Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas October 24, 1984 JIM MATTOX Attorney General Supreme Court Bullding Eonorable Mike Driszoll Opinion No. JM-216 P. 0. BOX 12548 Harris County Attorwy Austin, TX. 7871% 2543 1001 Preston, Suite 634 Re: Whether a district clerk 512/4742501 Boueton, Texas 7 7,102 must docket a transferred case Telex 9101874.lM7 before the filing fee is paid Telecopier 5W475.0266 Dear Mr. Driscoll: 714 Jackson. Suite 700 Dallas. TX. 75202.4508 You have requested our opinion regarding a procedural matter under the Texas Rules of Civil Procedure. You ask whether the Harris 2141742-0944 County district ,::Lerk is required to assign and docket a case 4824 Alberta Ave.. Suite 180 transferred to his county pursuant to rule 89 before a filing fee is El Paso, TX. 7SSO5-2793 paid. You have a:lllo asked how such a case may be dismissed if such 915m3aS4 filing fee is not p~nid. IO1 Texas, Suite 700 Rule 89 of t:>e Texas Rules of Civil Procedure sets out the .,ous,on, TX. 77002.3111 procedural steps required when a case has been transferred to another 7131223-5888 county under a transfer of venue. Portions of the rule follow: If a mation to transfer venue is sustained, the 800 Broadway. Suite 312 Lubbock. TX. 79401-3479 cause shall not be dismissed, but the court shall 808/747-5233 transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is 43OS N. Tenth. Suite S transferred shall be taxed against the plaintiff. ,&Alla”, TX. 7SMl~lSSS 512IS82-4547 The clerk shall make up a transcript of all the orders :n;lde in said cause, certifying thereto officially under the seal of the court, and send 200 Main Plaza. Suits 400 it with l:he original papers in the cause to the San Antonio. TX. 782052797 clerk 01’ the court to which the venue has been 5121225-4191 changed. . . . After the cause has been transferred, as above provided for the clerk of the court to which the cause has been transferred shall ~.il notification to the plaintiff or his attorney that transfer of the cause has been completed, that the filing fee in the proper court is due and payable within thirty days from the mailing cf such notification. and that the case may be tlj.smissed if the filing fee is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the expiration p.. 969 Ronorable Mike Driscoll - Page 2 (J&216) of thirty days a:f,:er the mailing Of notification to the parties ox their attorneys by the clerk that the papers h,ave been f,iled in the court to which the cause has been transferred; and if the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned, upon its own motion or the motion of a party, ma:{ dismiss the cause without prejudice to the refiling of same. Tex. R. Civ. Proc. 89. It is our opinion th#%,: rule 89, when read in conjunction with article 3927, V.T.C.S., door! not require the district clerk to assign and docket a case transferred under a transfer of venue until the required filing fee of $23.00 Is paid. Under rule 89, the clerk of the court to which a caho is transferred is required to receive certified copies of the papers. files and orders entered in the case and to notify the plaintifE,, that the case has been “transferred” and that a filing fee is due. l,f the filing fee is not paid, any district court “to which the case might have been assigned” may dismiss the cause. This last phrase, contained in rule 89, we believe, implies that the case is not “assigned,” that is, placed on the docket of a particular court, before the filing fee is paid. In any event, article 3927, which controls in the event of a conflict with a rule of procedure promulgated by the supreme court, clearly provides that an ixtion cannot be docketed before the filing fee is paid. The statute yovides as follows: The clerks of .rhe district courts shall receive the following fers for their services: (1) The fees in this Subsection shall be due and payable, and shall be paid at the time suit or action is filed. For each sd.t filed, including appeals from inferior courts . . . . . . . . . . . . . $25.00. V.T.C.S. art. 3927. With regard to your inquiry concerning the manner of dismissal of cases for which filing fees are not paid, we believe that any district judge of a court in the transferee county ro which the case might have been assigned would have the authority under rule 89 to enter an order that the case is dismissed, notwithstanding the fact that it has not been assigned to any particular court within that county. -See p. 970 lionorable Mike Driscoll - Pqe 3 (m-216) V.T.C.S. art. 199a (authority for local rules relating to the assignment of cases). SUMMARY Cases transfermd under a change of venue need not be assigned and docketed in the transferee county until a fi:L:ing fee is paid. JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney Gaxral DAVID R. RICHARDS Btecutive Assistant Attorne? 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 Moellinger Nancy Sutton p. 971