002
Ronorable Henry Wade - Page 3 1:~-223)
and recording legal documents and instruments in au open probate
docket.
SUMMARY
A fee may not be collected by 6 probate court
clerk for certifying a court order or filing a
certificate as required under section 428 of the
Probate Code. A filing fee may be collected for
the filing by an ahrdnistrator of his receipt from
the state treasure!' of the escheat payment.
JIM MATTOX
Attorney General of Texas
TOH GREEN
First Assistant Attorney Gens?ral
DAVID R. RICHARDS
Executive Assistant Attorney 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 Hoelllnger
Nancy Sutton
p. 1003