THE ATTORNEY GENERAL OF TEXAS The Honorable Joe Resweber Opinion No. H-43 County Attorney Harris County Courthouse Re: Is the County Clerk Houston, Texas 77002 authorized to collect fees for filing papers for discovery proceed- ings in aid of enforce- ment of a final judgment pursuant to Rule 621a of the Texas Rules of Civil Dear Mr. Resweber: Procedures? Your letter requesting our opinion asks whether the County Clerk is authorized to collect fees for filing papers for discovery proceedings in aid of the enforcement.of a final judgment pursuant to Rule 621a of the Texas Rules of Civil Procedure. Rules 62la, effective only January 1, 1971, authorizes the holder of a judgment to maintain discovery proceedings in the court in the same suit in which the judgment was rendered for the purpose of obtaining information to aid in the enforcement of the judgment. Nothing is said about fees. However, in 1967 the Legislature adopted Article 3930 (b) Vernon’s Texas Civil Statutes (Acts 1967, 60th Leg., p. 1785, Ch. 680). The statute, in appropriate paragraphs A, B, C, D, E and F, covers six differ- ent situations in which fees are collectible. We are concerned with paragraphs A and C. Paragraph A, generally having to do with fees for county civilcourt dockets, by its terms, applies to proceedings “while the docket is still open:” p. 173 The Honorable Joe Resweber, page 2 (H-43) “For each cause or action, or docket in County Civil Courts; for filing, or filing and registering. or filing and recording, and for docketing and including taxing costs for each and all applications, complaints, petitions, returns, documents, papers, legal instruments, records and/or oroceedings; for issuing, includ- ing the recording of the return thereon, each and all citations, notices, subpoenas, commissions to take depositions, executions while the docket is still open, garnishments before judgments, orders, writs, processes, or any and all other instruments, documents or papers authorized, permitted or required to be issued by said county clerk or said clerk of county courts on which a return must be recorded; for all attendance6 which a return must be recorded; for all attend- antes in court as clerk of court; for impaneling a jury; for swearing witnesses; for approving bonds involved in court actions, for administering oaths; and for all other clerical duties in connection with such county civil court docket: . . . ” It requires a fee of $10.00 in most suits “which fee is to be paid but one time in each cause or docket, or suit, and which fee excludes the items listed in Paragraph B, C, D and E of this Section 1: . . . . ” Paragraph B provides for fees for probate court dockets. Para- graph C is as follows: “Where no cause is pending, as is contem- plated in Section 1, Paragraphs A and B hereof, the clerk shall charge as follows for the hereinafter listed services, for issuing (including recording of the returns thereon), each citation, notice, commis- sion to take depositions, execution, order, writ, process, or any other instrument, document, or paper authorized, permitted or required to be issued by said county clerk or said clerk of county courts on which a return must be recorded: p. 174 The Honorable Joe Rerweber, page 3 (H-.43) “(i) For irsuing each such instrument, document, or paper, including the original and one copy and the recording of the return, a fee, to be paid at the time each order is placed, of . . . $3.00. . . .” Paragraph D has to do with issuing certificates, certified copies, etc. Paragraph E applies to Letters Testamentary, Letters of Guardianship and similar instruments. Subparagraph F applies to the filing and keeping of wills held for safekeeping. As we construe Article 3930(b), if at the time the provisions of Rule 621a are invoked the original cause of action is still pending upon the docket of the court, the successful party may file or require the issuance of what- ever papers are necessary under Rule 621a without incurring liability for any additional fee. On the other hand, if there is no cause pending and the proceeding must be brought under Paragraph C, then the Clerk is entitled to a charge of $3.00 for issuing each instrument, document, or paper, but not for merely filing the same. If, a’s may be true in discovery proceedings under the amended rules, the Clerk is not called upon to issue any instru- ments, we see no authority for him to charge a fee. It is our construction of Articles 3930 and 3930A-1 that they apply only to the non-court aspects of the functions of the County Clerk’s office and that eubsection (9) of Article 3930 does not authorize the Clerk to set a fee for filing instruments in court proceedings. SUMMARY Article 393013, Vernon’s Texas Civil Statutes, governs fees to be charged in a proceeding brought under Rule 621a of the Texas Rules of Civil Procedure. If the action is still pending upon the docket of the court at the time such proceedings are instituted, they fall within the one time filing fee and no additional fee is to be charged. If no action is pending at the time those proceedings are instituted, the County Clerk p. 175 . 1 The Honorable Joe Resweber, page 4 (H-43) is entitled to a fee of $3.00 for each instrument he issues, but is not entitled to charge a fee for the mere filing of instruments prepared by otherr. Very truly yours, JOHN L. HILL Attorney General of Texas APPRgVED: r---Y &$iYi!f DAVID M. KENDALL, Chairman Opinion Committee p. 176