Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
April 16, 1981
MARK WHITE
Attorney General
Honorable David G. Lewis Opinion No. MW- 325
supremecourt Building Sherman County Attorney
P.O.BOX12548 P. 0. Box 986 Re: Payment of filing fees and
Austin,TX. 78711 Stratford, Texas 79084 court costs
512,4X-2501
Dear Mr. Lewis:
You have asked two questions regarding the collection of fees by
public officials in your county. Your first question concerns article 3930a-1,
V.T.C.S., which reads in pertinent part:
(1) In addition to the fees authorized and required
by Article 3930 of this title, as amended, county
clerks and county recorders are authorized and
required to collect the fees specified by this article
for services rendered by them to all persons, firms,
corporations, legal entities, governmental agencies,
and governmental representatives. Unless otherwise
specified, each fee shall be collected at the time the
service is rendered. (Emphasis added).
You ask whether the county clerk is required to follow the mandatory
language of this provision and insist on payment of the filing fees at the
time of presentment for filing without incurring civil liability. It is
suggested that the clerk might be liable in damages if a subsequent lien were
filed and recorded in the county after the clerk received a deed of trust but
before he recorded it due to non-payment of filing fees.
Ordinarily, the duties of the clerk of the court are purely ministeriaL
Benge v. Foster, 47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932, writ ref’d).
The dutv described in article 3930a-1. V.T.C.S.. is such a ministerial dutv.
The courts will not hold the clerk liable for da&ages resulting in part from
his performance of his statutory duty. See Harris County v. Wilkinson, 507
S.W.2d 848 (Tex. Civ. App. - Houston mh Dist.1 1947, writ repd n.r.e.).
See also Burleson v. Shaw, 516 S.W.2d 687 (Tex. Civ. App. - Eastland 1974,
writ’&. We believe the clerk must comolv with the article 393Oa-1
requirement of timely payment and he may not-be held liable in damages for
performance of his statutory duty.
You next ask whether a justice of the peace may assess and collect
court costs against state, county, city, school and hospital district taxing
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Honorable David G. Lewis - Page Two (MN-325)
authorities in delinquent tax suits. Article 7297, V.T.C.S., exempts the state and
county from costs in delinquent tax suits. Article 7343, V.T.C.S., extends the same
advantage to cities and school districts. Costs arising out of tax collection suits may
not be ~assessed against school districts, El Campo~fndependent School District v.
Kimmey, 571 S.W.2d 865 (Tex. 1978), or a city or county, County of Dallas v. Yellow
Cab Co., 573 S.W.2d 44 (Tex. Civ. ADD.- Eastland 1978, writ rePd n.r.e.1. However,
we find no statute exempting hospital‘districts from payment of such costs. Thus, we
believe court costs may be collected from hospital districts in delinquent tax suits.
SUMMARY
The county clerk is required to follow the mandatory
language of article 3930a-1, V.T.C.S., and will not incur civil
liability for doing so. A justice of the peace may not assess and
collect court costs against the state, county, city or school
taxing authorities in delinquent tax suits. He may assess and
collect such costs against the hospital district taxing authority.
./--Y
r MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chaiman
Jon Bible
Walter Davis
Rick Gilpin
P. 1046