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 State of Texas is exempted 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 of Texas in many criminal, juvenile, and civil 

proceed& pending in the courts of your county. When these cases require the service of citations, 

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 of process, prior to judgment. 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 of Attorney General Opinion 

MW-447A are still valid. 

Attorney General Gpiion MW447A clarified Attorney General Gpiion MW-447 (1982), 

which concluded that section 1 of former article 3912e, V.T.C.S. (1925), now codified as section 

154.004 of the Local Government Code,’ did not exempt the State of Texas from having to pay filing 

fees in civil cases filed with district clerks. Section 154.004 of the Local Government Code provides 

that the state may not pay a fee or commission to a district officer or a county officer who is paid an 

annual salary, but excepts “the payment of costs in a civil 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 of the 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 part of nons&statttive revision of statutes relating 

to local government). 

=See Act 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 of the State or of any incorporated city or town . , . in any action, suit, or 

pmce&Ig. . . .“’ The opinion continued by stating that “[fliling fees are merely ‘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 is not required to pay filing fees for the filing of a case, 

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 a court or an opinion of this office, and it has been cited in subsequent opinions.4 The statute that 

it construed, former article 2072, V.T.C.S. (1925), was repealed and its substance was incorporated 

in section 6.001 of the Code, in a nonsubstantive revision of the 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 of the 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 22769 V.T.C.S. 

(1925), overlapped in subject matter with one another and with 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,. . . shall be required to give any bond incident to 

any suit filed by any such agency, official, and/or entity,for costs ofcourt or for any appeal or writ 

of error. _ . “r” Former article 2072a, V.T.C.S., exempted the banking commissioner and the State 

Banking Board from giving any “cost bond” in trial courts or on appeal or any supersedeas bond on 

appeal or writ of error. Former article 2276, V.T.C.S., exempted the State of Texas, 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. 2569 
The Honorable Eugene D. Taylor - Page 3 (DM-459) 

and heads of departments, 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” for court 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 of the 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 or writ of error taken out by the entity or officer and 

is not required to give a surety for the issuance of a bond to take out a writ 

of attachment, writ of sequestration, distress warrant, or writ of garnishment 

in a civil suit. 

(b) The following are exempt from the bond requirements: 

(1) this state; 

(2) a department of this state; 

(3) the head of a department of this state; 

(4) a county of this 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 of the Civil Practice and Remedies Code exempts the state from paying security for 

court costs, including filing fees and fees for service of process. 

“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 to take 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. 

p. 2570 
The Honorable Eugene D. Taylor - Page 4 (DM-459) 

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. In the absence of a provision 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 it may recover all 

costs from the losing party,“’ but in the event the state cannot recover its 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 of the Civil Practice and Remedies Code exempts the state 

from paying security for court costs, such as tiling fees and fees for service 

of process. Attorney General Opinion MW-447-A (1982) is reaffirmed. 

Section 6.001 exempts the state only from advance payment of filing fees 

and other court costs and does not exempt it from ultimately paying such 

costs. In the absence of a provision 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 it may 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 of Texas 

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. 

p. 2571