### DAN MORALES

.ATTORSEY CS’ERAL 

# Office oft@e !ZIttornep @eneral Qtate of QLexaS

Honorable James M. Kuboviak Braaos County Attorney Brazes County Courthouse Bryan, Texas 77803
Honorable Mike Driscoll Harris County Attorney 1001Preston, Suite 634 Houston, Texas 77002-1891 January lo,1994 Opinion No. DM-283
Re: Whether section 291.007 of the Local Government Code authorizes a county commissioners court to set a security fee of not more than five dollars to be taxed as court costs in each civil case filed in a probate court, as well as in a county court, county court at law, and district court and related questions (RQ-613)


### Dear0entie.me.n:
Each of you has asked us to clarify section 291.007 of the Local Government Code. Section 291.007 provides asfollows:

FEE FOR SECURITY. (a) The commissioners court may set a fee not to exceed $5 to be collected at ‘thetime of tiling in each civil case filed in a county court, county court at law, or district court which shah be ttied as other costs. The county is not liable for the COStS. (b) In any civil case brought by the state or a political subdivision of the state in a county court, county court at law, or district court in a county in which the commissioners court has adopted a fee under Subsection (a) of this section in which the state or political subdivision isthe prevailing party, the amount of that fee shall be taxed and collected as a cost of court against each nonprevailing party. (c) The clerks of the respective courts shah collect the costs established by Subsections (a) and (b) ofthis section. (d) If a commissioners court sets a security fee under Subsection (a) of this section, the county and district clerks shall collect a fee of S1for tiling any document not subject to the security fee. The county is not liable for the costs. The county or district clerk, as appropriate, shall collect this fee.Honorable James M. Kuboviak - Page 2 (DM-283)

Honorable Mike DriscoU

(e) Costs and fees collected under Subsection (c) or (d) of this section shallbe paid to the county treasurer, or to any other official who discharges the duties commonly delegated to the county treasurer, for deposit in the courthouse security fund established by Article 102.017, Code ofCriminal Procedure.
Acts 1993, 73d Leg., ch. 818, $2 (adding Local Gov’t Code 5291.007). Article 102.017(a), (b) of the Code of CriminaJ Procedure, to which section 291.007(e) of the Local Government Code refers, requires a county to collect as a cost of court a five dollar secmity fee from a defendant convicted in a district court for a felony offense and a three dollar security fee from a defendant convicted in a county court, county court at law, or district court for a misdemeanor offense. The county clerk is to pay these mandatory fees to the county treasurer, who must deposit them into a IImdto be known asthe courthouse security fbnd. Code Crini. Proc. art. 102.017(c) (as added by Acts 1993, 73d Leg., ch. 818.3 1);see also Local Gov’tCode 3291.007(e) (as added by Acts 1993,73d Leg., ch. 818.5 2). The cxxnmissioners court is to administer the courthouse security Cmd, which istobeusedonly to finance the following items when used for the purpose of

providing security services for buildings housing a district or county wult: (1) the purchase or repair of X-ray machines and conveying systems; (2) handheld metal detectors; (3) wakthrougb metal detectors; (4) identification cards and systems; (5) electronic kr&ing and surveiUanceequipment; (6) bailiffs, deputy sheriffs, deputy constables, or contract security personnel during times when they are providing appropriate seulrity senices; (7) @we; (8) confiscated weapon inventory and tracking systems; or (9) locks, chains, or other security hardware.
Acts 1993,73d Leg., ch. 818, $ 1(addingCodeCrim. Proc. 102.017(c), (d)).Honorable James M. Kuboviak - Page 3 (DM-283)

Honorable Mike Driscoll

Concerning section 291.007 ofthe Local Government Code, Mr. DriswU asks five questions:
1. Can the Commissioners Court set a security fee of not more

than SSto be taxed as court costs in each civil case filed in a county court, county court at law, district court. and probate court in Harris county?
2. If the Commissioners Court sets a security fee under Subsection (a) of Section 291.007 ofthe Local Government Code, is the County Clerk required to collect a fee of $1 for filing each and every document not subject to the security fee?
3. Should the County Clerk collect the said Sl fee in lieu of other filing fees (such as fees for filing deeds, assumed name certifkxtes, etc.) prescribed by law or in addition to such other tiling fee?
4. Should the Cotmty Clerk charge the $1 fee for each motion
or other pleading Sled in the county court and uxmty court at law after the fllbtg ofthe original petition at which time the security fee nottoexceedSSwaspaid?
5. Can the Commissioners Court provide for a security fee of notmorethanS5tobetsxedascourtcostsineachcivilcasefiledin
a county court, county court at law, district court, and probate court and authorize the clerks of such courts to fix the amount of the security fee at an amount not to exceed $5 in any one case?
Mr. Kuboviak asks about the correct interpretation of “any document” in section 291.007(d), which requires a county clerk in a county in which the wmmissioners court has chosen to assess a security fee “to wllect a fee of Sl for filing any donrmenr not subject to the security fee.” (Emphasis added.)
The legislature enacted section 291.907 ofthe Local Government Code, as well as article 102.107 of the Code of Criminal Procedure, in 1993. Senate Bill 243, and its wmpanion bii in the House, House Bill 882, were introduced in response to recent shootings in wmthouses, notably in Tarrant and Dallas counties. See House Comm. on Comty AfFahq Bill Analysis, S.B. 243, 73d Leg. (1993) (hereinafter Bii Analysis); Hearings on S.B. 243 Before the Senate Comm. on Intergovernmental Relations, 73d Leg. 1(Feb. 17,1993) (statement of Senator Leedom, author) (transcript available from Senate Staff Services). Courthouse violence indicated a need for increased security in the courthouses to protect both courthouse personnel and members ofthe public who visit theHonorable James M. Ruboviak - Page 4 (DM-283)

Honorable Mike Driscoll

wurthouses. See Bill Analysk, srcpro;Hearings on S.B. 243 Before the Senate Comm. on Intergovernmental Relations, 73d Leg. 1 (Feb. 17, 1993) (statement of Senator Ieedom, author) (tmnscript available from Senate StaE Services). The legislature recognized, however, that the installation ofa security system in awurthouse would add to the county budget expenses for which the county may not have provided. See Bill Analysis, supra. Consequently,

legislators

proposed to authorize awmmissioners court to levy a “user fee” to provide revenues that partially would cover the increased securities costs. See id.; Hearings on S.B. 243 Before the Senate Comm. on Intergovernmental Relations, 73d Leg. 1(Feb. 17.1993) (statement of Senator Leedom, author) (transcript available from Senate Staff Services) (referring to fee as “userfee”); id. (statement of Craig Pardue, representing Dallas County) (same); Hearings on S.B. 243 Before the House Comm. on County Affairs, 73d Leg. (statement of Representative Jones, sponsor) (Apr. 21, 1993) (same); Debate on S.B. 243 on the Ploor ofthe Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of Senator Sibley) (transcript available from Senate StatI Services) (same); id. at 6 (statement of Senator R&lift) (same).
As introduced, Senate Bill 243 and House Bill 882 both proposed to require a camty wrmnissioners wurt to set a security fee “not to exceed SS [which] shall be wllected at the time of tilii in each civil case tiled in a wunty or district court.

. ., except in suits for deliiuent taxes.” The bii did not propose to wllect a secmity fee from defendants in criminal cases; it did not propose to wllect thesecurityfee in civil cases brought in wtmty courts at law; it did not propose to wllect a Sl fee “for filing any document not subject to the security fee.” These omissions were discussed during the biis second reading on the floor ofthe Senate:

Senator Sibley: Many, many, many more people enter those courthouses than the ones that file the [civil] lawsuits, so I think [the burden of paying for increased security costs] is being put on that group [of people filing civil lawsuits] out of proportion to.

.their
use ofthe wurthouse.

. Senator Harris: Have you, in reading over this bill, have you noticed how Senator Leedom [the author ofthe bill] has intentionally leg out tax cases from paying a part of the fee? So.

. we’re gomta make cases where there’s a mother.

. .with children, trying to get a divorce to protect the children and herself, pay this extra [five] dollars.

. .but yet somebody who’s out there trying to beat the school districts out of paying their school taxes, we’re not gonna charge them

.afee for their use ofthe courthouse

.

. .Honorable James M. Kuboviak - Page 5 (DM-283)

Honorable Mike Driscoll

Did you notice that this bill..

. speci6caUy exempted out crimindcases?..

.Why shouldn’t the criminal help pay for this increased security ifit’s necessary?

You think there’d be anything wrong with somebody who goes up to get their.

. .marriage certificate paying a little something on a fee

. . ?
Senator Sibley: If they use the courthouse’ then perhaps they ought to also. Ifthis is gomta be put as a user fee,

. ,then I think anybody who uses the courthouse--maybe they oughta have a turnstile where you put a quarter in when you go through the metal detector or something.
Balanced against this wncem that the costs be spread to everyone who uses the wurthouse. was a legislative wncern, which several members of the House and Senate voicad, that court costs on civil cases are so high as to prohibit low income people from bringing a civil action. See Hearings on H.B. 882 Before the House Comm. on County ASirs, 73d Leg. (Apr. 14,1993) (statement of unknown represenmtive) (tape available from House Committee Services 05ce) (expressing wncem that costs just to file civil cam “tremendous,” so that some people no longer can afford to fde); Hearings on S.B. 243 Before the House Comm. on County AGin, 73d Leg. (Apr. 21,1993) (statement of unknown representative) (tape available from House Committee Services office) (stating that some divorce cases cost S250just to file); Debate on S.B. 243 on the Ploor of the Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of Senator Sibley) (transcript available from Senate Staff Services) (stating that many people who file lawsuits cannot afford additional fee); id. at 3 (statement of Senator Luna) (stating that people who will have to pay fee will be poor). But see id. (statement of Senator Leedom) (stating that rule 145 of Texas Rules of Civil Procedure, which authorizes person who isunable to atford costs of tiling original action may file athdavit to that effect, would apply to security fee proposed in S.B. 243). During the bill’s third reading on the floor of the Senate, Senator Leedom introduced a floor substitute that, he believed, dealt with the legislators’ wncems, particularly those concerns that more people should be subject to the security fee. Debate on S.B. 243 on the Floor of the Senate, 73d Leg. 1 (Apr. 15, 1993) (transcript available from Senate StaE Services). The floor substitute proposed exacting a five dollar fee from a convicted defendant in a felony case and athree dollar fee from a convicted defendant in
amisdemeanor case. Id. In atinther effort to spread the fee to all people wming into the wmthouse, the floor substitute proposed levying a one dollar fee on “all those that come inthe wurthouse [to] file papers.” Id.Honorable James M. Kubotiak - Page 6 (DM-283).

Honorable Mike Driscoll

In light of this legislative history, we turn now to ~yourspecitic questions. Mr. Driswll first asks whether, in Harris County, the clerk must wUect a security fee (assuming the wmmissioners court has assessed such a fee pursuant to section 291.007(a) ofthe Local Government Code) on civil cases filed in the probate court, as well as in the county court, the county court at law, and the district wurt. Usually, ofcourse, a county court has the generaljurisdiction of a probate court. Tex. Const. art. V, 5 16;Prob. Code 54. A district court generally hasjurisdiction over executors, administrators, guardians, and wards. Tex. Const. art. V, 58; Prob. Code 5S(a). However, the legislature has provided certain counties with either a statutory probate wurt, county court at law, or another statutory court exercising thejurisdiction of a probate court. Seegenerally Gov’t Code ch. 25, subch. C. Harris County has four statutory probate wurts. Gov’t Code 325.1031; see id. Q25.1034 (providing for Harris County probate wurts).
Whether a clerk may collect a security fee on a probate case filed in a statutory probate court or another statutory wurt exercising thejurisdiction of a probate wurt will depend on the resolution of two issues: tirst, whether a probate case is a “civil case” for purposes of section 291.007 of the Local Government Code; and second, whether we should interpret the list ofclerks of wurt authorized to wllect the security fee to include clerks of statutory probate courts. In regard to the first issue, we note that Craig Pardue, qresenting Dallas County, testified before.the Senate Committee on JntergovemtnentaJ Relations, that the Dallas District Attorney’s office had dratIed the language of Senate Bii 243, as introduced, “to track the law library fee that the wmmissioners currendy assess.” Hearings on S.B. 243 Before the Senate Comm. on Intergovemmental Relations, 73d Leg. 2 (Feb. 17,1993) (banscript available from Senate Staff Services). Section 323.023(a) of theL.ocdGov emment Code requires a wmtnissioners wurt to set a stun “not to exceed S20 [to] be taxed. wllected, and paid as other costs in each civil case filed in a county or district court, except suitsfor delinquent taxes.”

In Attorney General Opiion H-725 (1975) this office considered whether “civil
cases” in former V.T.C.S. article 1702i (1925),t a statute worded substantially identically to section 323.023(a) of the Government Code, included probate matters. Article 1702i authorized a clerk of a county or district court to wllect, as costs in each civil case, a fee not to exceed five dollars (the specific amount to be determined by the wmtnissioners court) for the purpose of establishing county law libraries. The opinion began analyxing the question by noting that section 12(a) of the Probate Code provides that, unless otherwise specitied in the Probate Code, “[t]he provisions of law regulating costs in

*Article 1702i,V.T.C.S.,

provided forcounty

law11%raries

n coonties

witha pcpdation

of 3S0,OOO orfewer.Acts1953,

S3d Leg., ch.416,at1014.Thelegislahue repealed article1702i

in 1977 bytheenactment

ofabillthat

alsoameoded

former article !702h, V.T.C.S. (1925). astatute pmviding for lawlibmic.s

inallcoonties.Acts1977,6&h Leg., ch.131,82,a1

271(wdbiedinpart

asLocal Gov’t Cc+ 0323.023(a)).Honorable James M. Kuboviak - Page 7 @M-283)

Honorable Mike DriswU

ordinary civil cases sbaUapply to all matters in probate.” Finding nothing in the Probate Code that covered costs for wunty law libraries, the opinion stated that article 1701i therefore would apply to probate proceedings unkss the Texas courts have held OtherwiSe. QuotingHogan v. Turlmd. 428 S.W.Zd 316 (Tex. 1%8), the opinion defined a

“civil case,” as opposed to a “criminal case,” as one that “‘isnot brought by nor in the
name of the state.‘” Attorney General Gpinion H-725 at 2. Buf see Attorney General Gpiion V-292 (1947) at 2 (defining “civil case” as suit to redress violation of contract, or to repair injury to property, person, or personal rights). Accordingly, the opinion concluded that the county law library fee is taxable as costs in all probate procee&ngs unless the action isbrought inthe name of the state. Attorney General Gpiion H-725 at 2. Based on the reasoning and conclusion of Attorney General Opinion H-725, we conclude that, for purposes of section 291.007(a) of the Local Government Code, “civil case” includes a probate matter. See also Attorney General Opinions DM-109 (1992) at 7-8 (stating that uncontested probate proceeding is “case” within article V, section 11of Texas Constitution) (quoting Attorney General Opinion V-79 (1947) at 3); JM-448 (1986) at 2-3 (wnciudii that “civil suit” as used in V.T.C.S. article 163Od,section 3(a) includes “those suits inwhich aprobate court hasjurisdiction”). Bui see homey Gewral Gpiion V-292 (wnchuJing that application filed in probate court for delayed bii calificate isnot “civilcase”within meaning ofV.T.C.S. art. 1702a-1). Notmally, therefore, any county wurt, wunty court at law, or district wurt with jurisdictionover a probatemattermustchargea sayrity fee on anyprobatecase filed in the court(Ssmning the wInmissionerswurt inthatcounty hasimposedthe sect&y fee). In our opinion, the legislature.did not intend to ditkentiate between a probate case tiled in county court, wunty court at law, or district wurt and a probate case tiled in a statutory probate court or another statutory court exercising the jurisdiction of a probate wurt2 See Gov’t Code 49 25.0003(e) (describing “statutory probate court” as “county court created by statute with probatejurisdiction”), 25.0026 (providing probate wurt with powers and duties), 25.00265 (providing for statutory probate court seal). Consequently,
we interpret section 291.007 ofthe Local Government Code to require a clerk, inacounty in which the wmmissioners wurt has assessed a security fee, to wllect a security fee on allprobatecases, regardlessofthe particular court inwhich the case isfiled.

21n wnnast,thelegislatore

deliberately

ditTerentiatod

behveen docunxnts

filedinjustice

cc&s anddoarmmufilcdinothercounty~byexcludingjustiaanutsfromthelistof~~~to wllectthesecurity

fee. SeeCode

Grim.Pnx. art.102.107(a),@)(asaddedbyActs 1993,73dLeg., ch. 818,p1);Debate

on S.B.243ontheFloorof.theHouse, 73dLeg.(May22, 1993)(statement of Rcpreswtative

Heflin)(tapeavailable

from House Committee

Services Oftice)(asking

House sponsor Representative

Jones aboot fact that billdoes not propose tolevysecmity

feeondefendants

found guilty of mizdmawr injndce coml).

. .^_Honorable James M. Kuboviak - Page 8 (DM-283)

Honorable Mike Driscoll

Mr. Driscoll’s sewnd, third, and fourth questions, and Mr. Kuboviak’s question all
wncun the one dollar fee that a wunty or district clerk must wllect, ifthe wmmissioners court inthe wunty has set a security fee, for the “filingof any document not subject to the security fee.” Key to the resolution ofmost ofthese questions isthe proper interpretation of the phrase.“any document not subject to the security fee.” From the legislative history summarized above, we know that, as originally introduced, Senate BiU243 proposed to w&act the security fee only “at the time of filing in each civil case filed in a wunty or district court.” Thus, the fee would be wllected only fram persons filing civil actions and only upon the filing ofthe initial pleading inthe action. Because ofthe concerns ofcertain legislators, however, the originaJ bill was amended to levy the fee on a broader class of people: speci6caUy, as Senator Leedom said during the third reading ofthe bill, “allthose who come in the wurthouse to file papers.” Debate on S.B. 243 on the Floor of the Senate, 73d Leg. 1 (Apr. 15, 1993) (statement of Senator Leedom, author) (transcript available 6om Senate Staff Services). Balanced against this, however, is the wncem of other legislators about the high cost ofbringing acivil action.
In light of these wncems, we believe the legislature intended to limit the phrase

“any document not subject to the security fee” to in&de only those documents that are noSrdatedtoapreviouslyfiledcivilcase(orthatdonot~~etoacriminalaction,~e &tin). We do not believe that the legislature intended, in proposing the one dollar searity fee, to guther raise the cost ofcivil lawsuits by adding a one dollar security fee to the cost of t&g each individual document f&d a&r the initial pleading in a civil case. The five dollar security fee that isdue upon the filing ofa civil action is a one-time fee that covers the entire action.3 All documents that are not fded in wmtection with an existing civil case are subject to the one dollar security fee (unless another statute specificaUy exempts a particular document from a fee such as a security fee). Of course, the newly enacted article 102.017 of the Code of Criminal Procedure applies to documents filed in wmtection with a felony offense in a district court or a misdemeanor offense in a wunty court, wmty court at law, or district wurt.
We conclude, therefore, that the “fee of Sl for filing any document not subject to the security fee,” Local Gov’t Code 8291.007(d), applies to all documents tiled pursuant to alI filing statutes, except statutes like section 12.003 of the Election Code, which expressly prohibits charging fees for voter registration not expressly authorized by statute. See also Elec. Code 5 1.002(b). Thus, as Mr. Kuboviak suggests, a county or district

‘ITtheslatutcorapoliticalsuWivisionofthestatcfilesadviladionina~courfcounty courlatlaw,ordistrictewn,thesearrityfaisnotdueattbttimcoffiling;rather,pursuanttoscction 291.007(b)

oftk Local

GwanmmtCod+thes+curityfeeistoktaxedandwllectedascostsagainsttbc nonprevailing

party, i.e.,atthewnclusion

ofthe trial.Honorable James M. Kuboviak - Page 9 (DM-283)

HonorableMikeJZhiscoll

clerk must charge the one dollar security fee on leases, wills, marriage licenses,4 and deeds. However, Mr. Kuboviak explicitly excludes 6om the list of documents subject to the one dollar wcurity fee birth cettiticates, death certificates, and military dischargePapersWe understand that Mr. Kuboviak bases the exemption for bii certificates and death certificates on Health and Safety Code sections 191.0045(d) and 191.032. Section 191.032(a) of the Health and Safety Code requires the state registrar to “arrange, bind, and permanently preserve birth, death, and fetal death certiticates in a systematic maturer.” Section 191.0045(d) requires a local registrar who issues a certified wpy of a death certiftcate to charge the same fee that the state bureau ofvital statistics charges for issuing
a certified wpy of a death certiiicate pursuant to section 191.0045(a)(2). Sections 118.011(a)(4) and 118.015 of the Local Government Code require a county clerk to wllect for issuing a certified wpy of a biih certificate or death certificate a fee in the
same amountas the state registrar of vital statistics and the local registrar of births and deaths wllect pursuant to section 191.0045 ofthe Health and Safety Code.
Sections 191.0045 and 191.032 of the Health and Safety Code and sections 118.011(a)(4) and 118.014 0ftheLocal Government Code pertain only to fees for making wrtitkd copies of bii certificates and death certigcates. These provisions are not relevant to fees that a county clerk may charge upon the tiling and recording of a bii ceatificate or death certificate. We fbtd no statute expressly exempting bii and death certificates 6om a fee such as a security fee. Fmthermore, we believe that sections 118.01l(b)(2) and 118.0216 of the Local Government Code authorize a county clerk to setandwUectarewrds management and preservation fee of no more than five dollars from aperson fUingabirth certificate or a death certificate. .SeeLetter Opinion No. 92-77 (1992) at 2 (c&xming in statement that wunty clerk should impose on all documents fited in wunty clerk’soffice records management and preservation fee). L&wise, in our opinion, section 291.007(d) authorizes the clerk to wllect afee of one dollar for security costs upon the filing ofabirth certificate or adeath certificate.
Section 192.002(b) of the Local Government Code explicitly prohibits a wunty clerk from charging a fee for the “recording and keeping of a military discharge record.” Section 192.002 does not explicitly prohibit, however, a clerk from wlkcting a fee such

‘WebelievethatMr.Kubovisk’s assertionthat a clerkmaycollecta feepursmntto section 291.007(d)

oftheLmalGovemmw Cedeuponthetilingofamarriage licenseiscorrectandwnsistent withthekgislature’s

tntent. Seesuprcr

pp.4-S(quotingdiscussion behveenSenatorsSibleyandHarris during second reading ofS.B.243onfloor

ofSenate).

Wenote that sections 118.011(7)

and118.018

of theLecaiGevemment

Cedeimpose

aS2S.wfee“forissuingamsniagelicense,” which“includes

every servicerelatingto issuaaa ofthe license.” The statntedoesnet, hewever,expresslyprohibitthe collecttonofafeesuchasthat sectton291.Mn(d) oftheL.oA GovernmmtCedeautherizesuponthe filingofamarriage

liwue.Honorable James M. Kuboviak - Page 10 (DM-283)

Honorable Mike Driswll

asthe fee section 291.007(d) ofthe Local Govermnent Code authorizes. Accordingly, we conclude that, pursuant to section 291.007(d) of the Local Government Code, a county clerk may charge a one dollar fee upon the filing ofamilitary discharge record. Legislators’ wmments about the mounting costs of tiling a civil case suggest that the legisIature intended the security fee to be cumulative of other filing fees. Additionally,
revenue from the security fees are earmarked for very specific expenses that counties must pay. Other statutory fees are similatly designated to pay specific county expenses. For example, pursuant to section 323.023(a) of the Local Government Code, a clerk of a county or district court must wllect afee, the amount ofwhich the wmmissioners court is to set but which is not to exceed twenty dollars, as a cost of court in each civil action, except a suit for delinquent taxes. A clerk is to submit revenues from this fee to the wunty treasurer, who is to deposit them into the county law library fund. Local Gov’t Code $323.023(b). The county may usethe county law library find “onlyfor the purpose of establishing the law libraty

. . or for the purpose of purchasing or leasing library materials, maintaining the library, or acquiring iinniture, shelving, or equipment for the library.” Id. Additionally, pursuant to sections 118.011(b)(2) and 118.052(3)(F) (as added by Acts 1993,73d Leg., ch. 675, 8 1, at 2509, 2510), a county clerk may (in the case of non-court documents) or must (mthe case of documents filed in connection with civil or probate actions) charge a records management and pmservau‘on fee. Revenues from this fee are.to be used “only for records management and preservation purposes in the comty” or for “specitic records preservation and automation projects.” See Local Gov’tCode 85 118.0216, 1180546(d) (as added by Acts 1993,73d Leg.. ch. 675, $j2, at 2509,2510), 118.0645(d)(asadded byActs 1993,73dLeg., ch. 675, §3. at 2509,251O). If a ckrk wllected the security fee in lieu of other statutory filing fees, such as the law bi fee or the records management and preservation fee, then those other timds Would receive no, or very little, new revenues, We do not believe the.legislature intended such a result. Thus, we believe that the five dollar security fee is cumulative of other filing fees that clerks wkct as costs of wurt. For the same reasons, we believe that the one dollar security fee levied on a document not subject to the five dollar security fee is cumulative of any other fees that a clerk wllects upon the filing of the document. Accordingly, in response to Mr. Driscoll’sthird question, we conclude that a county clerk must wllect the
one dollar fee in addition to other filingfees prescribed by law. Fiiiy, Mr. DriscoUasks whether a commissionem court may, without designating a specific amount, require the clerks ofthe various listed wurts to wllect a security fee of not more than five dollars, thereby delegating to the clerks of such courts the authority to determine the amount ofthe fee so long asthe fee is not more than five dollars in any one case. We believe the commissioners court must setthe exact amount ofthe security fee if it decides to assess such a fee. During the second reading of Senate Bill 243 on the floorHonorable James M. Ruboviak - Page 11 (DM-283)

Honorable Mike DriscoU

of the Senate, Senator Leedom emphasii that the bill was permissive in that the bii authorized, but did not require, a commissioners wurt to assess a security fee of not more than five dollars. Debate on S.B. 243 on the Floor of the Senate, 73d Leg. 5 (Mar. 17, 1993) (statement of Senator Leedom, author) (transcript available from Senate Staff Services). Senator Leedom tiuther stated, however, that “the wmmissioners court [would] have to set [the security fee].”
SUMMARY

Pursuant to section 291.007 of the Local Govemmeat Code, a commissioners court may set a security fee not to exceed five doUars, which the clerk must collect at the time of filing in each civil case filed in a county court, wunty court at law, and district court, as well as in a statutory probate court or another statutory court exercising thejurisdiction of a probate court. If the commissioners court sets such a security fee, the clerk also must wllect a security fee of one dollar for filing each document that is not related to an existing civil
case or criminal case (so long as no other statute specifically exempts the document from the imposition of a fee such as the fee section 291.007 of the Local Government Code authorixes a clerk to wllect). Of wurse, article 102.017 of the Code of Criminal Procedure applies to documents filed in wnnection with crimmal
cases in a county wurt, wunty court-at-law, or district wurt. The security fee is cumulative of other filing fees. Finally, under section 291.007. the wmmissioners court may choose whether to impose a security fee, but if it chooses to do so, it must set the fee in an amount not to exceed five dollars. The wmmissioners court may not delegate to the clerks ofcourt the responsibility of setting the amount ofthe fee.

DAN MORALES Attorney General ofTexasHonorable James M. Kuboviak - Page 12 (De-283)

Honorable Mike Driscoll

JORGE VEGA First Assistant Attorney General
WILL PRYOR Special Counsel
RENEA HICKS State Solicitor
MADELElNE B. JOHNSON Chair, Opinion Committee Prepared byKymberly K. Oltrogge Assistant Attorney General

p. 1494