DAN MORALES

ATTORNEY GENERAL 

### QBffice of tiy Rlttornep @enera mite of aexae December 12,1997 The Honorable Eugene D.Taylor Williamson County Attorney Courthouse Annex, Second Floor 405 Martin Luther Ring, Box 7 Georgetown, Texas 78626 Opinion No. DM-459 Re: Whether the StateofTexas isexempted from paying filing fees and other court costs prior to judgment; reconsideration of Attorney General Opinion MW-447A (1982) (RQ-943) Dear Mr. Taylor: You state that your office represents the State ofTexas inmany criminal, juvenile, and civil proceed& pending in the courts ofyour county. When these casesrequire the service ofcitations, subpoenas, or other process in other counties of the state, you have relied on Attorney General Gpiion MW-447A (1982) as authority that the state need not pay security for costs, such as filing fees and fees for service ofprocess, prior tojudgment. You state that sheriffs and constables have been questioning the continued viability of Attorney General Gpinion MW-447A and have been demanding fees in advance. You ask whether the conclusions ofAttorney General Opinion MW-447A are still valid. Attorney General Gpiion MW447A clarified Attorney General Gpiion MW-447 (1982), which concluded that section 1of former article 3912e, V.T.C.S. (1925), now codified as section 154.004ofthe Local Government Code,’didnot exempt the StateofTexas fromhaving topay filing fees incivil cases filed with district clerks. Section 154.004ofthe Local Government Code provides that the statemay not pay afee orcommission to adistrict officer oracounty officer who ispaid an annual salary, but excepts “the payment ofcosts in acivil case or eminent domain pmceeding by the state.” Attorney General Opinion MW447A pointed out that “[t]he state is liable for costs in a case where costs are properly adjudged against it as the non-prevailing party, and where no statute exempts it t?om costs,” but also noted that former article 2072, V.T.C.S., now codified as section 6.001 ofthe Civil Practice and Remedies Code (“Code”),2 provided in pertinent park ‘mo security

‘See Act of February 25,1959,56th Leg., R.S., ch. 23,s 1,1959 Tex. Gem.Laws 35,36 (former art. 3912~. V.T.C.S. (1925)). Act of May 1, 1987,7Oth Leg., R.S., ch. 149.5 1, 1987 Tex. Gm. Laws 707,934, 1307 (repeal of art.3912e. V.T.C.S. and adoption of Local Gov’t code 5 154.004 as partof nons&statttive revision of statutes relating to local government).

=SeeAct of May 17,1985,69tb Leg., RS., ch. 959, $5 1.9, 1985 Tex. Gett. Laws 3242,3244-45,3322 (repeal (continued...)The Honorable Eugene D. Taylor - Page 2 (DM-459)

for costs shall be required ofthe State or of any incorporated city or town . , .in any action, suit, or pmce&Ig. . . .“’ The opinion continued by stating that “[fliling fees aremerely ‘security for costs, so that advance payment of such may not be required.” See Rodeheaver v. Afridge, 601 S.W.2d 51, 54 (Tex. Civ. App.--Houston [Ist Dist.] 1980, writ refd n.r.e.). Attorney General Opinion MW447A concluded that “the state isnotrequired topay filing fees forthe filing of acase, pay fees for service of citation or give any other Security for costs, including any appellate costs, although the state will ultimately be liable for costs should it be the losing party.” Since Attorney General Opinion MW-447A was issued in 1982, it has not been overruled by acourt or an opinion ofthis office, and ithasbeen cited in subsequent opinions.4 The statute that itconstrued, former article 2072, V.T.C.S. (1925),was repealed and its substance was incorporated in section 6.001 ofthe Code, in anonsubstantive revision ofthe statutes relating to civil procedure and civil remedies and liabilities.’ The revision was undertaken for the purposes of “eliminating repealed, invalid, duplicative, and other ineffective provisions, and improving the draftmanship of the law
. . .without altering the sense, meaning, or effect ofthe law.‘* The subject’matter of three other exemptions from court costs was also incorporated into section 6.001 of the Code. These provisions, former articles 2794’ 2072a,’ and 22769V.T.C.S. (1925), overlapped in subject matter with one another andwith former article 2072. Former article 279a, V.T.C.S., provided in part that “[n]either the State of Texas, nor any county, nor any state department, nor the head of any state department,. ..shallberequired togive any bond incident to any suit filed by any such agency, official, and/or entity,for costs ofcourt or for any appeal or writ oferror. _.“r” Former article 2072a, V.T.C.S., exempted the banking commissioner and the State Banking Board from giving any “costbond” intrial courts or on appeal or any supersedeas bond on appeal or writ oferror. Former article 2276, V.T.C.S., exempted the State ofTexas, its departments

of art. 2072, V.T.C.S. (1925), adopting Civ. Prac. &Rem Code $6.001 and repealing art. 2072, V.T.C.S. as part of nonsubstantive revision of statutes relating to civil procedure and civil remedies and liabilities).

‘V.T.C.S. art. 2072 (West 1984); sac Act ofApril IS, 1909,3lst Leg., 1st C.S., ch. 14,s I,1909 Tex. Gen. Laws 284,284.

‘See Attorney General Opinions DM-360 (1995), DM-250 (1993), DM-26 (1991).

‘See Act of May 17, 1985,69th Leg., R.S., ch. 959, $5 1,9,1985 Tex. Gen. Laws 3242,3244-45,3322. 6Forewrd to Proposed Code, Civ. Prac. & Rem. Code at IX (Vemons 1986).

‘Act of April 26,1957,55th Leg., R.S., ch 213,s I,1957 Tex. Gen. Laws 439.

‘Act of March 25,1927,4Otb Leg., R.S., ch. 135,s 1.1927 Tex. Gen. Laws 203,203.

‘Act of May 9, 1935,44th Leg., R.S., ch. 283, $ 1, 1935 Tex. Gen. Laws 670,670. “Act of April 26, 1957, see supra note 7.
p. 2569The Honorable Eugene D. Taylor - Page 3 (DM-459)

andheads ofdepartments, and various federal entities from giving “any bond
. . .for costs of Court or for any appeal or writ of error. . .nor any surety for the issuance of any bond for the taking out of writs of attachment, sequestration, distress warrants, or writs of garnishment in any civil case.” In these three exemptions, the legislature used the term %ond” instead of %eeurity” to describe the exemption from advance payment of filing fees and other court costs. In the context of these and similar exemptions, the term “bond” forcourt costs is synonymous with “security” for court wsts.” The recodification combined the four cost exemption statutes into one, and chose the term “bond” for court costs to describe the exemption. Section 6.001 ofthe Code provides in part:

(a) A governmental entity or officer listed in~Subsection (b) may not be required to file a bondfir court costs incident to a suit tiled by the entity or officer or for an appeal orwrit of error taken out by the entity or officer and is not requiredtogive a surety for the issuance of abondto takeouta writ ofattachment,writ of sequestration, distress warrant, or writ of garnishment in acivil suit. (b) The following are exempt from the bond requirements: (1) this state; (2) adepartment ofthis state; (3) the head of a department ofthis state; (4) a county ofthis state; 12

. . . . The repeal of article 2072,V.T.C.S. (1925), and the reenactment of its substance in section 6.001 of the Code did not change the meaning of article 2072, nor did it change the conclusion of Attorney General Opinion MW47A (1982). We reaffirm Attorney General Opinion MW-447A. Section 6.001 ofthe Civil Practice and Remedies Code exempts the state from paying security for court costs, including filing fees and fees for service ofprocess.

“See City ofAthens v. Evans, 63 S.W.2d 379,382 (Tex. Comm’n App. 1933, jttdgm’t adopted) (stt. 2072, V.T.C.S. (1925) refers not only to bonds as security for costs in trial courts, but also to bonds as security for costs of sn appeal); Montoya v.McManus, 362 P.2d 771,777 (NM. 1961) (“bond” for payment of costs that may be adjudged against parry in election contest is syncnlymo”s with “Security”).

“Civ. Prac. & Rem. Code 5 6.001 (emphasis added). Section 6.001(c) provides thst a county or district attorney is not exempt from filing s bond totake out an extrsonGtsty wit unless approved by the commissioners court in an action in behalf of the county or the attorney general in an action brought in behalf of the state.

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We further point out that section 6.001 of the Civil Practice and Remedies Code only exempts the state from advance payment of filing fees and other court costs but does not exempt it from ultimately paying such wsts. Inthe absence of aprovision exempting the state from liability for costs in a particular type of case, such as section 154.004 of the Local Government Code, the state, like other parties, is liable for its costs.” When the state prevails in a suit itmay recover all costs from the losing party,“’but in the event the state cannot recoverits costs from the losing party, the state will have primary liability to pay them. See Rodeheaver, 601 S.W.2d at 54; Roby v. Hawthorne, 84 S.W.2d 1108, 1109 (Tex. Civ. App.--Dallas 1935, writ dism’d). 

### SUMMARY Section 6.001 ofthe Civil Practice and Remedies Code exempts the state from paying security for court costs, such as tiling fees and fees for service ofprocess. Attorney General Opinion MW-447-A (1982) is reaffirmed. Section 6.001 exempts the state only from advance payment offiling fees and other court costs and does not exempt it from ultimately paying such costs. In the absence of aprovision exempting the state from liability for costs in a particular type of case, the state is liable for its costs. When the state prevails in a suit itmay recover all costs t?om the losing party, but if it cannot recover its costs from the losing party, the state will have primary liability to pay them.

DAN MORALES Attorney GeneraJ ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General

“Tex. R. Civ. P. 125-27. “Id. 131.

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