Could a Texas probate clerk charge separate fees for certifying and recording an escheat order's mailing certificate and the administrator's payment receipt?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-223: Probate Escheat Document Fees
Plain-English summary
Dallas County asked what fees a probate clerk could charge for documents generated when part of a deceased person's estate escheated to Texas. The documents included a certified court order, a postmaster's mailing certificate, and the administrator's receipt from the State Treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
JM-223 concluded that the clerk could not collect a separate fee for certifying the escheat order or recording the mailing certificate required by Probate Code section 428. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
The opinion treated those tasks as "internal procedures in the county clerk's office," not separately chargeable services rendered to the administrator or State Treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
The general probate fee covered the certification and recording work because it included "all other clerical duties in connection with such probate court docket." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
The administrator's receipt was different. The administrator presented that document for filing under section 430, so JM-223 concluded that the clerk could collect the specified fee for filing and recording a legal document in an open probate docket. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Currency note
This opinion was issued in 1984. 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.
Common questions
Could the clerk charge $4 for the section 428 mailing certificate?
No. JM-223 said a fee "may not be collected" for filing the certificate required by section 428. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Could the clerk charge separately for certifying the escheat order sent to the State Treasurer?
No. The opinion concluded that the general probate fee covered "the certification of the court order required by section 428." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Why were those section 428 tasks not separately chargeable?
JM-223 characterized certification and certificate filing as "internal procedures" rather than services rendered under the county-clerk fee statutes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Could the clerk charge for filing the administrator's receipt from the State Treasurer?
Yes. The opinion said a filing fee could be collected for the administrator's receipt showing payment of the escheated funds. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Who presented the receipt for filing?
JM-223 distinguished it from the clerk-generated section 428 documents because "The administrator does, however, present" the State Treasurer receipt for filing and recording. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Background and statutory framework
Section 428 required the clerk to mail the State Treasurer a certified copy of the escheat order, obtain a postmaster's certificate showing mailing, and record that certificate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Section 430 required an executor or administrator who paid estate funds to the State Treasurer to obtain an official receipt, file it with the probate clerk, and have it recorded in the court minutes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Article 3930(b) set the general probate fee and included specified instruments, documents, papers, and clerical duties. Its separate open-docket filing provision applied to the administrator's receipt. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Citations and references
- Probate Code section 428 supplied the clerk's certification, mailing, and postmaster-certificate duties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
- Probate Code section 430 supplied the administrator's duty to file the State Treasurer's receipt. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
- Article 3930(b) supplied both the general probate fee and the separate filing provision applied by JM-223. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
- Attorney General Opinion M-170 (1967) had concluded that the State Treasurer did not have to pay a fee for the section 428 certification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0223
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0223.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
November 2, 1984
Honorable Henry Wade
District Attorney
Condemnation Section
Services Building
Dallas, Texas 75202
Opinion No. JM-223
Re: County clerk's fee for filing and recording a certificate of service under the probate code
Dear Mr. Wade:
You have requested our opinion regarding fees of office which the county clerk may collect in certain probate matters. Specifically, you have asked what fees the county clerk is authorized to charge for the filing of certain documents generated as a consequence of escheat of a portion of the deceased's estate to the state of Texas.
You ask whether the county clerk may charge a $4.00 fee for filing and recording a certificate of service executed pursuant to section 428 of the Texas Probate Code. Section 428 requires the clerk of the probate court to mail a certified copy of the court escheat order to the state treasurer. The clerk is required under section 428 to record a certificate from the postmaster stating that such a certified copy of court order was properly mailed to the state treasurer. Section 428 provides:
Whenever an order shall be made by the court for an executor or an administrator to pay any funds to the State Treasurer under the preceding provisions of this Code, the clerk of the court in which such order is made shall mail to the State Treasurer a certified copy of such order within thirty days after the same has been made. Whenever the clerk mails such copy, he shall take from the postmaster with whom it is mailed a certificate stating that such certified copy was mailed in his office, addressed to the State Treasurer at Austin, Texas, and the date when it was mailed, and shall record such certificate.
You have also asked what fee, if any, the county clerk is required to collect for recording the receipt filed by an administrator of an estate pursuant to section 430, which provides:
Whenever an executor or administrator pays the State Treasurer any funds of the estate he represents, under the preceding provisions of this Code, he shall take from the State Treasurer a receipt for such payment, with official seal attached, and shall file the same with the clerk of the court ordering such payment; and such receipt shall be recorded in the minutes of the court.
And third, you have asked what fee may be collected for certifying a copy of the court's escheat order as is required under section 428.
It is the court clerk's legal duty to make the certification and record the certificate as is required by section 428. The administrator of the estate does not request the certification under section 428, nor offer for filing the certificate. The administrator does, however, present for filing and recording the receipt of payment from the state treasurer under section 430. A prior opinion of this office concluded that the state treasurer was not required to pay any fees to the county clerk for the certification required under section 428 of a court order transmitted to the state treasurer's office. Attorney General Opinion M-170 (1967). This opinion reasoned that the section 428 certification was not a "service rendered" for purposes of the county clerk fee statutes, articles 3930 and 3930(b), V.T.C.S. The certification and certificate filing under section 428, we believe, are internal procedures in the county clerk's office and are not subject to the county clerk fee statutes which specify the fees for "services rendered." V.T.C.S. arts. 3930, 3930(b).
The probate fees permitted to be collected by the county clerk are set by article 3930(b). A general probate fee for the administration of an estate is $35.00, which fee covers the required issuance of all writs, process and
all other instruments, documents, or papers authorized, permitted or required to be issued by said county clerk or said clerk of probate courts on which a return must be recorded. . . .
V.T.C.S. art. 3930(b), section 1B(1). This general fee includes "all other clerical duties in connection with such probate court docket." Id. We believe therefore that the general fee required for the filing and administration of an estate covers the certification of the court order required by section 428 and the recording of the certificate that such certified copy has been mailed to the state treasurer. With regard to the filing of the receipt by the administrator, however, we believe that the county clerk may collect the fee specified by article 3930(b), section 1B(1)(b)(i), which provides for the fee for filing and recording legal documents and instruments in an open probate docket.
SUMMARY
A fee may not be collected by a probate court clerk for certifying a court order or filing a certificate as required under section 428 of the Probate Code. A filing fee may be collected for the filing by an administrator of his receipt from the state treasurer of the escheat payment.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Nancy Sutton
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