- . 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austln, TX. 78711-2548 

512,475.2501 

Telex 9101874-1367 

Telecooier 512I475.02’36 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

2141742-0944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 799052793 

91515333464 

,001 Texas. Suite 700 

Houston, TX. 77002-3111 

713/223-5886 

1306 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

8061747-5238 

4303 N. Tenth, Suite B 

McAHen, TX. 78501-1685 

5121882-4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 78205-2797 

512/2254191 

An Equal Opportunityl 

Attirmative Action Employer 

The Attorney General of Texas 

August 23. 1985 

Overrules in part JM-168 

Ronorabla Henry WadI, 

Criminal District A:torney 

Condemnation Sectio!l 

Services Building 

Dallas, Texas 75202 

Dear Mr. Wade: 

Opinion Ho. JM-346 

Re: Fees to be charged 

filing certain instruments in 

probate court 

You request the opinion of this office concerning fees, if any, 

to be charged by county clerks for the filing of pleadings and legal 

instruments by defcrtdants in adverse actions in the probate courts, 

such as the defenduut's original answer, an*wer* to interrogatories, 

or responses to requests for admissions. You also seek clarification 

of Attorney General. Opinion JM-168 (1984) in regard to the applicability of subsectixl (b)(i), paragraph B(l), section 1, of article 

3930(b), V.T.C.S. We conclude that the state statutes do not 

authorize any fees t.o be charged by county clerks in adverse actions 

in the probate ccurt, except the fee to be paid by the party 

initiating the adverse action as authorized by article 3930(b), 

section 1, paragra~n B(l)(c). 

Since 1967, a::ticle 3930(b), V.T.C.S., has prescribed the fees 

which clerks of the county courts are authorized to charge for courtrelated services pc,rformed by the clerks. In section 1, paragraph A 

of that act provides for fees for ordinary civil cases on the county 

civil court dockets. Paragraph C relates to services of the clerk in 

issuing and recor<,lng the return of documents where no cause is 

pending. Paragraph D has to do with issuing certificates, certified 

copies, and other documents on which there is no return to be 

recorded. Paragraph E applies to letters testamentary and similar 

instruments, and Paragraph F applies to the filing and keeping of 

wills for safekeepjng. Section 1, paragraph B, which prescribes fees 

for probate court do#zkets, provides, in pertinent part, that 

(1) I've each cause or action, or docket in 

Probate Courts: . . . . 

(a) For each original cause or action in a 

Probate ?&, a fee to be due and payable and to 

be paid 1)~ the party or parties starting or 

initiating said cause or estate action. . . . 

p. 1574 
Honorable Henry Wade - Page Z (JM-346) 

(I) For probat:ing will vith independent 

executor; for admtuistration with will attached, 

for administration of an estate, for guardianship 

or receivership of an estate, for muniment of 

title, a fee from the starting or initiating such 

cause of action uztil either an order approving 

the inventory and $praisement is filed or until 

the inheritance oF estate tax receipt is filed, 

whichever first oc&s: a fee of...........$35.00 -- 

. . . . 

(b) For each Jrobate docket remaining open 

after the filing of the order approving the 

inventory and appraisement or after the filing of 

the inheritance OI? estate tax receipt, whichever 

occurs first, &a following fees shall be 

paid. . . . 

(I) For filing, or filing and recording, of 

each instrument of writing, legal document, paper 

or record in an open Probate Docket after the 

filing of the order approving the inventory and 

appraisement or s:Eter the filing of the tax 

receipt, whichever :Ls applicable, a fee: 

(1) For the first page of.............. $3.00 

(2) For each p,%ge or part of a page thereafter 

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2.00 

(ii) For approving and recording each bond 

relating only to an open Probate Docket after the 

filing of the order approving the inventory and 

appraisement or after the filing of the tax receipt, whichever is applicable, a fee of... $3.00 

(iii) For administering each oath relating to 

an open Probate P,ccket after the filing of the 

order approving the inventory and appraisement or 

after the filing cf the tax receipt, whichever is 

applicable, a fee ,~f....................... $2.00 

(c) For each ad-verse action or contest, other 

than the filing of II claim against an estate, in a 

cause or docket ilr a probate court, a fee to= 

due and payable ant3 to be paid by the party or 

Parties starting o:c initiating such adverse action 

or contest, but e&uding other items listed in 

p. 1575 
Ronorable Henry Wade - Page :I (JM-346) 

Paragraphs A, B, C, and D of this Section 1, 

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $25.00 

(d) For filing and entering each claim against 

an estate in the cLsim docket, a fee to be paid by 

claimant at the -time of filing such claim, 

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2.00 

(Emphasis added). 

Until amended in 1983, paragraph B(l)(a) provided for a fee for 

each original cause or action for a period of one year from the 

starting or initiating of th'e cause of action instead of a fee from 

the starting or initiating of the cause of action until either an 

order approving the inventory and appraisement is filed or until the 

inheritance or estate tan receipt is filed. Likewise, prior to 1983, 

paragraph B(l)(b) provided fees for each probate docket remaining open 

after its first anniversary date instead of a fee for each docket 

remaining open after the fiL:Lng of the order approving the inventory 

and appraisement or after the filing of the inheritance or estate tax 

receipt. 

The usual proceedings within the jurisdiction of the probate 

courts may remain pending Eior lengthy periods of time. It is our 

opinion that the legislatur: intended the reference to inventory and 

appraisement and to inheritance or estate tax receipt as a determination of the period of time during which services by the county clerk 

are compensated by the lump sum fee for the starting of the original 

cause or estate action. The amendment in 1983 ties that determination 

to key points in the probate process in place of the arbitrary oneyear period. See Bill Anal]%16 to S. B. No. 663, 68th Leg., prepared 

for Rouse CommEee on the .Judiciary, filed in Bill File to S. B. No. 

663, Legislative Reference Iibrary. We conclude that fees provided by 

paragraph B(l)(b) apply to services which would be covered by the 

provisions of paragraph B(l)(a) were it not that the services occur 

after the filing of the ordr,r approving the inventory and appraisement 

or after the filing of the tar receipt. On the other hand, fees 

provided by paragraph B(l):(:) apply to adverse actions or contests 

other than claims against an estate , which are not themselves probate 

matters, but are filed in probate court because they are ancillary or 

incident to a cause in the ,probate court. Fees provided by paragraph 

B(l)(d) apply to claims against an estate. 

Rence, we conclude ths.t it is the intention of the legislature 

that it is paragraph B(l)(c), not paragraph B(l)(b), that applies to 

the adverse actions about whf.ch you inquire. 

It has long been estab3.ished that unless a fee is provided by law 

for an official service required to be performed and the amount is 

p. 1576 
Honorable Renry Wade - Page 4 (JM-346) 

fixed by law, a fee may not be charged. Furthermore, fee statutes are 

strictly construed, and fees are not pelmitted by implication. 

The courts of 1311s state have adopted the rule 

construing strictly those statutes prescribing 

,fees for public officers and against permitting 

such fees by implication. No officer is permitted 

to collect fees ot commissions unless the same are 

provided for and the amount thereof declared by 

law. This is true, notwithstanding such officer 

may be required by law to perform specific 

services for which no compensation is provided. 

HcCalla v. City of Rockdale,, 246 S.W. 654, 655 (Tex. 1922). See also 

Moore v. Sheouard. Sheppard, 192 S.W.:!d 559, 561 (Tex. 1946); Nueces County nty V. V. 

Currington Currington, 162 S.W.2d 687, 1688 (Tex. 1942); State v. Moore, t, 57 Tex. 

307, 321 (1882); Attorney General Opinions MW-104 (1979); (1979); R-796 

(1976); S-87 bo,(1953); \lvo=,i V-957 Y-Y=, i'v+v,. (1949). 

Paragraph B(l)(c) expressly requires a $25.00 fee to be paid by 

the party initiating an advlarse action' or contest in a cause in a 

probate court. We think that neither paragraph B(l)(c) nor any other 

statutory provision of whi& we are aware provides for a fee other 

than the initial $25.00 fee in such an adverse action. In Rodeheaver 

v. Alridge, 601 S.W.2d 51. 54 (Tex. Civ. App. - Houston [lst Dist.] 

1980, writ ref'd n.r.e.), the court stated that 

A reading of .kcticle 3930(b) shows that the 

$25.00 fee which the county clerk is to collect 

for each filed aiverse action or contest covers 

not only the clerk's services for the initial 

filing of the act!.on but also many other services 

which will accrue during the processing of the 

suit. Thus, the statutory fee is, in effect, an 

advance payment for the cost of services which 

have not been rendered at the time the fee is 

collected. 

In Attorney General Op,lnion JM-168, we stated that supplemental 

instruments filed in conneci:ion with an ancillary probate action are 

subject to the fees prescribed by paragraph B(l)(b)(i) of article 

3930(b) if the instruments are filed after the inventory and appraisement have been approved or after the inheritance or estate tax receipt 

has been filed. We now con'zlude that, other than the initial $25.00 

fee, no fees are authorize3 for the filing of pleadings and legal 

instruments in adverse and ancillary actions in the probate courts. 

To the extent that Attorney G'eneral Opinion JM-168 conflicts with this 

conclusion, it is overruled. 

p. 1577 
I . 

, . 

Ronorable Henry Wade - Page 5 (JR-3-346) 

SUMMARY 

County clerks s,re authorized to charge an 

initial fee of $25.00 to be paid by the party 

initiating an adverse action or contest in a 

probate court. An additional fee is not 

authorized for the filing of pleadings and legal 

instruments by the defendants in adverse actions 

in a probate court. 

($z;& 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICRARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney Gsrueral 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1578