Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORNEY GENERAL
OF TEXAS
July 1, 1987
Honorable Gary E. Kersey Opinion No. JM-735
Kerr County Attorney
317 Earl Garrett Re: Whether a district clerk may
Kerrville, Texas 78028 require a deposit for court costs
in an application for a protective
order under section 71.04 of the
Family Code
Dear Mr. Kersey:
You ask whether a district or county clerk may require a person
applying for a protective order pursuant to section 71.04 of,the Texas
Family Code to post a deposit for court costs as a condition of filing
the application. We understand you to ask only about the district or
county clerk's duty to file applications for protective orders and not
the clerk's duty to perform any other services. In bur opinion,
neither the district clerk nor the county clerk may place such a
condition on the filing of an application for a~protective order.
The Family Code offers protection in the form of a protective
order to family or household members from the violent acts or threats
of violence of another member of the family or household. Section
71.04(b) of the code allows one or more members of a family or
household to apply for an order restraining another member of the
family or household from committing further acts of "family violence."
It also authorizes a prosecuting attorney to apply for a protective
order for the protection of any person alleged to be a victim of
family violence. "Family violence" is defined as the intentional use
or threat of physical force against a member of a family or household
by another member of the family or household, but it does not include
the reasonable discipline of a child by a person having that duty.
Family Code §7l..Ol(b)(3).
Proceedings under chapter 71 of the Family Code are commenced by
the filing of the application for a protective order with the clerk of
the court. Id. 571.02. Section 71.04(d) sets the fee for'filing an
application:
The fee for filing an application is $16 and is
to be paid to the clerk of the court in which the
application is filed. If the applicant files a
sworn statement that the applicant is unable to
pay the filing fee and other court costs, the
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Honorable Gary E. Kersey - Page 2 (m-735)
court, on a finding that the statement is true,
shall waive the fee and costs that may be due or
become due from the applicant. A hearing on the
issue of the waiver of the fee and cost, if
requested by a party or if required by the court.
must be held within three days of the request by a
party or of the court's requirement. (Emphasis
added).
You write that the current practice in some clerks' offices is "to
require all the normal court costs in civil cases to be deposited
before a [plrotective [o]rder application can be filed and any action
taken." Essentially, you question the authority of the district or
county clerk to impose such a requirement on applicants for a
protective order.
As a general rule, a public officer has no authority to perform
acts not authorized or required of him by law. Duncan v. State, 67
S.W. 903 (Tex. Civ. App. 1902, no writ). The courts and this office
have repeatedly characterized the powers and duties of the district
clerk and county clerk as ministerial functions. See Benge v. Foster,
47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932. wx ref'd); Attorney
General Opinion Nos. JM-694 (1987); JM-166 (1984); cf. Attorney
General Opinion .JFl-533(1986). Sections 51.303 and 51.402 of the
Government Code govern the duties and powers of the district clerk and
county clerk, respectively. The first section provides the following:
(a) The clerk of a district court, in record
books kept for that purpose, shall:
(1) record the acts and proceedings of the
court;
(2) enter all judgments of the court under
the direction of the judge; and
(3) record all executions issued and the
returns on the executions.
(b) The district clerk shall keep in well-
bound books an index of the parties to all suits
filed in the court. The index must list the
parties alphabetically using their full names and
must be cross-referenced to the other parties to
the suit. In addition, a reference must be made
opposite each name to the page of the minute book
on which is entered the judgment in the case.
(c) On the last day of each term of the court,
the district clerk shall make a written statement
of fines and jury fees received. The statement
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Honorable Gary E. Kersey - Page 3 (JM-735)
must include the name of the party from whom a
fine or jury fee was received, the name of each
juror who served during the term, the number of
days served, and the amount due the juror for the
services. The statement shall be recorded in the
minutes of the court after it is approved and
signed by the presiding judge.
(d) The clerk of a district court may:
(1) take the depositions of witnesses; and
(2) perform other duties that are imposed
on the clerk by law.
Gov't Code 151.303. The duties of the county clerk are described in
the following provision:
(a) The clerk of a county court may:
(1) issue marriage licenses; and
(2) take affidavits and depositions.
(b) On the last day of each term of the court,
the clerk shall make a written statement of fines
and jury fees received since the last statement.
The statement must include the name of the party
from whom a fine or jury fee was received, the
name of each juror who served during the term, the
number of days served, and the amount due the
juror for the services. The statement shall be
recorded in the minutes of the court after it Is
approved and signed by the presiding judge.
(c) The clerk shall deposit fines and jury
fees received by the clerk in the county treasury
for the use of the county.
Id. 551.402. Neither provision expressly authorizes a district clerk
orcounty clerk to impose the deposit requirement you have inquired
about. The clerks of the district and county courts may require from
a plaintiff security for costs before issuing any process. but must
file petitions presented to them and enter them on the docket. Tex.
R. Civ. Proc. 142. See Attorney General Opinion Nos. JR-533 (1986);
S-42 (1953). Furthermare, clerks are required to issue process and
perform all other services required of them when a party who is unable
to provide security for costs files an affidavit with the clerk
stating that the party is too poor to pay the costs of court. Tex. R.
Cl". Prof. 145. See also Family Code 971.04(d). Rule 146 of the
Texas Rules of Civil Procedure permits a party required to post bond
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Honorable Gary E. Kersey - Page 4 (JM-735)
I
for costs to submit a deposit for such costs instead. The amount of
the deposit, however, is determined by the court and is intended to
cover only accrued costs:
In lieu of a bond for costs, the party required
to give the same may deposit with the clerk of
court or the justice of the peace .such sum as the
court or justice from time to time may designate
as sufficient to pay the accrued costs.
Tex. R. Civ. Proc. 146. See Mosher v. Tunnell, 400 S.W.2d 402 (Tex.
Civ. App. - Houston 1966, writ ref'd n.r.e.).
It is a longstanding rule in Texas that documents are filed with
the court clerk when tendered. Arndt v. Arndt. 709 S.W.2d 281 (Tex.
APP. - Houston [14th Dist.] 1986, no writ). It is evident, then, that
clerks may not refuse to file petitions presented to them simply
because the petitioner has yet to provide security for costs. To
permit the clerk to impose conditions on the filing of applications
for protective orders would, we believe, deny the applicant his
constitutional right to open courts:
All courts shall be open, and every person for an
injury done him, in his lands, goods, person or
reputation, shall have remedy by due course of
law.
Tex. Const. art. I. 113. LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.
1986). See Attorney General Opinion JM-533 (1986). Accordingly, a
district> county clerk may not condition the performance of a
ministerial duty -- G, the filing of an application for a
protective order -- on the applicant's payment of a deposit for court
costs.
SUMMARP
A district or county clerk may not require a
person applying for a protective order pursuant to
section 71.04 of the Texas Family Code to post a
deposit for court costs as a condition of filing
the application.
JIM MATTOX
Attorney General of Texas
MARY RRLLER
Executive Assistant Attorney General
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Eonorable Gary E. Kersey - Page 5 (JM-735)
JUDGE ZOLLIE STEAKLEP
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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