Can a Texas county clerk let the public run credit accounts to pay filing fees instead of paying cash?

Texas AG Opinion JM-533: County Clerk Credit

Plain-English summary

The Hidalgo County criminal district attorney asked whether the county clerk could keep a policy letting the public, including attorneys, title companies, individuals, partnerships, and corporations, run credit accounts to pay the fees they owe the clerk. The flip side of the question was whether the clerk instead had to go cash-only on everything except filing lawsuits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

The AG concluded that county officers cannot deliver county services on credit unless the constitution specifically allows it. The Texas Constitution bars the lending of public credit in three places: article III, section 50 forbids lending the credit of the state; article III, section 52 keeps the Legislature from authorizing a county or other subdivision to lend its credit; and article XI, section 3 directly prohibits a county from lending its credit. The AG read "lend its credit" the same way in each, drawing on a constitutional treatise and on the Texas Supreme Court's decision in City of Cleburne v. Brown, which held that the "loan its credit" language kept a city from taking corporate bonds instead of cash for transferring its waterworks. Providing county services now and collecting the fee later is a form of extending credit, so the constitutional bars reach it, and county officers cannot be authorized to do it absent some other constitutional provision. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

There was one exception the constitution requires. The clerk must file and docket a lawsuit petition presented for filing even without immediate payment. That comes from the open-courts guarantee of article I, section 13, which says all courts shall be open and every person shall have a remedy by due course of law, reinforced by Rule 142 of the Rules of Civil Procedure, which lets the clerk demand security for costs but still directs the clerk to file the petition and enter it on the docket. Refusing to file for nonpayment would deny the petitioner that constitutional right. Outside that court-access context, the AG found no warrant to extend credit for county fees, fines, and other charges that do not similarly implicate constitutional rights. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Currency note

This opinion was issued in 1986. The constitutional lending-of-credit provisions it construes remain in the Texas Constitution, but later court decisions and opinions may refine how they apply to government fees, and the Rules of Civil Procedure on court costs and indigency have been amended since. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Why can't a county clerk just run tabs for regular customers like title companies?

Because providing services now and collecting later is treated as lending the county's credit, which the constitution forbids. The AG concluded that county officers cannot deliver county services on credit unless a constitutional provision authorizes it, relying on the bans in article III, sections 50 and 52, and article XI, section 3. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Is there anything the clerk must accept without payment up front?

Yes, a lawsuit petition. The AG concluded that the clerk must file and docket a petition presented for filing without requiring immediate payment, because refusing would deny the petitioner the constitutional right to open courts under article I, section 13, and Rule 142 directs the clerk to file the petition even while requiring security for costs. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Does that mean everything the clerk does has to be on credit-free terms except lawsuits?

Effectively yes for the court-access piece. The AG explained that the open-courts requirement compels accepting a petition for filing, but there is no warrant to extend credit for county fees, fines, and other charges that do not similarly impinge on constitutional rights. Those can and should be handled on a cash basis. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

What about people who genuinely cannot afford the costs?

The opinion pointed to the indigency mechanism rather than credit. It cited Rule 145 of the Rules of Civil Procedure, which allows an affidavit of inability to give security for costs, as the route for those who cannot pay, distinct from extending open-ended credit to paying customers. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Background and statutory framework

The three lending-of-credit provisions work together. Article III, section 52 bars the Legislature from authorizing any county, city, town, or other subdivision to lend its credit or grant public money in aid of any individual or corporation. Article XI, section 3 directly forbids a county or municipal corporation from loaning its credit. Article III, section 50 bars the Legislature from giving, lending, or pledging the credit of the state for anyone's liabilities. The AG treated "lend its credit," "loan its credit," and "lending of the credit" as carrying the same meaning across these sections, a reading supported by a constitutional treatise and by the interpretive rule that words in one part of the constitution may be understood by reference to other parts (State v. Gillette's Estate). City of Cleburne v. Brown supplied the concrete holding that the credit-lending bar prevents a local government from taking something other than cash (there, corporate bonds) in a transaction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Against that backdrop, the open-courts guarantee carved out the one required exception. Article I, section 13 promises that courts shall be open and every person shall have a remedy by due course of law, and Rule 142 implements it by having the clerk file and docket the petition even while securing costs (see Dillingham v. Putnam; Union Central Life Ins. Co. v. Chowning; compare Nelson v. Krusen; LeCroy v. Hanlon, decided July 2, 1986, on court-access rights). The AG concluded the clerk must therefore accept a petition for filing without immediate payment, but that this reasoning does not extend to ordinary county fees, fines, and charges (see Robinson v. State), and it pointed to the affidavit of inability under Rule 145 for those who cannot pay. The AG relied on its prior opinions MW-461 and S-42 for the credit-lending analysis. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Constitutional provisions and rules:

• Tex. Const. art. III, § 50 (lending the credit of the state)
• Tex. Const. art. III, § 52 (authorizing subdivisions to lend credit)
• Tex. Const. art. XI, § 3 (county lending of credit)
• Tex. Const. art. I, § 13 (open courts)
• Tex. R. Civ. P. 142 (security for costs); Tex. R. Civ. P. 145 (affidavit of inability)

Cases:

• City of Cleburne v. Brown, 11 S.W. 404 (Tex. 1889)
• State v. Gillette's Estate, 10 S.W.2d 984 (Tex. Comm'n App. 1928)
• Dillingham v. Putnam, 14 S.W. 303 (Tex. 1890)
• Union Central Life Ins. Co. v. Chowning, 26 S.W. 982 (Tex. 1894)
• Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984)
• LeCroy v. Hanlon (Tex. 1986)
• Robinson v. State, 29 S.W. 788 (Tex. Crim. App. 1895)

The opinion also cited a constitutional treatise (Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis) and Attorney General Opinions MW-461 (1982) and S-42 (1953), which appear in the reproduced text below.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0533
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0533.pdf

Original opinion text

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

The Attorney General of Texas

August 18, 1986

JIM MATTOX
Attorney General

Honorable Rene Guerra
Criminal District Attorney
Hidalgo County Courthouse
Edinburg, Texas 78539

Opinion No. JM-533

Re: Whether a county clerk may deliver the services of his office on credit

Dear Mr. Guerra:

You have submitted the following question:

Does it violate article III, sections 50 and 52, of the Texas Constitution for the county clerk of Hidalgo County, Texas to maintain a policy of allowing the general public, including attorneys, title companies, individuals, partnerships, and corporations, to maintain credit accounts for paying fees due the county clerk? Stated in the converse, must the county clerk adopt a cash only policy on all fees except the filing of lawsuits?

The provisions of the Texas Constitution you cite, sections 50 and 52 of article III, as well as article XI, section 3, prohibit the "lending of credit" by the state or its subdivisions. Section 50 prohibits lending the credit of the state, and section 52 prevents the legislature from authorizing political subdivisions to lend their credit -- thereby inhibiting counties indirectly. Article XI, section 3, is a direct prohibition against the lending of its credit by a county.

With exceptions not pertinent here, article III, section 52, reads:

[T]he Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company. (Emphasis added).

Article XI, section 3, reads:

No county, city, or other municipal corporation shall hereafter become a subscriber to the capital of any private corporation or association, or make any appropriation or donation to the same, or in anywise loan its credit; but this shall not be construed to in any way affect any obligation heretofore undertaken pursuant to law. (Emphasis added).

The other provision, section 50 of article III, declares:

The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State in aid of, or to any person, association or corporation, whether municipal or other, or to pledge the credit of the State in any manner whatsoever, for the payment of the liabilities, present or prospective, of any individual, association of individuals, municipal or other corporation whatsoever. (Emphasis added).

In each of these provisions, the phrases "lend its credit," "loan its credit," and "lending of the credit" appear to have the same meaning. The meaning of the section 50 language was considered in Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977) volume 1 at page 225, where it was said:

Section 50 states that the legislature may not 'give' the credit of the state to anybody, 'lend' the credit of the state to anybody, or 'pledge' the credit of the state for anybody. . . . This is an involved and somewhat imprecise way of saying that the state may not aid anybody by lending him money; by providing him land, goods, or services on credit; or by guaranteeing payment to a third party who aids anybody by lending him money or providing him land, goods, or services on credit. (Emphasis added).

See Attorney General Opinion MW-461 (1982). The Supreme Court of Texas similarly concluded in City of Cleburne v. Brown, 11 S.W. 404 (Tex. 1889) that the article XI, section 3, language specifying that a municipality could not in anywise "loan its credit" prevented a city from accepting, in lieu of cash, corporate bonds in payment for transferring its waterworks to a corporation.

In construing the meaning of particular words in a part of the Constitution of Texas, such as article III, section 52, resort may be had to other sections of the instrument for the sense in which the words are used. State v. Gillette's Estate, 10 S.W.2d 984 (Tex. Comm'n App. 1928). In the light of the City of Cleburne holding, we believe the proscriptions of article III, section 52, and article XI, section 3, mean that county officers are not authorized -- and cannot be authorized -- to deliver county services to individuals, associations or corporations on credit unless some other provision of the constitution authorizes it to do so.

You have noted the provisions of Rule 142 of the Texas Rules of Civil Procedure, authorizing the clerk to require security for costs from the plaintiff before issuing any process, but specifying that the clerk "shall file the petition and enter the same on the docket." The emphasized provision, we believe, is necessary to comply with the command of article I, section 13, of the Constitution of Texas that

[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

See Dillingham v. Putnam, 14 S.W. 303 (Tex. 1890). See also Union Central Life Ins. Co. v. Chowning, 26 S.W. 982 (Tex. 1894); cf. Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984).

Thus, the county clerk must file and docket a petition presented for filing without requiring immediate payment therefor, because to refuse would deny the petitioner his constitutional right to open courts. Cf. LeCroy v. Hanlon, ___ S.W.2d ___ (Tex. 1986) (No. C-4745, opinion delivered July 2, 1986). But there is no warrant to extend credit for county fees, fines and other charges not similarly impinging on constitutional rights and privileges. See Robinson v. State, 29 S.W. 788 (Tex. Crim. App. 1895); Attorney General Opinions MW-461 (1982), S-42 (1953). Cf. Tex. R. Civ. Proc. 145 (affidavit of inability to give security).

SUMMARY

County officers are not authorized -- and cannot be authorized -- to deliver county services to individuals, associations or corporations on credit unless some provision of the Constitution of Texas authorizes it to do so.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General