Does a Texas state agency have to pay county clerk filing, records, and courthouse-security fees?

Plain-English summary

When the Texas Railroad Commission plugs an abandoned oil or gas well, Natural Resources Code section 89.043(e) requires it to file a notice in the real property records at the county clerk's office. County clerks across the state had started rejecting those filings because the commission was not paying the usual recording fees. The commission's chair, Barry Williamson, asked the Attorney General whether the commission actually had to pay. The commission's argument leaned on Local Government Code section 154.004(b), which says that if a county officer is paid an annual salary, "the state or any county may not pay a fee or commission to the officer for the performance of a service by the officer." If that rule applied, salaried county clerks could not charge the State.

The Attorney General disagreed and concluded the commission had to pay three kinds of fees. The first two, the real property records filing fee and the records management and preservation fee, come from the county clerk fee schedule in section 118.011, which directs clerks to collect listed fees "for services rendered to any person." The office traced the history: in 1967 the legislature passed House Bill 80, which repealed conflicting fee provisions for county clerks, including the predecessor of section 154.004(b) (former article 3912e). As the office had recognized back in 1967, before House Bill 80 the State paid no such fees, but House Bill 80 made the State liable for them. So section 154.004(b) did not exempt the State from the section 118.011 fees.

The third fee, the courthouse security fee in section 291.007, was not part of the section 118.011 schedule, so the office analyzed it separately. Section 291.007(d) requires the county and district clerks to collect a one dollar fee for filing any document not already subject to a security fee, and the money goes into the courthouse security fund. The statute expressly says the local county is not liable for the cost, but it makes no similar exemption for the State or other political subdivisions. Reading that omission against the way the statute did mention the State elsewhere, the office concluded the legislature meant for the State to pay. And to the extent section 291.007(d) conflicted with section 154.004(b), the newer and more specific statute (section 291.007(d)) controlled. The bottom line: section 154.004(b) did not shield the commission from any of the three fees.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion is unusually time-bound. The opinion's own footnotes flag that the legislature was changing the very statutes at issue: a 1995 amendment (effective August 28, 1995) provided that the commission "shall not be charged a fee for the filing or recording of the notice" under section 89.043(e), and section 291.007 was set to be renumbered as section 291.008 on September 1, 1995. The opinion expressly says it does not consider the effect of the new well-notice amendment. Treat the specific fee conclusions here as historical; the statutes have been renumbered and amended since, so check the current Natural Resources Code and Local Government Code before relying on any rule mentioned here.

What the opinion meant at the time

For the Railroad Commission and other state agencies: At the time of the opinion, the commission could not rely on section 154.004(b) to avoid county clerk recording fees. The office read the 1967 House Bill 80 history as having already made the State liable for the fees in the section 118.011 schedule, and it read section 291.007(d) as reaching the State for the courthouse security fee. The opinion's footnote separately noted a 1995 amendment that would relieve the commission of the well-notice filing fee going forward, but the opinion itself did not decide that question.

For county clerks: The opinion supported clerks who insisted on collecting the real property records filing fee, the records management and preservation fee, and the section 291.007(d) security fee from the State when it recorded documents like the well-plugging notices, rather than treating the State as fee-exempt under the salaried-officer rule.

Common questions

Can a Texas county clerk charge a state agency the normal recording fees?
Under this 1995 opinion, yes. The office concluded that Local Government Code section 154.004(b), which bars paying a fee to a salaried county officer, did not exempt the State from the county clerk fee schedule in section 118.011, because a 1967 statute (House Bill 80) had already made the State liable for those fees.

Why didn't the salaried-officer rule in section 154.004(b) protect the State here?
Because the legislature had already addressed the conflict. House Bill 80 in 1967 repealed conflicting county clerk fee provisions, including the predecessor of section 154.004(b), and an opinion from that year recognized that the change made the State liable for the fees. The office also held that the more recent, more specific security-fee statute controlled over section 154.004(b).

Did the commission also have to pay the courthouse security fee?
Yes. Section 291.007(d) required a one dollar fee on filings not otherwise subject to a security fee, with the money going to the courthouse security fund. The statute exempted only the local county, not the State, so the office concluded the commission had to pay it.

Does this opinion still control the well-plugging notice fee?
Not necessarily. A footnote in the opinion points to a 1995 amendment, effective August 28, 1995, providing that the commission would not be charged a fee for filing or recording the section 89.043(e) notice. The opinion expressly declined to decide the effect of that amendment, so the well-notice fee answer changed shortly after this opinion issued.

Background and statutory framework

Natural Resources Code section 89.043 governs the commission's plugging of wells. Subsection (e) requires the commission to file a copy of the plugging notice in the county clerk's office and directs the clerk to record it in the real property records. The fees the clerks demanded came from several Local Government Code provisions: sections 118.011(a)(2) and 118.013(a) (the real property records filing fee for "filing and recording, including indexing"), sections 118.011(b)(2) and 118.0216 (the records management and preservation fee for services performed after filing), and section 291.007 (the courthouse security fee, added in 1993).

The dispute turned on section 154.004(b), which bars the State or a county from paying a fee or commission to a salaried county officer. The office found this in apparent conflict with section 118.011, the county clerk fee schedule, which (after a 1987 recodification) directs clerks to collect listed fees "for services rendered to any person," a term the Code Construction Act (Chapter 311, Government Code) defines to include any legal entity. The predecessor statute, former article 3930, V.T.C.S., had expressly listed "governmental agencies." The office resolved the conflict through legislative history: House Bill 80, enacted by the Sixtieth Legislature in 1967, repealed conflicting county clerk fee provisions, including former article 3912e (the predecessor of section 154.004(b)). The office relied on Attorney General Opinion M-134 (1967), which recognized that House Bill 80 "now requires fees to be paid by the State," and Attorney General Opinion M-168 (1967).

For the security fee, the office looked to the structure of section 291.007. Subsection (a) makes the security fee a taxable cost and says the county is not liable; subsection (b) addresses cost-shifting when the State or a political subdivision is the prevailing party; and subsection (d) sets the one dollar filing fee, deposited in the courthouse security fund (Local Gov't Code section 291.007(e); Code of Criminal Procedure article 102.017(c)). Because the statute exempted only the local county and not the State, and because section 291.007(d) was newer and more specific, the office applied the conflict-resolution rules in Government Code sections 311.025(a) and 311.026(b) to hold that section 291.007(d) prevailed over section 154.004(b). The office distinguished the requestor's cited authority, Attorney General Opinion JM-779 (1987), which dealt with district clerk fees under Government Code section 51.318, not county clerk fees, and cited Attorney General Opinion DM-283 (1994) construing section 291.007.

Citations

Statutes and authorities discussed:

• Natural Resources Code § 89.043(e) (commission must file and record well-plugging notice in county real property records)
• Local Government Code § 118.011 (county clerk fee schedule; subsections (a)(2) real property records filing fee and (b)(2) records management and preservation fee); § 118.013 (real property records filing fee); § 118.0216 (records management and preservation fee)
• Local Government Code § 291.007 (courthouse security fee; subsections (a), (b), (d), (e)); Code of Criminal Procedure art. 102.017 (courthouse security fund uses)
• Local Government Code § 154.004(b) (no fee to a salaried county officer from the state or county)
• Government Code §§ 311.025(a), 311.026(b) (Code Construction Act: later and more specific statute controls); Chapter 311 (definition of "person")
• Government Code § 51.318 (district clerk fees, distinguished)
• Former articles 3930 and 3912e, V.T.C.S. (repealed predecessors); House Bill 80, Act of May 25, 1967, 60th Leg., R.S., ch. 681

Prior Attorney General opinions relied on or distinguished:

• Attorney General Opinion M-134 (1967); Attorney General Opinion M-168 (1967) (House Bill 80 made the State liable for county clerk fees)
• Attorney General Opinion DM-283 (1994) (construing Local Gov't Code § 291.007)
• Attorney General Opinion JM-779 (1987) (district clerk fees under § 51.318, distinguished)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0360
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0360.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 3, 1995

Mr. Barry Williamson
Chair
Railroad Commission of Texas
P.O. Box 12967
Austin, Texas 78711-2967

Opinion No. DM-360

Re: Whether the Texas Railroad Commission is required to pay certain fees requested by county clerks (RQ-701)

Dear Mr. Williamson:

You ask whether the Texas Railroad Commission (the "commission") is required to pay certain fees when filing notices required by section 89.043(e) of the Natural Resources Code. Section 89.043 provides for the plugging of wells by the commission. Subsection (e) requires the commission to

file for record a copy of the notice in the office of the county clerk of the county in which the well is located. The copy of the notice filed in the office of the county clerk must contain [certain information about] the land on which the well is located. The clerk shall record the notice in the real property records of the county. The commission shall furnish a copy of the notice to a holder of a lien on the well or a nonoperator on that person's request.[1]

Nat. Res. Code § 89.043(e) (emphasis added) (footnote added). You state that county clerks have rejected filings under this provision for lack of fees. You suggest that county clerks have asked the commission to submit to fees provided by sections 118.011(a)(2) and (b)(2), 118.013, 118.0216, and 291.007(d)[2] of the Local Government Code.

Local Government Code sections 118.011(a)(2) and 118.013(a) provide for a real property records filing fee "for filing and recording, including indexing, in the real property records in the office of the county clerk a document that is authorized or required to be filed in those records." Local Gov't Code § 118.013(a). Local Government Code sections 118.011(b)(2) and 118.0216 provide for a records management and preservation fee "for the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk." Local Gov't Code § 118.0216. Local Government Code section 291.007, which was added in 1993, see Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 2, 1993 Tex. Sess. Law Serv. 3261, 3262, authorizes a commissioners court to impose a security fee to be charged at the time of filing civil cases and other documents.

Section 154.004(b) of the Local Government Code provides as follows: "If a county officer is paid an annual salary, the state or any county may not pay a fee or commission to the officer for the performance of a service by the officer." You suggest that section 154.004(b) precludes the State from paying the foregoing fees.[3] For the following reasons, we disagree.

First, section 154.004(b) is inapplicable with respect to the real property records filing fee and the records management and preservation fee set forth under section 118.011 of the Local Government Code. Section 118.011 of the Local Government Code, the county clerk fee schedule, was recodified in 1987. See Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 862. It now provides that "[a] county clerk shall collect the following fees for services rendered to any person." (Emphasis added.) The statutory predecessor to section 118.011, now-repealed article 3930, V.T.C.S., provided that "[c]ounty clerks and county recorders are hereby authorized and required to collect the following fees for services rendered by them to all persons, firms, corporations, legal entities, governmental agencies and/or governmental representatives." (Emphasis added.) The revisor's note following section 118.011 states as follows:

The revised law substitutes "any person" for the list of legal entities in V.A.C.S. Article 3930 because the Code Construction Act (Chapter 311, Government Code) defines "person" to include any legal entity.

In recodifying article 3930 in the Local Government Code, the legislature did not intend to make any substantive change in the law. See Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 51, 1987 Tex. Gen. Laws 707, 1308. Thus, section 118.011, considered alone, clearly requires county clerks to collect fees from the State.

On their face, section 118.011, which requires county clerks to collect certain fees from the State, and section 154.004(b), which precludes the State from paying fees to a county clerk who receives a salary, conflict. We note, however, that in 1967, the Sixtieth Legislature passed House Bill 80, amending the statutory predecessor to section 118.011, now-repealed article 3930, V.T.C.S., and clarifying that that provision repealed certain other statutory provisions relating to certain fees for county clerks. See Act of May 25, 1967, 60th Leg., R.S., ch. 681, 1967 Tex. Gen. Laws 1790. One of the provisions affected by House Bill 80 was now-repealed article 3912e, V.T.C.S., the statutory predecessor to section 154.004(b). See id. § 2, at 1790-91.

House Bill 80 provided in pertinent part that "the fees provided for County Clerks in all other laws, or parts of laws, in conflict with the provisions of this Act are hereby repealed as to County Clerks only, including but not limited to . . . Article 3912e, Vernon's Texas Civil Statutes." Id. As this office recognized shortly after House Bill 80 was enacted, "Prior to the enactment of House Bill 80, no fees were required to be paid by the State of Texas. [V.T.C.S. art. 3912e, §§ 1, 3]. House Bill 80 now requires fees to be paid by the State." Attorney General Opinion M-134 (1967) at 2; see also Attorney General Opinion M-168 (1967) (noting that House Bill 80 did not repeal sections 1 and 3 of article 3912e insofar as it applied to fees under Probate Code or Code of Criminal Procedure). Thus, the State must pay all fees set forth in section 118.011, including the real property records filing fee and the records management and preservation fee.

The section 291.007 security fee is not mentioned in the section 118.011 fee schedule and must be analyzed separately. As noted above, subsection (a) of Local Government Code section 291.007 authorizes a commissioners court to impose a security fee to be charged at the time of filing in civil cases. Subsection (d) provides that if the commissioners court of a county sets a security fee in civil cases, the county and district clerks shall collect a fee of one dollar for filing any document not subject to the security fee. The fees and costs collected under these provisions must be deposited in the courthouse security fund by the county treasurer. Local Gov't Code § 291.007(e). "The fund may be used only to finance the following items when used for the purpose of providing security services for buildings housing a district or county court," including, for example, metal detectors, surveillance equipment, and security personnel. Code Crim. Proc. art. 102.017(c), amended by Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 1, 1993 Tex. Sess. Law Serv. 3261, 3262.[4] See generally Attorney General Opinion DM-283 (1994) (construing Local Gov't Code § 291.007).

We believe that the State is not precluded by section 154.004(b) from paying the section 291.007 security fee for the following reasons. Subsection (a) provides that the security fee "shall be taxed as other costs. The county is not liable for the costs." Subsection (b) provides that in a civil case brought by the State or political subdivision in which the State or political subdivision is the prevailing party, the security fee under subsection (a) "shall be taxed and collected as a cost of court against each nonprevailing party." Section 291.007 exempts the local county, but not the State or other political subdivisions, from paying the subsection (d) security fee. This omission contrasts with the special provision made for fees paid by the State and political subdivisions in subsection (b), and leads us to conclude that the legislature intended for the State and political subdivisions, other than the local county, to pay the subsection (d) fee.[5] To the extent that section 291.007(d) and section 154.004(b) conflict, section 291.007(d), which is both more recent and more specific than section 154.004(b), must prevail. See Gov't Code §§ 311.025(a), .026(b). Therefore, section 154.004(b) of the Local Government Code does not preclude the commission from paying the subsection (d) fee.

SUMMARY

Local Government Code section 154.004(b) does not preclude the Texas Railroad Commission from paying a real property records filing fee pursuant to Local Government Code sections 118.011(a)(2) and 118.013(a), a records management and preservation fee pursuant to Local Government Code sections 118.011(b)(2) and 118.0216, or a courthouse security fee under Local Government Code section 291.007(d) when filing notices required by section 89.043(e) of the Natural Resources Code.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes:

[1] The Seventy-fourth Legislature amended subsection (e) by adding the following, effective August 28, 1995: "The commission shall not be charged a fee for the filing or recording of the notice." See Act of May 21, 1995, 74th Leg., R.S., ch. 928, § 1, available in Westlaw, TX-Legis 928 (1995) (copies available at House Document Distribution Office) (to be codified as Nat. Res. Code § 89.043(e)). This opinion does not consider the effect of that amendment.

[2] As of September 1, 1995, section 291.007 will be renumbered as section 291.008. See S.B. 959, Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 17.01, available in Westlaw, TX-Legis 76 (1995) (copies available at Senate Bill Distribution Office).

[3] You rely upon Attorney General Opinion JM-779 (1987), which considered whether a district attorney is required to pay a fee to the county clerk for recording abstracts of judgment under section 51.318 of the Government Code. Section 51.318 of the Government Code, however, pertains to fees charged by district clerks.

[4] Article 102.017 will be renumbered as article 102.018 as of September 1, 1995. See S.B. 959, Act of April 25, 1995, 74th Leg., ch. 76, § 17.01, and amended to apply to municipal courts effective August 28, 1995, see S.B. 349, Act of May 27, 1995, 74th Leg., R.S., ch. 164, § 2, available in Westlaw, TX-Legis database (copies available at Senate Bill Distribution Office).

[5] One might suggest that no reference is made to the State and political subdivisions with respect to the subsection (d) fee because the legislature assumed that they would be precluded from paying the fee under section 154.004(b). This argument is not convincing, however, because section 154.004(b) only precludes the State and counties from paying fees. It does not preclude the rest of other types of political subdivisions from paying fees.