Does the Texas Comptroller's list of new court costs and fees include non-court fees like a county records-preservation fee?

Plain-English summary

After every regular legislative session, Government Code section 51.607 puts a housekeeping duty on the Texas Comptroller. The Comptroller has to comb through the new laws, pick out the ones that create or change a "court cost or fee," and publish that list in the Texas Register, with the changes taking effect the next January 1 rather than on the law's own effective date. Comptroller Susan Combs asked the Attorney General how far that duty reaches. Does section 51.607(a) cover only fees tied to court cases, or does it also sweep in other government fees, such as a fee a county clerk charges for managing and preserving filed records?

The question came up because the Eighty-third Legislature passed House Bill 1513, which temporarily raised the county clerk's Records Management and Preservation fee (the RMP fee) from $5 to $10. The Comptroller had included that increase on the Texas Register list, reading the statute to cover two separate categories: court costs and fees collected by a court clerk, plus a second, broader category of "fee[s] or charge[s] for services or to cover the expenses of a public official or agency."

The AG disagreed with the two-category reading. Section 51.607(a), the opinion explained, describes only one thing: a "court cost or fee" collected by the clerk of a district, county, statutory county, municipal, or justice court from a party to a civil case or a defendant in a criminal case. The list that follows, "a filing or docketing fee, jury fee, cost on conviction, or fee or charge for services or to cover the expenses of a public official or agency," is introduced by the word "including," which the Code Construction Act treats as a term of enlargement that illustrates what came before it. The "fee or charge for services" language is the last of four examples, joined by "or," not a free-standing category. The AG read section 51.607 as a whole the same way: every cost or fee it names is judicial in nature.

The RMP fee, by contrast, sits in subchapter B of Local Government Code chapter 118, titled "Fees of County Clerk Other Than Court Fees," and it pays for preserving documents after they are filed, work unconnected to any court case. Because the fee is not court-related, the AG concluded it falls outside the Comptroller's section 51.607(a) duty. The opinion acknowledged that the Comptroller's reading of a statute she administers gets "serious consideration," but said that when an agency's interpretation conflicts with the statute's plain language, the plain language controls.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Comptroller Susan Combs (as the opinion described it): The opinion answered that section 51.607(a) reaches only court-related costs and fees and describes a single category rather than two, so the office's historical practice of treating "fee or charge for services or to cover the expenses of a public official or agency" as a separate, broader category did not match the statute's plain language.

County clerks and the Records Management and Preservation fee (as the opinion described it): The opinion described the RMP fee under Local Government Code section 118.011 as a non-court-related fee, located in a subchapter titled "Fees of County Clerk Other Than Court Fees," and concluded that it does not fall within the Comptroller's section 51.607(a) duty to identify and list court costs and fees.

Courts and clerks that collect court costs (as the opinion described it): The opinion read section 51.607 to cover costs and fees that are judicial in nature, those collected in one of the five named courts in connection with a civil or criminal case, and the second sentence's exclusions (attorney's fees, fines, restitution, and the like) as confirming that judicial focus.

Common questions

What does Government Code section 51.607 make the Comptroller do?
The AG described it as a recurring duty: after each regular legislative session, identify each new law that imposes or changes a court cost or fee, publish that list in the Texas Register by August 1, and apply the changes the following January 1 instead of on the law's own effective date.

Did the AG say the statute covers two kinds of fees or one?
One. The AG concluded that section 51.607(a) describes a single category, a "court cost or fee" collected by a court clerk, and that the language about a "fee or charge for services or to cover the expenses of a public official or agency" is the last of four illustrative examples, not a separate category.

Why isn't the county records-preservation fee on the list?
The AG explained that the RMP fee authorized by Local Government Code section 118.011 pays for managing and preserving documents after they are filed, which is not court-related, and it sits in a subchapter titled "Fees of County Clerk Other Than Court Fees." So it falls outside section 51.607(a).

The Comptroller is the official who runs this statute. Why didn't her reading win?
The AG gave the Comptroller's interpretation "serious consideration," as a court would, because she is charged with implementing the statute. But the opinion explained that when an implementing official's reading conflicts with the statute's plain language, the plain language must be enforced.

Background and statutory framework

Government Code section 51.607(a) directs the Comptroller, following each regular legislative session, to identify each law (other than one disapproved by the governor) that imposes or changes the amount of a court cost or fee collected by the clerk of a district, county, statutory county, municipal, or justice court from a party to a civil case or a defendant in a criminal case, "including a filing or docketing fee, jury fee, cost on conviction, or fee or charge for services or to cover the expenses of a public official or agency" (Tex. Gov't Code Ann. § 51.607(a) (West Supp. 2013)). Subsection (b) requires the Comptroller to publish the resulting list in the Texas Register by August 1, and subsection (c) delays the effective date of any listed change until the next January 1 (id. § 51.607(a)-(c)).

The AG applied the usual rule that the goal of statutory construction is to give effect to legislative intent as expressed in the plain language, with words read in context and according to common usage (Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012); Tex. Gov't Code Ann. § 311.011 (West 2013)). The Code Construction Act defines "including" as a term "of enlargement and not of limitation" (id. § 311.005(13); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied)), which the AG used to treat the four listed fees as illustrations of the single "court cost or fee" category rather than as separate categories.

The RMP fee at issue is authorized by Local Government Code section 118.011, which sits in subchapter B of chapter 118, titled "Fees of County Clerk Other Than Court Fees," and sets a county clerk's schedule for non-court filings (Tex. Loc. Gov't Code Ann. § 118.011(a) (West Supp. 2013)). It lets a clerk collect the fee for records management and preservation services performed after a document is filed (id. §§ 118.011(b)(2), .0216(a)). House Bill 1513 from the Eighty-third Legislature temporarily raised that fee from $5 to $10 (Act of May 23, 2013, 83rd Leg., R.S., ch. 927, § 1.04, 2013 Tex. Gen. Laws 2302, 2305). The AG afforded the Comptroller's reading "serious consideration" because she administers section 51.607, but held that where the agency's interpretation conflicts with the statute's plain language, the plain language governs (R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 51.607(a) (West Supp. 2013) (Comptroller's duty to identify court costs and fees)
• Tex. Gov't Code Ann. § 51.607(a)-(c) (West Supp. 2013) (list, publication, and delayed effective date)
• Tex. Gov't Code Ann. § 311.011 (West 2013) (words read in context and by common usage)
• Tex. Gov't Code Ann. § 311.005(13) (West 2013) ("including" is a term of enlargement)
• Tex. Loc. Gov't Code Ann. § 118.011(a) (West Supp. 2013) (county clerk fee schedule for non-court filings)
• Tex. Loc. Gov't Code Ann. §§ 118.011(b)(2), .0216(a) (West Supp. 2013) (Records Management and Preservation fee)
• Act of May 23, 2013, 83rd Leg., R.S., ch. 927, § 1.04, 2013 Tex. Gen. Laws 2302, 2305 (House Bill 1513, temporary RMP fee increase)

Cases:

• Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)
• Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1055
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1055.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 5, 2014

The Honorable Susan Combs Opinion No. GA-1055
Texas Comptroller of Public Accounts
Post Office Box 13528 Re: The scope of subsection 51.607(a) of the
Austin, Texas 78711-3528 Government Code concerning the Comptroller of
Public Accounts' identification of new or changed
court costs and fees (RQ-1162-GA)

Dear Comptroller Combs:

You ask about the scope of the Comptroller's duties under subsection 51.607(a) of the Government Code.[1] Subsection 51.607(a) provides:

Following each regular session of the legislature, the comptroller shall identify each law enacted by that legislature, other than a law disapproved by the governor, that imposes or changes the amount of a court cost or fee collected by the clerk of a district, county, statutory county, municipal, or justice court from a party to a civil case or a defendant in a criminal case, including a filing or docketing fee, jury fee, cost on conviction, or fee or charge for services or to cover the expenses of a public official or agency. This subsection does not apply to attorney's fees, civil or criminal fines or penalties, or amounts charged, paid, or collected on behalf of another party to a proceeding other than the state in a criminal case, including restitution or damages.

TEX. GOV'T CODE ANN. § 51.607(a) (West Supp. 2013). Under subsection 51.607(b), no later than August 1 after the end of each regular legislative session, the Comptroller is required to publish in the Texas Register a list of each court cost or fee identified pursuant to subsection 51.607(a). Id. § 51.607(b). Under subsection 51.607(c), "[n]otwithstanding the effective date of the law imposing or changing the amount of a court cost or fee included on the list, the imposition or change in the amount of the court cost or fee does not take effect until the next January 1 after the law takes effect." Id. § 51.607(c).

You state that the Eighty-third Legislature enacted House Bill 1513 ("H.B. 1513"), which among other amendments temporarily increased from $5 to $10 the "Records Management and Preservation Fee" (the "RMP fee") authorized by subsection 118.011(b)(2) of the Local Government Code. Request Letter at 2; Act of May 23, 2013, 83rd Leg., R.S., ch. 927, § 1.04, 2013 Tex. Gen. Laws 2302, 2305. You explain that the Comptroller, pursuant to her duty under subsection 51.607(b), "included [H.B. 1513], and in particular the increase in the [RMP fee], in the list it published in the Texas Register." Request Letter at 2. You state that, in response to the Comptroller's including the amendment to section 118.011 on the list, a question has arisen as to whether subsection 51.607(a) applies only to court costs and fees that are collected by the clerk of one of the listed courts, and not to other, non-court-related costs or fees. Id. You assert that the Comptroller "has historically interpreted Section 51.607(a) to apply to two different categories of costs and fees:"

(1) "court cost[s] or fee[s] collected by the clerk of a district, county, statutory county, municipal, or justice court from a party to a civil case or a defendant in a criminal case, including a filing or docketing fee, jury fee, cost on conviction ..."; and

(2) "fee[s] or charge[s] for services or to cover the expenses of a public official or agency."

Id. at 1-2 (quoting subsection 51.607(a)). You ask us to clarify the scope of subsection 51.607(a) because, as you explain, a court cost or fee excluded from or included in the Texas Register incorrectly "may cause a court cost or fee to be collected prematurely or . . . after its intended collection date." Id. at 3.

The primary goal in statutory construction is to determine and give effect to legislative intent as expressed by the plain language of the statute, which is presumed to have been deliberately and purposefully selected by the Legislature. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). To that end, words and phrases are "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011 (West 2013). An agency's interpretation of a statute it is charged with enforcing or applying is entitled to "serious consideration," so long as the construction is reasonable and does not conflict with the statute's plain language. R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).

The first sentence of subsection 51.607(a) directs the Comptroller to identify laws "that impose[] or change[] the amount of a court cost or fee ...." TEX. GOV'T CODE ANN. § 51.607(a) (West Supp. 2013). Modifying "a court cost or fee" is the phrase "collected by the clerk of a district, county, statutory county, municipal, or justice court from a party to a civil case or a defendant in a criminal case ...." Id. The next word in the sentence, "including," is defined by the Code Construction Act as a term of "enlargement and not of limitation," and it is used here to indicate that the list that follows it modifies or is illustrative of what came before it. Id. § 311.005(13) (West 2013); see Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex. App.-Tyler 2000, pet. denied) (applying the definition of "including" under the Code Construction Act). Thus, "a filing or docketing fee, jury fee, cost on conviction, or fee or charge for services or to cover the expenses of a public official or agency" represents an illustrative list of the types of court costs or fees to which subsection 51.607(a) applies. TEX. GOV'T CODE ANN. § 51.607(a) (West Supp. 2013).

You indicate that the Comptroller has interpreted the phrase "fee or charge for services or to cover the expenses of a public official or agency" to describe a separate category of fees that must be included on the list in the Texas Register. Request Letter at 2. However, that phrase is preceded by the disjunctive "or," indicating that it is the last of four examples meant to illustrate "a court cost or fee collected by the clerk of [the specified courts] from a party to a civil case or a defendant in a criminal case." TEX. GOV'T CODE ANN. § 51.607(a) (West Supp. 2013). The phrase is not a separate category unto itself. In sum, the plain language of subsection 51.607(a) does not describe two categories of costs and fees, but just one: a "court cost or fee" as modified and illustrated by the phrases that follow it.

Moreover, section 51.607 as a whole describes costs or fees that are judicial in nature. In subsection 51.607(a), the phrase "court cost or fee" means a court cost or a court fee, and it includes only those costs and fees collected in one of five different courts in relation to a civil or criminal case. The illustrative list of court costs and fees is comprised of court-related costs and fees. This language excludes costs or fees associated with non-court-related filings. Likewise, the second sentence of subsection 51.607(a) describes the costs and fees that are not subject to the statute, and they are all judicial in nature. See id. § 51.607(a). Further, subsection 51.607(b) requires simply that the Comptroller prepare a list "of each court cost or fee covered by Subsection (a)," and the phrase "court cost or fee" is referenced five times throughout section 51.607. Id. § 51.607(a)-(c) (emphasis added). Therefore, both the plain language and a contextual reading of subsection 51.607(a) lead to the conclusion that it applies only to court-related costs or fees.

Section 118.011 of the Local Government Code is found in subchapter B of chapter 118, titled "Fees of County Clerk Other Than Court Fees," and sets out a county clerk's fee schedule for several non-court-related fees. TEX. LOC. GOV'T CODE ANN. § 118.011(a) (West Supp. 2013) (listing, for example, fees for filing real property records, a birth or death certificate, and a marriage license). It permits a clerk to set and collect the RMP 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." Id. §§ 118.011(b)(2), .0216(a). Because the RMP fee authorized under section 118.011 relates to non-court-related filings, it does not fall within the scope of the Comptroller's duties under subsection 51.607(a).

This office, like a court, affords "serious consideration" to the Comptroller's reading of subsection 51.607(a) because the Comptroller is the official charged with implementing that statute. R.R. Comm'n of Tex., 336 S.W.3d at 624; TEX. GOV'T CODE ANN. § 51.607(a)-(b) (West Supp. 2013). Nevertheless, when the implementing official's interpretation of a statute conflicts with the statute's plain language, as is the case here, we cannot defer to the implementing official's view and must advise that the statute's plain language should be enforced.

SUMMARY

The plain language of Government Code subsection 51.607(a) applies only to court-related costs and fees. The Records Management and Preservation Fee authorized under Local Government Code subsection 118.011(b) relates to the filing of non-court-related documents. It therefore does not fall within the scope of the Comptroller's duties under subsection 51.607(a).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] See Letter from the Office of the Tex. Comptroller of Pub. Accounts to Honorable Greg Abbott, Tex. Att'y Gen. at 3 (Nov. 5, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").