### THE ATTORNEY GENERAL OF TEXAS June 25, 1987

P HonorableMike Driscoll

Harris CountyAttorney 1001Preston, 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 questionsrelating to the duty of the district clerk in connectionwith the filing and docketingof improperlytendereddocuments. A number of the questions you have asked are not accompaniedby a brief giving the conclusionof thebriefrr and the reasonwhich supporthis views. SeeV.T.C.S. art. 4399, §(c)(l). Consequently, they are not in compliancewith article 4399, section (c)(l),V.T.C.S., and we have not attempted to answer thesequestions. We address the followingquestions:

1. If a document is tendered without a statutory fee prescribedby section 51.317 of the Government Code and/or affidavit of inability to pay costs in accordancewith 145, Texas Rules of Civil Procedure,and/or other applicablerules and statutes, is the document 'filed' upon such tender? In Arndt V. Amdt, 709 S.W.2d 281 (Tex. App. - Houston [14th Dist.] 1986,nowrit), 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'dn.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).

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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 courtnoted a documentwas filedwhen tendered 'in the absence of some statuteproviding that feesbe paid or some other thing done [sic] or performed before filing.' 384 S.W.2d 381, 383 (Tex. Civ. APP. - Beaumont 1964,writ ref'dn.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, replacingand repealing art. 3927, effective September 1, 1985. The saving provision of the GovernmentCode, 1311.031.provides,however, that 'therepeal of a statuteby a codedoes 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 sectionfor servicesperformedby the clerk. . . . (b) The fees are . . .motion for new trial
. . . $15.' Art. 3927, as amended, reads, in relevant portions,as follows: 'Theclerks of thedistrict 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. 3927has had that samewording since 1969. It is apparently the attempted change from the passive to active voice in the statute -- from 'shallreceive
. . . the fees . . . [which] shall be paid' to 'shallcollect . . . the fees' -- that has led to the practice in at least one district of refusing to filestampdocuments until fees are tendered. We note, however, the time limitwhen fees are due is unchanged. They are due 'at the time the suit or action is filed,' a phrase not

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particularlymeaningful to amotion fornew trial. While we firmlybelieve feesdue 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 legislatureby its enactment of §51.317 may have intended to assist court clerks in the sometimes onerous task of fee collection. (Emphasisin original). 709 S.W.2d at 282. Accordingly, it is our opinion that documents are filedwith the districtclerkwhen they are tendered.

6. Where thepleadings or instrumentstendered 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 theTexas Rules of Civil Procedure,provides: Pleadings in the districtand county courts shall (d) Be in writing, signedby the party or his attorney,andbe filedwith the clerk. Rule 57 of theTexasRules 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 shouldhave been signedby appellantor his attorney,Rules 45 and 57,Vernon'sTex.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).

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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 GeneralOpinion Nos. JM-694 (1987);m-166 (1984);cf.AttorneyGeneral 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 representedby an attorney) isnot on thepleading.

8. Where a signature appears on the original or responsive pleading, and a copy of the said pleadingwithout a signatureis filedby theparty 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 Procedureprovides:

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 sufficientnumber 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 furnishedby theparty pursuant toRule 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 theTexas Rules of Civil Procedure is statedas being attachedbut 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

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record instruments that are properly acknowledged according to law). The TexasRules 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 shallmark on each paper in every case the filenumber 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 signhis name officiallythereto. 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 anotherunrelated case, (a) What duty, if any, does the district clerk have in identifying the proper case number? Inyour last questionyou ask:

14. Where no copies or an insufficientnumber of copies are furnished at the time a request for serviceof citationoccurs,may thedistrict clerk make the necessary copies, issueprocess,and send a feebill at the time the service isperformedto the requestingparty? Rule 101 of the Texas Rules of Civil Procedure in setting forth the requisitesof a citation states:

It shall state the date of the filing of the petition, its filenumber and the style of the case, and the date of issuance of the citation, be signed and sealedby the clerk, and shallbe accompaniedby a copy of plaintiff's petition.
. . . The party filinganypleadingupon which citation is tobe had

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shall furnish the clerk with a sufficientnumber 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 thatwhen no copies or insufficientnumbers of copies of the petition are furnishedby the party, the clerk may make thenecessary copies andmake 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 signatureof the attorney (or theparty 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 nordelete 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 copiesor insufficient copies of the petition are furnished by a party. the clerkmay make the copiesandmake a charge therefor. Tex. R. Civ. Proc. 101. Very trulyyour 

# J NJ&

A JIM MATTOX AttorneyGeneral of Texas MARY KELLER ExecutiveAssistantAttorney General JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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