JIM MAlTOX Attorney General

Supreme Court Suildlng P. 0. BOX 12S4a A”s*in. TX. 78711. 254S 51214752501 Telex QlO/S74-1387 Telecopier 51214750288

714 Jackson, Suite 700 Dallas, TX. 75202-4SC6 21417426844

4S24 Alberta Ave.. Suite 160 El Paso, TX. 799052793 9151533-3454

1Wl Texas, Suite 7M) 2. 'Does commissioners court, the county clerk Houston, TX. 77002-3111 or the judge in each case institute collection

of 713i2255888 the fee?

SO5 Broadway, Suite 312 Lubbock, TX. 79401-3479 SOW7476238

4308 N. Tenth, Suite B McAllsn. TX. 78501-1885 51ZSS2.4547

200 Main Plaza, Suite 400 San Antonio, TX. 782052797 51212254191

An Equal OpportUnitYI Affirmative Action Employer 

# The Attorney General of Texas ’
Pcbruary21. 1986

Honorable

Hike Drtscoll Harris CountyAttorney 1001 Preston,Sui:e 634 Houston

, Texas K'OO2 Opinion No. JM-434
Rc: Whether a countyclerk is entitled to receive a fee in connection with administration

of trust funds under article2558a. section4c(a), V.T.C.S. Dear Mr. Driscoll:
You have reqxsted our opinionin regard to the implementation of section

k(a) of a:cticle

2558a. V.T.C.S. Specifically you have asked: 1. .4t

what point in a lawsuit would the fee be assessed

and collected?

3. !fay

the county clerk receive a reasonable fee for, holding the trust funds pursuant to the decisionof the Texas SupremeCourt in Sellers v. Harris Cfounty, 483 S.W.2d 242 (Tex. 1972)?
4. Is the county clerk entitled to a reasonable fe'e for holding trust funds in probate matters? Section4c(a)provides:

To o,ffset

the expense of handling District Clerk aad CountyClerkTrust Funds for the benefit of 1it:lgsnts

in civil proceedings, a county v.ay collect from the nonprevailingparty in the litigation or from the party the court shall designate

a fee of $50.
V.T.C.S. art. 25.5lla, §4c(e). The Texas SupremeCourt in Sellersv. Aarris County,403 S.W.2d 242 (Tex. 1972)described article255ga as:

p, 1985Honorable Mike Driscoll- lltrge 2 (JN-434) - -

a comprehensive statute setting procedure and liabilityin thq!

handling of trust funds in the possession of county and district clerks. It makes the county liable if funds on depositwith its designated

depository

are lost. The clerk Is reliwed of responsibility for the safekeeping of the funds so lcng as they are deposited In the legallyselectedldepository.
483 S.W.2dat 243. Prior to Sellers,su~ca, Barris County relied on section 4a to collectall interest earned on the trust fund and place this interest in the general fund of the county as an offset to the expense of handling the trust fund for the benefit of the litigants. But. the supremecourt in Sellers, i=, held that interestearnedby deposit of money owned by the parties to a lawsuit is the property of the ovners and not the county. 483 S.W.2d at 243. Accordingly,we beliave from the expres:l words of section 4c(a) the legislature intendedto allow the cou~:y to collectonly a $50 fee to offset the expenseof handlingthe trust fund.
You first ask. at 4x;lt point in the lawsuit would the fee be. assessedand collected. The provision does not specifya particular time in which the fee may be collected. The SupremeCourt of Texas has promulgated

rules re!.atcd

to cost in civil cases. See Tex. R. civ. P. at 125-49; see d.80 Gov't. Code 022.004. Theseles are --- applicable

to all civil cues instituted in the state courts. Rule 129 outlinesthe procedure for collectingcost. Rule 129 providesin part:

If any -L responsiblefor costs fails or refuses to pay the same within ten days after demsnd for payment, the clerk or justice of the peacemay make c:c:rtified copy of the bill of costs thm due, and place the same in the hands of the sheriff or conr:t:able for collection. All taxes imposed on law proceedingsshall be included in the bill of costs. Such certified bill of costs shall have the force and effect of an execution. The r-al of a case by appeal shall not prevent the issuance

of an execution

for costs. (Emphasis added).
Tsx. R. Civ. P. 129. Th:ls rule contemplates

that the cost is to be collected from the responsible party when it is due. Thus, it is reasonable

to conclude

that the functionfor which the cost is taxed has been performed. Cf. AttorneyGeneralOpinionH-756 (1975) (clerk may not collecta feefor serviceof process before service is made).

P. 1986Ronorsble Mike Driscoll- Page 3 (JM-434)

Moreover,Rule 125 provii.es that parties responsible are only liable for costs "incurred" CL!, when the funds have been tenderedto the county clerk to be held k1 trust. Section 4c(a) authorizes the county to collectthe $50 fee from either the nonprevailing party or from the party the court shall designate. V.T.C.S. srt. 2558a, 04-z(a). Accordingly,before a district or county clerk may collect the $50 fee. the expense of handling the trust fund must have been incurred. The assessmentof cost will necessarilyawait the outcome of the litigation. Cf. hhitleyv. King, 581 S.W.2d 541 (Tex.Civ. App. - Fort Worth 1979,T writ).
In regard to your swond question, it is not clearunder section 4c(a) who is required to institutecollectionof the fee. Section 4c(a) only provides that "a county"may collect the fee. V.T.C.S. art. 2558a. S4c(a). A:.though counties normally act through the commissioners

court, artlcle 2558s contemplates that the county and district clerks shall render the service of handling the trust fund. See generallySellersv. Harris County, 483 S.W.2d 242 (Tex. 1972). Thus, we believe that th; county clerk is required to institutethe collectionof the $50 fw under article 3930(10), V.T.C.S. Article 3930 providesin part:

County cler'w
. . . are hereby authorizedand requiredto collectthe folloming fees for services renderedby them to all persons, firms, corporations, legal entities, governmental

agencies

and/or governmental

representatives:

. . . . (IO) For such other duties prescribed,authorized, and/or permitted by the Legislature for which no fee f.sset by this Act, reasonablefees shallbe chargt:d.(Emphasis added). V.T.C.S. art. 3930(10). Accordingly, we conclude that the county clerk is responsiblein each case for instituting the collection

of the fixed fee of $50 aut'borized by section4c(a). Poreover, Rule 129 of the Texas Rules of Cdvil Procedure, as quoted above. also Implies that county or district clerksinstitute the collection

of costs due. Cf. Tax. R. Civ. P. 129. - You next ask whether the county clerk may receive a reasonable fee pursuantto Sellers 'i. Harris County,483 S.W.2d 242 (Tex. 1972), for holding the trust funId.We think not. Sellers, s, held that the county may charge a fee which is reasonably relatedto the value of the county's services. Id. at 244. However, section 4c(a) specifies that the fee for handling the tNSt funds is to be $50.

p. 1907Honorable **Mike** Driscoll- :?age 4 (Jkf-434)

Thus, the legislature has determined that this fee Is reasonably related to the value of 1;h.e services;and, therefore. no sdditioual fee may be assessed. Finally,

you ask **whether a**  county clerk is entitled to collecta reasonablefee for holding trust funds in probatematters. Section 12(s) **of** the ProbateCode p,rovides:

The provisfcns of law regulating cost **in** ordinarycivil cases shall apply to all mattersin probatewhen noExpressly provided for in this Code. (Emphasis

added). Section 4c(a) of article 2558a. V.T.C.S., applies to all "civil proceedings,"

and we are unaware of any express provision In the Probate Code relatingto t,he expense of handlingdistrictclerk and countyclerk trust funds for the benefit of the litigants. Therefore, section 4c(a) is applicable to probate proceedings. For the reasons specifiedabove, the county or district clerk is entitledonly to a fixed fee of $50 for handlingthe trust fund in probste matters. SUMMARY Beforea district

or county clerkmay collect a $50 fee pursuant to section 4c(a) of article 2558a. V.T.C.S., the expense of the district or county clerk for handlingthe trust fundmust have been incurred,

and theremust have been a designation of a responsible party by the court. Article 3930(10),

V.T.C.!;.,

requires the county clerk to institute

this zollection

of the fixed fee of $50 authorizedby section 4c(a). Section 4c(a) of article 2558a. V.T.C.S., requires that the county receivea reasonable fee of $50. No other fee is contemplated

by the provision. Finally section 4c(a) is read t:ogether with section 12(a) of the ProbateCode, the countyclerkmay collectthe $50 fee in probatel>roceedings.

JIM HATTOX Attorney

Generalof Texas JACK HIGHTOWER First Assistant

AttorneyGeneral

p. 1988. Honorable Mike Dtiscoll - P,aSe 5 ml-434)

MARY KELLER Executive

**Assistant** Attorney General
ROBERTGRAY Special

Assistant

**Attorney** General
RICK GILPIN Chairman,

OpinionCommittee Prepared

by Tony Guillory Assistant

AttorneyGeneral

p. 1989