Could a Texas district clerk charge separate fees for filing each order and judgment after collecting the initial civil-case filing fee?

Texas AG Opinion JM-384: One Filing Fee Covers Orders

Plain-English summary

A district attorney asked whether a district clerk could charge extra fees for filing each order and judgment in a civil suit after collecting the initial filing fee. The Attorney General agreed with the Office of Court Administration that the initial $75 fee covered the clerk's services during the case except for services for which the legislature had expressly set an additional fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

The opinion relied on the structure of Government Code §§51.317-51.319. Government Code §51.317 set the initial filing fee. Government Code §51.318(a) listed particular services whose fees were "in addition to a fee under Section 51.317." The Attorney General read that express wording to imply that other clerical work connected with the lawsuit was already covered by the initial fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

The catchall provision in Government Code §51.319(5) allowed a reasonable fee only for a duty for which the legislature had set no fee. Because the initial fee already covered filing later orders and judgments, the catchall did not authorize a second charge for those filings. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Currency note

This opinion was issued in 1985. 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

What did the $75 filing fee cover under the opinion?

It covered services performed by the district clerk during the course of the suit, including filing orders and judgments, except when another law expressly imposed an additional fee for a particular service. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Why did the catchall fee provision not apply?

The catchall applied only when the legislature had not set a fee for the clerk's duty. The Attorney General concluded that the initial filing fee was itself the fee covering these later filings, so there was no statutory gap for the catchall to fill. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Did the opinion say district clerks could never collect any later fee in a case?

No. It recognized that section 51.318 expressly authorized fees for specified services in addition to the initial filing fee. Its conclusion concerned other routine services for which no separate fee was expressly provided. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

What earlier case supported the Attorney General's reading?

Rodeheaver v. Alridge held that a probate filing fee covered both the initial filing and later clerk services during the case, describing the fee as an advance payment for services not yet performed when it was collected. The Attorney General applied the same reasoning to section 51.317(b)(1). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Background and statutory framework

At the time, Government Code §51.317(b)(1) required a $75 fee when a suit was filed in district court. Government Code §51.319(5) authorized reasonable fees for duties for which the legislature had set no fee, while §51.318(a) separately identified services whose charges were "in addition to" the §51.317 fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

The opinion also addressed an apparent codification mismatch. The Sixty-ninth Legislature amended former article 3927 to raise the initial fee from $25 to $75, while the Government Code enacted in the same session still printed $25. The Attorney General explained that the $75 amendment remained effective because a code's repeal of a statute did not nullify an amendment enacted by the same legislature, and the codification was not intended to make a substantive change. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Citations and references

• Government Code §§51.317(b)(1), 51.318(a), and 51.319(5)
• Acts 1985, 69th Leg., ch. 239, at 2038; ch. 480, at 3932, 4088, 4090
• V.T.C.S. art. 3930(b), §1b(1)(c)
• V.T.C.S. art. 5429b-2, §3.11(c)
• Rodeheaver v. Alridge, 601 S.W.2d 51 (Tex. Civ. App. - Houston [1st Dist.] 1980, writ ref'd n.r.e.)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0384
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0384.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

December 2, 1985

Honorable F. Duncan Thomas
District Attorney
P. O. Box 441
Greenville, Texas 75401

Opinion No. JM-384

Re: Whether certain fees may be charged by a district clerk

Dear Mr. Thomas:

You ask about the fees a district clerk may charge in connection with a lawsuit filed in district court. At the time a suit is filed in district court a fee of $75.00 is due and payable. Gov't Code §51.317(b)(1) (formerly V.T.C.S. art. 3927, §1; amended by Acts 1985, 69th Leg., ch. 239, at 2038); Acts 1985, 69th Leg., ch. 480, at 3932 (bill adopting Gov't Code). A catchall provision authorizes district clerks to charge reasonable fees for the performance of duties for which the legislature has set no fee. Gov't Code §51.319(5) (formerly V.T.C.S. art. 3928, §5). You ask whether the catchall provision authorizes a district clerk to charge, in addition to the initial $75.00 filing fee, reasonable fees for filing each order and judgment in a suit. You inform us that the Office of Court Administration takes the position that the initial $75 fee covers all clerical services in a suit except those for which additional fees are expressly provided. We think that the Office of Court Administration has interpreted the statute correctly.

We base our conclusion on the structure and language of the applicable fee statutes. Gov't Code §§51.317-51.319. The legislature has provided for fees to be charged by the clerk at the time a suit is filed in district court. Gov't Code §51.317(b)(1). The legislature has also set fees to be charged for the performance of certain services by a district clerk at the time of performance or request for performance and has provided that any such fee is "in addition to a fee under Section 51.317." Gov't Code §51.318(a). That language implies that other duties performed by a district clerk in connection with a lawsuit are covered by the initial fee.

A 1980 case supports our reading of section 51.317(b)(1). Rodeheaver v. Alridge, 601 S.W.2d 51 (Tex. Civ. App. - Houston [1st Dist.] 1980, writ ref'd n.r.e.). In Rodeheaver the court dealt with the following language:

For each adverse action or contest, other than the filing of a claim against an estate, in a cause or docket in a probate court, a fee to be due and payable and to be paid by the party or parties starting or initiating such adverse action or contest, but excluding other items listed in Paragraphs A, B, C, and D of this Section 1, of $25.00.

V.T.C.S. art. 3930(b), §1b(1)(c). The court concluded that the $25 fee covered various duties performed by the county clerk during the course of the suit:

A reading of Article 3930(b) shows that the $25.00 fee which the county clerk is to collect for each filed adverse action or contest covers not only the clerk's services for the initial filing of the action but also many other services which will accrue during the processing of the suit. Thus, the statutory fee is, in effect, an advance payment for the cost of services which have not been rendered at the time the fee is collected.

Rodeheaver, 601 S.W.2d at 54. We think section 51.317(b)(1) must be read in the same way.

Because the legislature has set a $75 fee that covers the filing of orders and judgments in a suit, the catchall provision is inapplicable to such filings since it applies only when the legislature has not set a fee to cover the clerk's performance of a duty.

1. The Sixty-ninth Legislature amended article 3927 to increase the initial filing fee for a suit in district court from $25.00 to $75.00. Acts 1985, 69th Leg., ch. 239, at 2038. The text of the Government Code, which was adopted in the same legislative session, states that the initial filing fee is $25.00. Gov't Code §51.317(b)(1), Acts 1985, 69th Leg., ch. 480, at 3932. The same bill that enacted the Government Code repealed article 3927. Id. at 4088. The increase in the filing fee is effective, nonetheless, because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature that enacted the code. V.T.C.S. art. 5429b-2, §3.11(c). And the codification was not intended to effect a substantive change in the law. Acts 1985, 69th Leg., ch. 480, §27, at 4090.

SUMMARY

The initial fee of $75.00 for filing a suit in district court covers the services performed by the district clerk during the course of the suit except for the service for which a fee is expressly provided. Gov't Code §51.317.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Bruce Youngblood