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 

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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 

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McAllsn. TX. 78501-1885 

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San Antonio, TX. 782052797 

51212254191 

An Equal OpportUnitYI 

Affirmative Action Employer 

The Attorney General of Texas ’ 

Pcbruary 21. 1986 

Honorable Hike Drtscoll 

Harris County Attorney 

1001 Preston, Sui:e 634 

Houston , Texas K'OO2 

Opinion No. JM-434 

Rc: Whether a county clerk is entitled 

to receive a fee in connection with 

administration of trust funds under 

article 2558a. section 4c(a), V.T.C.S. 

Dear Mr. Driscoll: 

You have reqxsted our opinion in 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 

decision of the Texas Supreme Court 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? 

Section 4c(a) provides: 

To o,ffset the expense of handling District 

Clerk aad County Clerk Trust Funds for the benefit 

of 1it:lgsnts in civil proceedings, a county v.ay 

collect from the nonprevailing party 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 Supreme Court in Sellers v. 

Aarris County, 403 S.W.2d 242 (Tex. 1972) described article 255ga as: 

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

- - 

a comprehensive statute setting procedure and 

liability in thq! handling of trust funds in the 

possession of county and district clerks. It 

makes the county liable if funds on deposit with 

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 

legally selected ldepository. 

483 S.W.2d at 243. 

Prior to Sellers, su~ca, Barris County relied on section 4a to 

collect all 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 

supreme court in Sellers, i=, held that interest earned by 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 

intended to allow the cou~:y to collect only a $50 fee to offset the 

expense of handling the trust fund. 

You first ask. at 4x;lt point in the lawsuit would the fee be. 

assessed and collected. The provision does not specify a particular 

time in which the fee may be collected. The Supreme Court 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 outlines the procedure for collecting cost. Rule 129 

provides in part: 

If any -L responsible for costs fails or 

refuses to pay the same within ten days after 

demsnd for payment, the clerk or justice of the 

peace may 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 proceedings shall 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 function for which the cost is taxed 

has been performed. Cf. Attorney General Opinion H-756 (1975) (clerk 

may not collect a feefor service of process before service is made). 

P. 1986 
Ronorsble 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 tendered to the 

county clerk to be held k1 trust. 

Section 4c(a) authorizes the county to collect the $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 assessment of 

cost will necessarily await the outcome of the litigation. Cf. 

hhitley v. King, 581 S.W.2d 541 (Tex. Civ. App. - Fort Worth 1979,T 

writ). 

In regard to your swond question, it is not clear under section 

4c(a) who is required to institute collection of 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 generally Sellers v. Harris County, 483 S.W.2d 242 (Tex. 1972). 

Thus, we believe that th; county clerk is required to institute the 

collection of the $50 fw under article 3930(10), V.T.C.S. Article 

3930 provides in part: 

County cler'w . . . are hereby authorized and 

required to collect the folloming fees for services 

rendered by 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.s set by this Act, reasonable fees 

shall be chargt:d. (Emphasis added). 

V.T.C.S. art. 3930(10). Accordingly, we conclude that the county 

clerk is responsible in each case for instituting the collection of 

the fixed fee of $50 aut'borized by section 4c(a). Poreover, Rule 129 

of the Texas Rules of Cdvil Procedure, as quoted above. also Implies 

that county or district clerks institute the collection of costs due. 

- Cf. Tax. R. Civ. P. 129. 

You next ask whether the county clerk may receive a reasonable 

fee pursuant to 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 related to 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. 1907 
Honorable 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 collect a 

reasonable fee for holding trust funds in probate matters. Section 

12(s) of the Probate Code p,rovides: 

The provisfcns of law regulating cost in 

ordinary civil cases shall apply to all matters in 

probate when 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 relating to t,he expense of handling district clerk and 

county clerk trust funds for the benefit of the litigants. Therefore, 

section 4c(a) is applicable to probate proceedings. For the reasons 

specified above, the county or district clerk is entitled only to a 

fixed fee of $50 for handling the trust fund in probste matters. 

SUMMARY 

Before a district or county clerk may 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 handling the trust fund must have 

been incurred, and there must 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 

authorized by section 4c(a). Section 4c(a) of 

article 2558a. V.T.C.S., requires that the county 

receive a 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 

Probate Code, the county clerk may collect the $50 

fee in probate l>roceedings. 

JIM HATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

p. 1988 
. 

Honorable Mike Dtiscoll - P,aSe 5 ml-434) 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

p. 1989