Untitled Texas Attorney General Opinion ( 1963 )

Honorable Joe Resweber Opinion No. C-160
County Attorney
Harris County Re: Fees to be collected
Houston 2, Texas by County Clerks under
Article 3930, V.C.S.,
Dear :!jr.3esweber: and related question.
You have requested the opinion of this office as to
the proper fees to be collected by'county Clerks under Arti-
cle 3930, Vernon's Civil Statutes. In this connection you
have posed certain questions, and asked for our interpreta-
tion of the proper fee to be charged in each case.
At the outset, we must note that Article 3930 was
amended in 1957 by Acts 1957, 55th Legislature, p. 477, ch.
228. Section 2 of the 1957 amendment provides that "All laws
or parts of laws in conflict with the provisions of this Act
are hereby repealed to the extent of conflict only." In the
brief accompanying your request, it is concluded that some
fourteen fee items from the old statute do not conflict with
the new amendment, and were thus left in force. With this
conclusion we cannot agree.
Section 1 of the amendment reads in part as follows:
"Section 1. Article 3930 of the Revised
Civil Statutes of Texas, 1925, as amended by
Acts 1945, 49th Legislature, Regular Session,
Chapter 368, Section 4, is amended to read as
follows: . . . ' (Emphasis supplied).
The emphasized portion makes it clear that the amend-
ment is to completely supplant the preceding form of the Act,
and as of the effective date of the 1957 amendment a new
county clerk fee bill has been in operation. The fact that
a specific revocation clause is not-present in the 1957 amend-
ment is immaterial, inasmuch as the words used have the same
effect.
With reference to the following specific fees under
Article 3930, Vernon's Civil Statutes, you have asked certain
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Hon. Joe Resweber, page 2 (c-160)
questions:
(1) "Filing each paper, except subpoenas
and other process 6
51 .25"
Under this item you have inquired whether the charge
of 256 is applicable to the filing of bonds, orders, final
decrees, charge of court, verdict of jury, petition with
several exhibits attached, and exhibits presented separate-
ly. These seven items are complete in themselves, and would
each carry a~254 filing fee.
You have also asked under (1) if citations and the re-
turns thereon, and other writs and returns are exempt from
filing charges. Citations and writs, together with returns
thereon are process, and thus exempt from any filing charge
under this fee item.
(2) "Issuing each citation including
copy thereof $1.25"
Under this item, you have asked of the following charges
are correct:
Issuing citation and 1 copy for 1 defendant $1.25
Issuing citation and 2 copies for 2 defend-
ants $2.50
These charges are correct since separate citation is
required for each defendant.
(3) "'Recordingreturn of any writ, when
each return is required by law to
be recorded $ .50”
Under this item you have inquired whether the returns
on writs of sequestration, attachment and garnishment are
exempt from such charge. The law requires such writs to be
recorded in order to be effective, therefore the returns are
not exempt from the recording charge.
(4) "Recording, transcribing or copying
all papers or records required or
permitted by law to be recorded,
transcribed or copied, with or with-
out certificate or seal, for each
100 words, not otherwise provided
for s .20”
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Hon. Joe Resweber, page 3 (c-160)
You have asked whether the above shown fee provision
authorizes a recording charge for petitions, citations, an-
swers, motions, exhibits, bonds, subpoenas, writs, verdict
of the jury, and orders of court (not final).
There is nothing in the statutes that would require
recording petitions, citations, answers, motions, exhibits,
bonds, subpoenas, writs, or verdict of the jury. Such docu-
ments are filed and remain in the clerk's files but are not
recorded. No recording fee may be charged for these items.
It is well~settled that all orders of the court, final
or not final, must be entered of record. Ex parte Rains, 113
Tex. 428, 257 S.W. 217 (1923). Thus, a recording fee is proper
under this item for orders of the court (not final) since
final orders of the court are charged under another fee item.
Recording the return on a writ is provided for in (3)
supra.
(5) You ask whether all of Article 3930, Vernon's
Civil Statutes (the old law) has been superseded by the 1957
amendment to Article 3930. The answer is yes, the reasons
having been already discussed.
Your other fee statute questions being dependent upon
a negative answer to (5), there is no necessity of answering
them.
You have further asked for the opinion of this office as
to whether the provisions of Article 3926, Section 2, Vernon's
Civil Statutes, apply to the judges of the Harris County Courts
at Law. The applicable portion of this statute is quoted:
"2. For each civil cause finally
disposed ofby'him by trial or otherwise,
Five Dollars ($5), to be taxed against the
party cast in the suit; . . ."
The first Harris County Court at Law was created in 1911,
by Article 1970-76, Vernon's Civil Statutes. At that time,
Article 1970-90 provided that the judge oflthe County Court at
maw was to receive a certain salary, and . . . shall collect
the same fees as are now established by law relating to county
judges, . . .' In 1929 Article 1970-90 was amended to provide
a salary increase for the judge of the County Court at Law,
and the fee provision was omitted. Since that time several ad-
ditional County Courts at Law have been created in Harris County,
and the legislative enactments have uniformly omitted the fee
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Hon. Joe Resxeber, page 4' (C-160)
provision.
11:is interesting to note that many other counties have
been provided with County Courts at Law (El Paso, Zexar,
Tarrant, Dallas, Travis, Lubbock, Hidalgo, Nueces, Galveston,
Taylor, Ector, Nolan, McLennan, Cameron, Potter), and that
each of these courts is directed to collect the same fees as
the regular county judge. Harris County is the only ,onewhere-
in the judges of the County Courts at Law are not specifically
directed to collect fees. It is fairly clear that what :ie
have here is a perpetuated omission. Nevertheless, this office
may not read back into the law that v;hichhas been omitted so
many times and over so many years.
A provision regarding collection of fees must be strict-
ly construed. This office must hold that, since the statutes
creating the Harris County courts at maw (Articles 1970-76, et
seq.) do not contain a provision authorizing the collection of
fees under Article 3926, such fees may not be collected.
S UMM A RY
The 1957 amendment to Article 3930, Vernon's
Civil Statutes, completely suppiants the former
county clerk'fee statute.
The judge of the County Court at La:;'
of Harris
County may not coilect the fees generally au-
thorized to be collecc;edby county judges.
Yours very truly,
'?AGGONERC?RR
Attorney General
MLo:ms Assistant Attorney Genera?
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Hon. Joe Resweber, page 5 (c-160)
APPROVED:
OPINION COMMITTEE
I\'
. V. Geppert, Chairman
Bill Allen
Linward Shivers
Robert Davis
Jack Norwood
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone
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