Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS
June 25, 1987
Honorable Mike Driscoll Opinion No. JM-727
Harris County Attorney
1001 Preston, Suite 634 Re: Duty of district clerk to file
Houston, Texas 77002 and docket improperly tendered
documents
Dear Mr. Driscoll:
You have requested our opinion on a number of questions relating
to the duty of the district clerk in connection with the filing and
docketing of improperly tendered documents. A number of the questions
you have asked are not accompanied by a brief giving the conclusion of
the briefrr and the reason which support his views. See V.T.C.S. art.
4399, §(c)(l). Consequently, they are not in compliance with article
4399, section (c)(l), V.T.C.S., and we have not attempted to answer
these questions.
We address the following questions:
1. If a document is tendered without a
statutory fee prescribed by section 51.317 of the
Government Code and/or affidavit of inability to
pay costs in accordance with 145, Texas Rules of
Civil Procedure, and/or other applicable rules and
statutes, is the document 'filed' upon such
tender?
In Arndt V. Amdt, 709 S.W.2d 281 (Tex. App. - Houston [14th
Dist.] 1986, no writ), the court stated:
The longstanding rule in Texas is that docu-
ments are filed with the district clerk when
tendered. &, Hanover Fire Insurance Co. V.
Shrader, 33 S.W. 112 (Tex. 1895); Beal V,
Alexander, 6 Tex. 532 (Tax. 1838); Plummer V,
Roberson, 666 S.W.2d 656 (Tex. App. - Austin 1984,
writ ref'd n.r.e.1. The purpose of the rule is to
protect a diligent party-from being penalized by
the error or omission of a court clerk. Standard
Fire Ins. Co. V. La Coke, 585 S.W.Zd 678 (Tex.
1979).
P
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Honorable Mike Driscoll - Page 2 (JM-727)
We have discovered no case involving the
failure or refusal of a clerk to file a document
because fees were not tendered. One case does
qualify the rule in that respect, however. In
Civil Service Commission of Lufkin V. Crager, the
court noted a document was filed when tendered 'in
the absence of some statute providing that fees be
paid or some other thing done [sic] or performed
before filing.' 384 S.W.2d 381, 383 (Tex. Civ.
APP. - Beaumont 1964, writ ref'd n.r.e.).
The statute governing fees for filing, art.
3927, was amended June 3, 1985, effective
September 1. 1985. On June 13, 1985, the
legislature enacted 151.317 of the Government
Code, replacing and repealing art. 3927, effective
September 1, 1985. The saving provision of the
Government Code, 1311.031. provides, however, that
'the repeal of a statute by a code does not affect
a* amendment . . . of the statute by the same
legislature that enacted the code. The amend-
ment . . . is preserved and given effect as part
of the code provision that revised the statute so
amended. . . .'
Section 51.317 provides '[tlhe district clerk
shall collect at the time the suit or action is
filed the fees provided by Subsection (b) of the
section for services performed by the clerk. . . .
(b) The fees are . . . motion for new trial . . .
$15.' Art. 3927, as amended, reads, in relevant
portions, as follows: 'The clerks of the district
courts shall receive the following fees for their
services: (1) the fees shall be due and payable,
and shall be paid at the time the suit or action
is filed . . . motion for new trial . . . $15.'
Art. 3927 has had that same wording since 1969.
It is apparently the attempted change from the
passive to active voice in the statute -- from
'shall receive . . . the fees . . . [which] shall
be paid' to 'shall collect . . . the fees' -- that
has led to the practice in at least one district
of refusing to filestamp documents until fees are
tendered.
We note, however, the time limit when fees are
due is unchanged. They are due 'at the time
the suit or action is filed,' a phrase not
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Honorable Mike Driscoll - Page 3 (JM-727)
particularly meaningful to a motion for new trial.
While we firmly believe fees due to a clerk should
be paid promptly, we nonetheless are reluctant to
change a long-standing rule without a clearly
worded statute, unhampered by a preserved amend-
ment , mandating such a change. We, accordingly,
decline to do so, even though the legislature by
its enactment of §51.317 may have intended to
assist court clerks in the sometimes onerous task
of fee collection. (Emphasis in original).
709 S.W.2d at 282.
Accordingly, it is our opinion that documents are filed with the
district clerk when they are tendered.
6. Where the pleadings or instruments tendered
for filing have sufficient fees, is the district
clerk required to file such documents if no
signature of the attorney/pro se is on the
pleading or instrument as required under Tex. R.
Civ. Proc. 45(d), 57, 78 and 83?
Rule 45 of the Texas Rules of Civil Procedure, provides:
Pleadings in the district and county courts shall
(d) Be in writing, signed by the party or his
attorney, and be filed with the clerk.
Rule 57 of the Texas Rules of Civil Procedure states:
Every pleading of a party represented by an
attorney shall be signed by at least one attorney
of record in his individual name, whose address
shall be stated. A party who is not represented
by an attorney shall sign his pleading and state
his address.
In Frank 'I. Corbett. 682 S.W.2d 587 (Tex. App. - Waco 1984, no
writ), the court said:
The answer should have been signed by appellant or
his attorney, Rules 45 and 57, Vernon's Tex. Rules
CiV. Proc., but this signing is only a formal
requisite and the lack of it did not affect the
efficacy of the answer as a contest of appellee's
suit.
-w-c. Turnbow Petroleum Corporation V.
Fulton, 194 S.W.2d 256, 257 (1946).
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Honorable Mike Driscoll - Page 4 (JM-727)
682 S.W.2d at 588. 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. wrx ref'd); Attorney General Opinion
Nos. JM-694 (1987); m-166 (1984); cf. Attorney General Opinion JM-533
(1986). It is our opinion that theclerk should file the pleading
even though the signature of the attorney (or the party not
represented by an attorney) is not on the pleading.
8. Where a signature appears on the original
or responsive pleading, and a copy of the said
pleading without a signature is filed by the party
to be sent with citation, is the district clerk
required to conform the unsigned copy before
sending citation for service by a constable or
sheriff?
Rule 101 of the Texas Rules of Civil Procedure provides:
The party filing any pleading upon which citation
is to be had shall furnish the clerk with a
sufficient number of copies thereof for use in
serving the parties to be served, and when the
copies are so furnished the clerk shall make no
charge therefor.
Rule 101 provides that the party filing the pleading "shall
furnish the clerk with a sufficient number of copies thereof for use
in serving the parties." We believe that it is not the function of
the clerk to add to or delete anything from the copies of petitions
furnished by the party pursuant to Rule 101. We believe our answer to
this query is dispositive of your questions numbered 10 and 11 in
which you ask:
10. Where documents are presented for filing
with sufficient fees, is the district clerk
required to file them if a signature, required to
be verified or sworn to, is not so verified or
sworn to?
11. Where documents are presented for filing
with proper fees, is the district clerk required
to accept for filing the same where an exhibit,
affidavit or other instrument filed under Rule 59
of the Texas Rules of Civil Procedure is stated as
being attached but is not in fact attached?
An exception to our foregoing conclusion occurs when pleadings
are misnumbered. See also Prop. Code 011.004 (county clerk must
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Honorable Mike Driscoll - Page 5 (JM-727)
record instruments that are properly acknowledged according to law).
The Texas Rules of Civil Procedure state:
Rule 23.
It shall be the duty of the clerk to designate
the suits by regular consecutive numbers, called
file numbers, and he shall mark on each paper in
every case the file number of the cause.
Rule 24.
When a petition is filed with the clerk he
shall indorse thereon the file number, the day on
which it was filed and the time of filing, and
sign his name officially thereto.
We believe these rules provide the answer to the following
question:
12. Where documents are presented for filing
with proper filing fees, or where no fee is
required, and where the case number is mis-
numbered. which misnumber may be the case number
of another unrelated case,
(a) What duty, if any, does the district
clerk have in identifying the proper case
number?
In your last question you ask:
14. Where no copies or an insufficient number
of copies are furnished at the time a request for
service of citation occurs, may the district clerk
make the necessary copies, issue process, and send
a fee bill at the time the service is performed to
the requesting party?
Rule 101 of the Texas Rules of Civil Procedure in setting forth the
requisites of a citation states:
It shall state the date of the filing of the
petition, its file number and the style of the case,
and the date of issuance of the citation, be signed
and sealed by the clerk, and shall be accompanied by
a copy of plaintiff's petition. . . . The party
filing any pleading upon which citation is to be had
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Honorable Mike Driscoll - Page 6 (JM-727)
shall furnish the clerk with a sufficient number of
copies thereof for use in serving the parties to be
served, and when the copies are so furnished the
clerk shall make no charge therefor. (Emphasis
added).
We are of the opinion that when no copies or insufficient numbers
of copies of the petition are furnished by the party, the clerk may
make the necessary copies and make a charge therefor.
SUMMARY
Documents are filed when they are tendered to
the district clerk. Arndt v. Arndt, 709 S.W.2d
281 (Tex. App. - Houston [14th Disc] 1986, no
writ). The clerk should file the pleading even
though the signature of the attorney (or the party
not represented by an attorney) is not on the
pleadings. See Frank v. Corbett, 682 S.W.2d 587
(Tex. App. -Waco 1984, no writ). The district
clerk should not add to nor delete anything from
the copies of documents furnished by a party
except that the clerk should endorse the correct
file number thereon. Rules 101, 23 and 24 of the
Texas Rules of Civil Procedure. When no copies or
insufficient copies of the petition are furnished
by a party. the clerk may make the copies and make
a charge therefor. Tex. R. Civ. Proc. 101.
J NJ&
Very truly your
A
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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