Does the Texas section 133.154 special court filing fee apply to cases filed in a statutory probate court?

TX AG Opinion GA-0568: Does the section 133.154 special filing fee apply in statutory probate courts?

Plain-English summary

Texas charges a stack of fees when someone files a court case, and the Legislature periodically adds new ones. In 2005, House Bill 11 added a special civil filing fee (section 133.154 of the Local Government Code) to support the judiciary. The statute says the clerk of a "district court, statutory county court, or county court" must collect the fee on any civil suit filing. It does not mention statutory probate courts, which are the specialized county-level courts (in larger counties) that handle wills, estates, and guardianships. Because clerks in some counties were collecting the fee in probate cases and clerks in others were not, two district attorneys, Susan Reed of Bexar County and John Roach of Collin County, asked the Attorney General whether the fee applies in statutory probate courts.

The answer was no. The puzzle is that a statutory probate court is, in a loose sense, a county-level court created by statute, so one might think it falls under "statutory county court." But the Attorney General looked at how chapter 133 uses these terms. Section 133.004, which lists the fees chapter 133 governs, separately lists fees imposed in statutory county courts and fees imposed in statutory probate courts. Because that section treats the two as distinct, the phrase "statutory county court" in the fee statute cannot be stretched to include statutory probate courts.

House Bill 11 confirmed the point in how it amended the Government Code's chapter 101 fee lists. The bill added the new special fee to the lists for district courts, statutory county courts, and constitutional county courts, but it did not add the fee to the subchapter for statutory probate courts. That omission lines up with leaving statutory probate courts out of the section 133.154 fee. The Attorney General acknowledged this might create administrative headaches given the inconsistent collection practices, but explained that an unambiguous statute has to be applied as written, not second-guessed. So the special filing fee in section 133.154 does not apply to cases filed in a statutory probate court.

Currency note

This opinion was issued in 2007. 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.

The court-fee statutes in chapter 133 and chapter 101 have been amended repeatedly since 2007 (the opinion itself notes a 2007 increase of this fee from $37 to $42), and the Texas Probate Code has since been recodified into the Estates Code. Confirm the current fee statutes before relying on any specific amount or rule mentioned here.

Who this opinion affected (as of 2007)

District and county clerks: The opinion told clerks not to collect the section 133.154 special filing fee in statutory probate court cases, resolving the split where some counties collected it and others did not.

Statutory probate courts and litigants in probate, guardianship, and estate matters: The opinion meant the section 133.154 fee was not part of the filing costs in those courts.

County officials and the Office of Court Administration: The opinion construed the fee statute by its text and by House Bill 11's chapter 101 amendments, declining to import definitions from unrelated statutes, and noted the result might pose administrative difficulties that were for the Legislature, not the Attorney General, to address.

Common questions

What is the section 133.154 fee?
It is a special civil filing fee added by House Bill 11 in 2005, collected on the filing of a civil suit and used for court-related purposes to support the judiciary. The opinion notes the Legislature raised it from $37 to $42 in 2007.

Why doesn't a statutory probate court count as a "statutory county court" here?
Because chapter 133 itself distinguishes them. Section 133.004 separately lists fees for statutory county courts and for statutory probate courts, so "statutory county court" in the fee statute cannot be read to include statutory probate courts.

Didn't House Bill 11 mean to cover probate courts too?
The text suggests not. House Bill 11 added the fee to the chapter 101 fee lists for district courts, statutory county courts, and constitutional county courts, but not to the subchapter for statutory probate courts, which is consistent with leaving those courts out.

Does this opinion change the courthouse security fee for probate cases?
No. The opinion notes that a different statute (section 291.008) and an earlier opinion (DM-283) addressed a courthouse security fee in probate cases, and it declined to revisit that separate analysis.

Background and statutory framework

The Texas Constitution authorizes two kinds of courts: those created by the constitution, including a "County Court" in each county under article V, section 15 (the constitutional county courts), and those the Legislature creates under article V, section 1, including county courts at law and other statutory courts (Tex. Const. art. V, §§ 1, 15; Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950); Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.)). Chapter 25 of the Government Code establishes statutory county-level courts for particular counties; Bexar County, for example, has twelve county courts at law and two statutory probate courts, and Collin County has six county courts at law and one statutory probate court (Tex. Gov't Code Ann. §§ 25.0171(b)-(c), 25.0451).

For title 2 of the Government Code, "statutory county court" is expressly defined to exclude statutory probate courts (Tex. Gov't Code Ann. § 21.009; Tex. Prob. Code Ann. § 3(ii)), though "county court" can mean different things in different contexts (Tex. Prob. Code Ann. § 3(e)). Rather than import a definition from another statute, the Attorney General construed the terms in the context of chapter 133 (Tex. Gov't Code Ann. § 311.011(a)). Chapter 133 consolidates civil and criminal fee collection (Tex. Loc. Gov't Code Ann. § 133.001), and section 133.004 lists the fees it governs, separately identifying fees imposed in statutory county courts (subsection (4)) and in statutory probate courts (subsection (6)), and the section 133.154 fee for district court, statutory county court, and county court (subsection (10)) (Tex. Loc. Gov't Code Ann. § 133.004; see also Act of May 22, 2007, 80th Leg., R.S., ch. 718, § 6, 2007 Tex. Sess. Law Serv. 1346, 1350). Because section 133.004 distinguishes statutory county courts from statutory probate courts, the "statutory county court" reference in section 133.154 cannot include statutory probate courts (Tex. Loc. Gov't Code Ann. § 133.154(a); Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, § 13, 2005 Tex. Gen. Laws 34, 38; Act of May 15, 2007, 80th Leg., R.S., S.B. 600, § 4).

House Bill 11 reinforced that reading by adding the special fee to the chapter 101 fee subchapters for district courts, statutory county courts, and constitutional county courts, but not to the subchapter for statutory probate courts (Tex. Gov't Code Ann. §§ 101.062, .083, .123, 101.101-.102; § 101.001 (limiting the effect of the chapter 101 fee lists)). The Attorney General acknowledged the result might pose administrative difficulties but explained that an unambiguous statute must be applied as written without second-guessing legislative policy (McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Tex. Att'y Gen. Op. No. GA-0563 (2007) at 3). The opinion left undisturbed a separate courthouse-security-fee analysis under section 291.008 and Attorney General Opinion DM-283 (Tex. Loc. Gov't Code Ann. § 291.008; Tex. Att'y Gen. Op. No. DM-283 (1994) at 7).

Citations

Constitution, statutes, and session laws:

• Tex. Loc. Gov't Code Ann. § 133.001 (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 133.004 (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 133.154(a) (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 291.008
• Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, § 13, 2005 Tex. Gen. Laws 34, 38
• Act of May 15, 2007, 80th Leg., R.S., S.B. 600, § 4
• Act of May 22, 2007, 80th Leg., R.S., ch. 718, § 6, 2007 Tex. Sess. Law Serv. 1346, 1350
• Tex. Const. art. V, § 1
• Tex. Const. art. V, § 15
• Tex. Gov't Code Ann. § 21.009 (Vernon 2004)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)
• Tex. Gov't Code Ann. § 25.0171(b)-(c) (Vernon 2004)
• Tex. Gov't Code Ann. § 25.0451 (Vernon 2004)
• Tex. Gov't Code Ann. §§ 51.702, 51.703, 51.704 (Vernon Supp. 2006)
• Tex. Gov't Code Ann. §§ 101.062, .083, .123 (Vernon Supp. 2006)
• Tex. Gov't Code Ann. §§ 101.101-.102 (Vernon 2005)
• Tex. Gov't Code Ann. § 101.001 (Vernon 2005)
• Tex. Prob. Code Ann. § 3(e) (Vernon 2003)
• Tex. Prob. Code Ann. § 3(ii) (Vernon 2003)

Cases:

• Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950)
• Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.)
• McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003)

Attorney General opinions referenced: DM-283 (1994), GA-0563 (2007).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0568
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0568.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 11, 2007

The Honorable Susan D. Reed
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

The Honorable John R. Roach
Collin County Criminal District Attorney
Collin County Courthouse
210 South McDonald, Suite 324
McKinney, Texas 75069

Opinion No. GA-0568

Re: Whether the special filing fee in Local Government Code section 133.154 must be collected for cases filed in a statutory probate court (RQ-0577-GA)

Dear Ms. Reed and Mr. Roach:

You ask whether the special filing fee in Local Government Code section 133.154 must be collected for cases filed in a statutory probate court.[1]

The Seventy-ninth Legislature added section 133.154 of the Local Government Code by enacting House Bill 11.[2] The section requires "the clerk of a district court, statutory county court, or county court" to collect a special fee "on the filing of any civil suit to be used for court-related purposes for the support of the judiciary." TEX. LOC. GOV'T CODE ANN. § 133.154(a) (Vernon Supp. 2006).[3] The statute does not expressly mention statutory probate courts. Id. But statutory probate courts are county-level courts that are created by statute, and it has been suggested that the term "statutory county courts" in section 133.154 may include statutory probate courts.[4]

I. Background

To put your question in context, we review the constitutional and statutory basis for various types of county-level courts and some of the reasons for questioning the meaning of section 133.154. The Texas Constitution authorizes two distinct types of courts, those created by the constitution and those created by statute. Article V, section 15 of the constitution establishes a "County Court" for each county. TEX. CONST. art. V, § 15. These courts are commonly referred to as "constitutional county courts" to distinguish them from county-level courts created by statute. See Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15 as "constitutional county courts"). Article V, section 1 of the constitution authorizes the Legislature to "establish such other courts as it may deem necessary," including county-level courts. TEX. CONST. art. V, § 1; see also Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.). Article V, section 1 courts are sometimes referred to as "statutory courts." See Regian, 534 S.W.2d at 176 (observing that under article V, section 1 of the Texas Constitution, "the Legislature has from time to time created so-called 'statutory' courts across the State, such as county courts at law, county civil courts, domestic relations courts, and others").

Title 2, subtitle A of the Government Code establishes statutory courts and otherwise provides for both constitutional and statutory courts. See, e.g., TEX. GOV'T CODE ANN. chs. 22 ("Appellate Courts"), 24 ("District Courts"), 25 ("Statutory County Courts"), 26 ("Constitutional County Courts") (Vernon 2004 & Supp. 2006). Chapter 25, subchapter C establishes statutory county-level courts for particular counties. See id. §§ 25.0041-.2512. Bexar County, for example, has twelve "county courts at law," and two "statutory probate courts." See id. § 25.0171(b)-(c) (Vernon 2004). Section 25.0451 provides that "Collin County has the following statutory county courts," being six county courts at law, and "has one statutory probate court." See id. § 25.0451.

The fee you ask about is imposed in "district court, statutory county court, or county court." See TEX. LOC. GOV'T CODE ANN. §§ 133.004, .154 (Vernon Supp. 2006). We have received briefing about references to county-level courts in statutes outside of chapter 133 of the Local Government Code attempting to establish the meaning of the terms "statutory county court" and "statutory probate court."[5] For example, the term "statutory county court" is expressly defined to exclude statutory probate courts as those terms are used in title 2 of the Government Code. See TEX. GOV'T CODE ANN. § 21.009 (Vernon 2004).[6] But the organization of chapter 25 of the Government Code suggests that, at least for some purposes, a statutory probate court may be a subclass of statutory county courts.[7] And we are mindful that, although the term "county court" generally means a constitutional county court, it may have different meaning in specific contexts.[8] These incongruities illustrate that, while other statutes may be informative, terms and phrases must be construed in the context of the statute in which they appear. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005). Consequently, rather than attempt to discern a definitive meaning for the terms "statutory county court" and "statutory probate court" from other statutes, we consider those terms as they are used in the context of chapter 133 of the Local Government Code, as amended by House Bill 11.

II. Chapter 133 of the Local Government Code, as Amended by House Bill 11

Local Government Code chapter 133 consolidates and standardizes civil and criminal fee collection, remittance, and distribution. TEX. LOC. GOV'T CODE ANN. § 133.001 (Vernon Supp. 2006). The chapter does not define the term "statutory county court" nor does it expressly state whether the term "statutory county court" includes statutory probate courts. However, section 133.004 provides that chapter 133 applies to the following fees, among others:

(4) the filing fees for the judicial fund imposed in certain statutory county courts under Section 51.702, Government Code;

(5) the filing fees for the judicial fund imposed in certain county courts under Section 51.703, Government Code;

(6) the filing fees for the judicial fund imposed in certain statutory probate courts under Section 51.704, Government Code; . . . and

(10) the filing fee for the judicial fund imposed in district court, statutory county court, and county court under Section 133.154.

Id. § 133.004 (emphasis added).[9] Subsections 133.004(4) and (6) expressly distinguish between statutory county courts and statutory probate courts. Thus, the reference to "statutory county court" in subsection 133.004(10) cannot be construed to include statutory probate courts. See id. And when read in light of section 133.004, section 133.154's imposition of a fee for "district court, statutory county court, and county court" cannot be construed to include statutory probate courts. See id.

No other provision in the remainder of chapter 133 of the Local Government Code or in House Bill 11 suggests that the special fee in section 133.154 is applicable to statutory probate court proceedings, or that statutory probate courts are included as statutory county courts. To the contrary, House Bill 11 maintains the distinctions between the various courts in its amendments to chapter 101 of the Government Code. House Bill 11 adds the special fee to chapter 101's subchapters that list the fees to be collected in district courts (subchapter D), statutory county courts (subchapter E), and constitutional county courts (subchapter G), but it fails to add the fee to the subchapter concerning statutory probate courts (subchapter F). See House Bill 11, supra note 2, §§ 14-16 (adding TEX. GOV'T CODE ANN. §§ 101.062, .083, .123); see also TEX. GOV'T CODE ANN. §§ 101.101-.102 (Vernon 2005) (subchapter F). The fee listings in chapter 101 do not control our construction of section 133.154 of the Local Government Code. See TEX. GOV'T CODE ANN. § 101.001 (Vernon 2005) (limiting the effect of the fee lists in chapter 101). But the bill's failure to list the special fee as a statutory probate court fee in chapter 101 is consistent with the omission of statutory probate courts from the courts made subject to the fee in Local Government Code section 133.154. Consequently, chapter 101 of the Government Code, as amended by House Bill 11, is consistent with our textual construction of Local Government Code section 133.154. We conclude that the special filing fee in Local Government Code section 133.154 does not apply to cases filed in a statutory probate court.[10]

SUMMARY

The special filing fee that Local Government Code section 133.154 requires for all cases filed in district court, statutory county court, and county court does not apply to cases filed in a statutory probate court.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 15, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Reed Letter]; Letter from Honorable John R. Roach, Collin County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 16, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Roach Letter].

[2] See Act of Aug. 9, 2005, 79th Leg., 2d C.S., ch. 3, § 13, 2005 Tex. Gen. Laws 34, 38 ("House Bill 11").

[3] We note that the Eightieth Legislature acted in Senate Bill 600 to raise the special fee in section 133.154 of the Local Government Code from $37 to $42, among other changes. See Act of May 15, 2007, 80th Leg., R.S., S.B. 600, § 4 (to be codified at TEX. LOC. GOV'T CODE ANN. § 133.154(a)).

[4] See Brief from Carl Reynolds, Administrative Director, Office of Court Administration, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Apr. 25, 2007) (on file with the Opinion Committee) [hereinafter Reynolds Brief].

[5] See Roach Letter, supra note 1, at 6; Reynolds Brief, supra note 4, at 2-3; Brief from Honorable Guy Herman, Presiding Statutory Probate Judge, Statutory Probate Courts, State of Texas, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 23, 2007) (on file with the Opinion Committee).

[6] Section 21.009 provides that in title 2 of the Government Code:

(1) "County court" means the court created in each county by Article V, Section 15, of the Texas Constitution.

(2) "Statutory county court" means a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, county criminal courts, county criminal courts of appeals, and county civil courts at law, but does not include statutory probate courts as defined by Section 3, Texas Probate Code.

(4) "Statutory probate court" has the meaning assigned by Section 3, Texas Probate Code.

TEX. GOV'T CODE ANN. § 21.009 (Vernon 2004) (emphasis added). Under section 3 of the Probate Code, a statutory probate court is a "statutory court designated as a statutory probate court under Chapter 25, Government Code." TEX. PROB. CODE ANN. § 3(ii) (Vernon 2003). Thus, for Government Code title 2 purposes, if chapter 25 expressly designates a court as a "statutory probate court," it is not a "statutory county court" despite the fact that it is a county-level court created by statute.

[7] It has also been brought to our attention that an unrelated statute, section 291.008 of the Local Government Code, is construed to impose a courthouse security fee in cases filed in statutory probate courts, even though those courts are not expressly included in the statute. See Tex. Att'y Gen. Op. No. DM-283 (1994) at 7 (construing TEX. LOC. GOV'T CODE ANN. § 291.008); see also Roach Letter, supra note 1, at 6; Reynolds Brief, supra note 4, at 2-3. Relying on the legislative history of that particular statute, Attorney General Opinion DM-283 determined that the courthouse security fee was intended to be collected in all probate cases, regardless of the court in which a probate case was filed. See Tex. Att'y Gen. Op. No. DM-283 (1994) at 7. As Local Government Code section 291.008 does not contain the term "statutory county court" and was not otherwise implicated by House Bill 11's amendments to chapter 133 of the Local Government Code, we do not revisit the analysis in that opinion.

[8] See, e.g., TEX. GOV'T CODE ANN. §§ 21.009(1), 26.001-.353 (Vernon 2004 & Supp. 2006) (using "county court" to refer to a constitutional county court); TEX. PROB. CODE ANN. § 3(e) (Vernon 2003) (defining "county court" and "probate court" as synonyms that include not only constitutional and statutory county-level courts, but also district courts in some circumstances), TEX. PROB. CODE ANN. § 3(ii) (Vernon 2003) (defining "statutory probate court" as limited to courts designated as statutory probate courts in chapter 25 of the Government Code); Hunt, 228 S.W.2d at 153 (holding that "county court" in jurisdictional statute included both constitutional county court and county court at law).

[9] Section 133.004(6) of the Local Government Code was recently amended to delete the word "certain." See Act of May 22, 2007, 80th Leg., R.S., ch. 718, § 6, 2007 Tex. Sess. Law Serv. 1346, 1350.

[10] You have informed us that the clerks of statutory probate courts in some counties have collected the fee in section 133.154 of the Local Government Code while the clerks in other counties have not. See Roach Letter, supra note 1, at 1. We are aware that our conclusion that the fee does not apply to statutory probate courts may pose some administrative difficulties. Like a court, however, this office must construe unambiguous statutes according to their plain meaning and must not second-guess legislative policy choices. See McIntyre v. Ramirez, 109 S.W.3d 741, 745, 748 (Tex. 2003); Tex. Att'y Gen. Op. No. GA-0563 (2007) at 3.