Did the Harris County clerk have to collect the appellate-system court-cost fee in probate proceedings?

Texas AG Opinion JM-448: Court-Cost Fee in Probate Matters

Plain-English summary

Harris County created an appellate judicial system fund and set a $5 court-cost fee for each civil suit filed in listed county, probate, and district courts. The county attorney asked whether probate proceedings counted as civil suits for the fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

JM-448 concluded that the fee applied to probate proceedings. Although the Texas Constitution used "civil jurisdiction" in a way that did not include probate jurisdiction, the legislature had expressly listed probate courts in the fee statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

The legislative history strengthened that reading because "probate court" was added during the bill process. The opinion also noted that probate matters were generally treated like other civil actions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Currency note

This opinion was issued in 1986. 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

Why did the fee statute mention probate courts?

JM-448 said there would have been no reason to add "probate court" to the list unless the legislature intended the court-cost fee to reach probate matters. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Did the constitutional distinction between civil and probate jurisdiction control?

No. The opinion recognized that distinction but read "civil suit" in the context of the particular statute, which expressly included probate courts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Which courts were listed for the fee?

Article 1630d listed county courts, county courts at law, probate courts, and district courts, while excepting delinquent-tax collection suits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Background and statutory framework

The appellate judicial system fund was intended to assist courts of appeals with cases arriving from trial courts and to defray appellate operating costs that one county had to reimburse to another. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Harris County's commissioners court had entered its implementing order on August 27, 1985, effective September 1, 1985. JM-448 addressed only whether probate proceedings fell within the statutory filing category. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Citations and references

• article 1630d, V.T.C.S., sections 1 through 3
• Texas Constitution article V, sections 8, 16, 17, and 22
• article 1970-110a, V.T.C.S.
• Probate Code sections 3 and 5
• Patterson v. City of Dallas, 355 S.W.2d 838 (Tex. Civ. App. - Dallas 1962, writ ref'd n.r.e.)
• State v. Gillette's Estate, 10 S.W.2d 984 (Tex. Comm'n App. 1928, judgment adopted)
• Boman v. Howell, 618 S.W.2d 913 (Tex. Civ. App. - Fort Worth 1981, no writ)
• Kotz v. Kotz, 613 S.W.2d 760, 761 (Tex. Civ. App. - Beaumont 1981, no writ)
• Maddox v. Surber, 677 S.W.2d 226 (Tex. App. - Houston [1st Dist.] 1984, no writ)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0448
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0448.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

March 10, 1986

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-448

Re: Whether a county clerk must collect $5.00 in court costs in probate matters under article 1630d, V.T.C.S.

Dear Mr. Driscoll:

You have asked whether probate proceedings are civil suits within the meaning of section 3 of article 1630d, V.T.C.S. Article 1630d, V.T.C.S., provides in part as follows:

Sec. 2. The commissioners court, by order, shall establish an appellate judicial system fund to:

(1) assist the courts of appeals in the supreme judicial district of the State of Texas in processing appeals filed from the county court, county courts at law, probate courts, and district courts; and

(2) defray costs and expenses incurred for the operation of the court of appeals within the State of Texas for which the county is required by law to reimburse other counties within the supreme judicial district.

Sec. 3. (a) In order to fund the appellate judicial system, the commissioners court of each county within the supreme judicial district of the State of Texas shall set a court costs fee of not more than $5 for each civil suit filed in a county court, county court at law, probate court, or district court in the county, except for suits for the collection of delinquent taxes. (Emphasis added).

You have informed us that on August 27, 1985, pursuant to section 2 of article 1630d, the commissioners court of Harris County approved an order establishing an appellate judicial system fund and setting a court cost fee of $5.00 for each civil suit filed in a county court, county court at law, probate court, or district court, except for suits for collection of delinquent taxes. The order became effective on September 1, 1985.

It is our duty to give full recognition to the legislative intent and purpose in construing section 3(a). See Patterson v. City of Dallas, 355 S.W.2d 838 (Tex. Civ. App. - Dallas 1962, writ ref'd n.r.e.). We must ascertain whether probate proceedings are civil suits in the context of section 3(a). As quoted above, section 3(a) of article 1630d allows the county clerk to collect the $5.00 fee for each "civil suit" filed in specified courts in the counties in a court of appeals district with a population of at least three million. V.T.C.S. art. 1630d, §§ 1, 3(a). Although the term "civil jurisdiction" as used in the state constitution does not include probate jurisdiction, see Tex. Const. art. V, §§ 8, 16, 17, 22; State v. Gillette's Estate, 10 S.W.2d 984 (Tex. Comm'n App. 1928, judgment adopted), we believe that the legislature's use of the term "civil suit" in section 3(a) necessarily includes those suits in which a probate court has jurisdiction.

Jurisdiction over probate proceedings is conferred by the constitution and statutes of this state. See Tex. Const. art. V, §§ 8, 16, 22. See also V.T.C.S. art. 1970-110a et seq. (statutory probate courts in Harris County); Boman v. Howell, 618 S.W.2d 913 (Tex. Civ. App. - Fort Worth 1981, no writ). Jurisdiction of some probate courts, including the probate courts in Harris County, is limited by statute to the general jurisdiction of a probate court. See V.T.C.S. art. 1970-110a, § 2; Prob. Code, § 3(11). Probate matters may be filed in a county court, statutory probate court, or certain county courts at law. See Prob. Code § 5.

Legislative history reveals that there was no reason to list "probate court" in section 3(a) of article 1630d, V.T.C.S., unless the legislature intended the court costs fees to apply to probate matters. The original version as introduced in the Texas House of Representatives did not include the term "probate court" as coming under the jurisdiction of the appellate judicial system. However, a House Committee substitute, passed by both houses, added the term within the provision. See H.B. No. 1889, Bill File for H.B. No. 1889, Legislative Reference Library. Consequently, we conclude that the legislature would not have provided a court costs fee for civil suits filed in a probate court unless it intended civil suits to include probate proceedings. See Prob. Code § 3(bb) (definition of probate matters or probate proceedings).

Moreover, this conclusion is consistent with established judicial policy that probate matters are generally treated in the same manner as any other civil action. See Kotz v. Kotz, 613 S.W.2d 760, 761 (Tex. Civ. App. - Beaumont 1981, no writ); see also Maddox v. Surber, 677 S.W.2d 226 (Tex. App. - Houston [1st Dist.] 1984, no writ).

SUMMARY

Section 3(a) of article 1630d, V.T.C.S., authorizes the county clerk, on order of the commissioners court, to collect a court cost fee of $5.00 for all civil suits, including probate proceedings, filed in a county court, county court at law, probate court, or district court in certain courts of appeals districts.

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 Tony Guillory
Assistant Attorney General