THE ATTORNEY GENERAL 

OF TEXAS 

June 25, 1987 

P 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-727 

Re: Duty of district clerk to file 

and docket improperly tendered 

documents 

Dear Mr. Driscoll: 

You have requested our opinion on a number of questions relating 

to the duty of the district clerk in connection with the filing and 

docketing of improperly tendered documents. A number of the questions 

you have asked are not accompanied by a brief giving the conclusion of 

the briefrr and the reason which support his views. See V.T.C.S. art. 

4399, §(c)(l). Consequently, they are not in compliance with article 

4399, section (c)(l), V.T.C.S., and we have not attempted to answer 

these questions. 

We address the following questions: 

1. If a document is tendered without a 

statutory fee prescribed by section 51.317 of the 

Government Code and/or affidavit of inability to 

pay costs in accordance with 145, Texas Rules of 

Civil Procedure, and/or other applicable rules and 

statutes, is the document 'filed' upon such 

tender? 

In Arndt V. Amdt, 709 S.W.2d 281 (Tex. App. - Houston [14th 

Dist.] 1986, no writ), the court stated: 

The longstanding rule in Texas is that documents are filed with the district clerk when 

tendered. &, Hanover Fire Insurance Co. V. 

Shrader, 33 S.W. 112 (Tex. 1895) ; Beal V, 

Alexander, 6 Tex. 532 (Tax. 1838); Plummer V, 

Roberson, 666 S.W.2d 656 (Tex. App. - Austin 1984, 

writ ref'd n.r.e.1. The purpose of the rule is to 

protect a diligent party-from being penalized by 

the error or omission of a court clerk. Standard 

Fire Ins. Co. V. La Coke, 585 S.W.Zd 678 (Tex. 

1979). 

p. 3381 
Honorable Mike Driscoll - Page 2 (JM-727) 

We have discovered no case involving the 

failure or refusal of a clerk to file a document 

because fees were not tendered. One case does 

qualify the rule in that respect, however. In 

Civil Service Commission of Lufkin V. Crager, the 

court noted a document was filed when tendered 'in 

the absence of some statute providing that fees be 

paid or some other thing done [sic] or performed 

before filing.' 384 S.W.2d 381, 383 (Tex. Civ. 

APP. - Beaumont 1964, writ ref'd n.r.e.). 

The statute governing fees for filing, art. 

3927, was amended June 3, 1985, effective 

September 1. 1985. On June 13, 1985, the 

legislature enacted 151.317 of the Government 

Code, replacing and repealing art. 3927, effective 

September 1, 1985. The saving provision of the 

Government Code, 1311.031. provides, however, that 

'the repeal of a statute by a code does not affect 

a* amendment . . . of the statute by the same 

legislature that enacted the code. The amendment . . . is preserved and given effect as part 

of the code provision that revised the statute so 

amended. . . .' 

Section 51.317 provides '[tlhe district clerk 

shall collect at the time the suit or action is 

filed the fees provided by Subsection (b) of the 

section for services performed by the clerk. . . . 

(b) The fees are . . . motion for new trial . . . 

$15.' Art. 3927, as amended, reads, in relevant 

portions, as follows: 'The clerks of the district 

courts shall receive the following fees for their 

services: (1) the fees shall be due and payable, 

and shall be paid at the time the suit or action 

is filed . . . motion for new trial . . . $15.' 

Art. 3927 has had that same wording since 1969. 

It is apparently the attempted change from the 

passive to active voice in the statute -- from 

'shall receive . . . the fees . . . [which] shall 

be paid' to 'shall collect . . . the fees' -- that 

has led to the practice in at least one district 

of refusing to filestamp documents until fees are 

tendered. 

We note, however, the time limit when fees are 

due is unchanged. They are due 'at the time 

the suit or action is filed,' a phrase not 

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Honorable Mike Driscoll - Page 3 (JM-727) 

particularly meaningful to a motion for new trial. 

While we firmly believe fees due to a clerk should 

be paid promptly, we nonetheless are reluctant to 

change a long-standing rule without a clearly 

worded statute, unhampered by a preserved amendment , mandating such a change. We, accordingly, 

decline to do so, even though the legislature by 

its enactment of §51.317 may have intended to 

assist court clerks in the sometimes onerous task 

of fee collection. (Emphasis in original). 

709 S.W.2d at 282. 

Accordingly, it is our opinion that documents are filed with the 

district clerk when they are tendered. 

6. Where the pleadings or instruments tendered 

for filing have sufficient fees, is the district 

clerk required to file such documents if no 

signature of the attorney/pro se is on the 

pleading or instrument as required under Tex. R. 

Civ. Proc. 45(d), 57, 78 and 83? 

Rule 45 of the Texas Rules of Civil Procedure, provides: 

Pleadings in the district and county courts shall 

(d) Be in writing, signed by the party or his 

attorney, and be filed with the clerk. 

Rule 57 of the Texas Rules of Civil Procedure states: 

Every pleading of a party represented by an 

attorney shall be signed by at least one attorney 

of record in his individual name, whose address 

shall be stated. A party who is not represented 

by an attorney shall sign his pleading and state 

his address. 

In Frank 'I. Corbett. 682 S.W.2d 587 (Tex. App. - Waco 1984, no 

writ), the court said: 

The answer should have been signed by appellant or 

his attorney, Rules 45 and 57, Vernon's Tex. Rules 

CiV. Proc., but this signing is only a formal 

requisite and the lack of it did not affect the 

efficacy of the answer as a contest of appellee's suit. -w-c. Turnbow Petroleum Corporation V. 

Fulton, 194 S.W.2d 256, 257 (1946). 

p. 3383 
Honorable Mike Driscoll - Page 4 (JM-727) 

682 S.W.2d at 588. The courts and this office have repeatedly 

characterized the powers and duties of the district clerk and county 

clerk as ministerial functions. See Benge V. Foster, 47 S.W.2d 862 

(Tex. Civ. App. - Amarillo 1932. wrx ref'd); Attorney General Opinion 

Nos. JM-694 (1987); m-166 (1984); cf. Attorney General Opinion JM-533 

(1986). It is our opinion that theclerk should file the pleading 

even though the signature of the attorney (or the party not 

represented by an attorney) is not on the pleading. 

8. Where a signature appears on the original 

or responsive pleading, and a copy of the said 

pleading without a signature is filed by the party 

to be sent with citation, is the district clerk 

required to conform the unsigned copy before 

sending citation for service by a constable or 

sheriff? 

Rule 101 of the Texas Rules of Civil Procedure provides: 

The party filing any pleading upon which citation 

is to be had shall furnish the clerk with a 

sufficient number of copies thereof for use in 

serving the parties to be served, and when the 

copies are so furnished the clerk shall make no 

charge therefor. 

Rule 101 provides that the party filing the pleading "shall 

furnish the clerk with a sufficient number of copies thereof for use 

in serving the parties." We believe that it is not the function of 

the clerk to add to or delete anything from the copies of petitions 

furnished by the party pursuant to Rule 101. We believe our answer to 

this query is dispositive of your questions numbered 10 and 11 in 

which you ask: 

10. Where documents are presented for filing 

with sufficient fees, is the district clerk 

required to file them if a signature, required to 

be verified or sworn to, is not so verified or 

sworn to? 

11. Where documents are presented for filing 

with proper fees, is the district clerk required 

to accept for filing the same where an exhibit, 

affidavit or other instrument filed under Rule 59 

of the Texas Rules of Civil Procedure is stated as 

being attached but is not in fact attached? 

An exception to our foregoing conclusion occurs when pleadings 

are misnumbered. See also Prop. Code 011.004 (county clerk must 

p. 3384 
Honorable Mike Driscoll - Page 5 (JM-727) 

record instruments that are properly acknowledged according to law). 

The Texas Rules of Civil Procedure state: 

Rule 23. 

It shall be the duty of the clerk to designate 

the suits by regular consecutive numbers, called 

file numbers, and he shall mark on each paper in 

every case the file number of the cause. 

Rule 24. 

When a petition is filed with the clerk he 

shall indorse thereon the file number, the day on 

which it was filed and the time of filing, and 

sign his name officially thereto. 

We believe these rules provide the answer to the following 

question: 

12. Where documents are presented for filing 

with proper filing fees, or where no fee is 

required, and where the case number is misnumbered. which misnumber may be the case number 

of another unrelated case, 

(a) What duty, if any, does the district 

clerk have in identifying the proper case 

number? 

In your last question you ask: 

14. Where no copies or an insufficient number 

of copies are furnished at the time a request for 

service of citation occurs, may the district clerk 

make the necessary copies, issue process, and send 

a fee bill at the time the service is performed to 

the requesting party? 

Rule 101 of the Texas Rules of Civil Procedure in setting forth the 

requisites of a citation states: 

It shall state the date of the filing of the 

petition, its file number and the style of the case, 

and the date of issuance of the citation, be signed 

and sealed by the clerk, and shall be accompanied by 

a copy of plaintiff's petition. . . . The party 

filing any pleading upon which citation is to be had 

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Honorable Mike Driscoll - Page 6 (JM-727) 

shall furnish the clerk with a sufficient number of 

copies thereof for use in serving the parties to be 

served, and when the copies are so furnished the 

clerk shall make no charge therefor. (Emphasis 

added). 

We are of the opinion that when no copies or insufficient numbers 

of copies of the petition are furnished by the party, the clerk may 

make the necessary copies and make a charge therefor. 

SUMMARY 

Documents are filed when they are tendered to 

the district clerk. Arndt v. Arndt, 709 S.W.2d 

281 (Tex. App. - Houston [14th Disc] 1986, no 

writ). The clerk should file the pleading even 

though the signature of the attorney (or the party 

not represented by an attorney) is not on the 

pleadings. See Frank v. Corbett, 682 S.W.2d 587 

(Tex. App. -Waco 1984, no writ). The district 

clerk should not add to nor delete anything from 

the copies of documents furnished by a party 

except that the clerk should endorse the correct 

file number thereon. Rules 101, 23 and 24 of the 

Texas Rules of Civil Procedure. When no copies or 

insufficient copies of the petition are furnished 

by a party. the clerk may make the copies and make 

a charge therefor. Tex. R. Civ. Proc. 101. 

Very truly your J A NJ& 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 3386