@ffice of the Elttocnep Qbnecal 

&date of tkxae 

DAN MORALES 

ATTORNEY GENERAL August 2,1994 

Honorable David Motley 

Kerr County Attorney 

Kerr County Courthouse 

700 East Main Street 

Kerr-Ale, Texas 78028-5324 

Opinion No. DM-298 

Re: Whether, under section 71.04(e) of the 

Family Code, a clerk of court may charge an 

applicant for a protective order more than $36 in 

certain cases and related question (RQ-559) 

Dear Mr. Motley: 

You have asked us whether, under section 71.04(e) of the Family Code, a clerk of 

court may charge an applicant for a protective order in cases of family violencet more than 

$36 if more than one person requires service or if service of notice of an application for a 

protective order is attempted but not completed. You also have asked us whether, under 

Texas Rule of Civil Procedure 145, an applicant for protective order who currently 

receives a government entitlement based on indigency must specify in an aflidavit other 

income and assets available to the applicant. We will answer your questions in the order 

you asked them. 

The legislature originally enacted title 4 of the Family Code, of which chapter 71 is 

a part, in 1979 in an effort to address the problem of family violence. See Alexander, 

supro note 1, at 1863. Chapter 71 pertains specifically to protective orders. Pursuant to 

section 71.02 of the Family Code, a person commences a proceeding under chapter 71 by 

‘ktion 71.01@)(Z) ofthe Family C&e de&m ‘family violence” as: 

(A) anactbyamcmkr~s~yorhouscholdagainaanothermemba 

of the family or hens&old that is intmded to remlt in physical harm, bodily 

injury,orassault,orthatisathnatthatrcasonablyplacesthewmbcrinfearof 

imminent physical hsrm, bodily injury, or assault, excluding the reasonable 

disctpline of a child by a person having that duty; or 

(B) abuse, as that term is de&ted by Sections 34.102(1)(C), Q, and (G) of 

this axle, by a member of B family or household toward a child of the family or 

household. Footnote omitted.] 

For pmposes of chapter 71, the term “family” “includes individuals related by consangmm ‘tyoraffhlily,as 

&ennhud under Article 59%h, Revised Statutes, individuals who are former spouses ef each ether, 

. . . mdwrdu& who am the biological parents of the same child, without regard to marriage, and a foster child 

and fester parent, whether or not these individuals reside together.’ Fem. Code g 71.01(b)(3). The term 

“household” “means a unit composed of persons living togethex in the same dwelling, wh&er or net they 

am dated to each other.” Id. 5 71.01(b)(S). The term “member of a household” “includes a former 

member of a household,” i.e., “a person who previously liked in the household.” Id. 8 71.01(b)(4), (6). 

Seegenerolly Alexander, Tide 4. Pmfection ofthe Fmdly, 21 TEx. TECH. L. REV. 1863.1864-66 (1990). 

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HonorableDavidMotley - Page 2 (DM-298) 

5ing with the appropriate clerk of court an application for a protective order. See Fam. 

Code 33 71.03 - .05 (providing for venue, persons qua&d to file applicatiog and 

contents of application). Section 71.04(e), about which you specifically ask, provides for 

fees related to the 5ing and service of an application for protective order. It states as 

follows: 

The fee for 5ing an application is $16 and is to be paid to the 

clerk of the court in which the application is Sled. Except as 

provided in Section 71.07 of this code, the applicant may not be 

assessed any other fees, costs, charges, or expenses by the clerk of 

the wutt or any other public 05cial in connection with the 

application. The rotnl fees rekzting to the filing of and service of 

notice of an application for 0 protective order, inchaiing fees m&r 

Section 71.07 of this coak, may not exceed $36 under ary 

ciramstunces. An applicant who is unable to pay the filing fee and 

other costs as provided in Section 71.07 of this code may 5e with 

the court an a5davit of inability to pay under the procedures, to the 

extent that they apply, provided by the Texas Rules of Civil 

Procedure. mphasis added.] 

Section 71.07, to which section 71.04(e) refers, provides in pertinent part as follows: 

(a) Each individual who is alleged to have committed family 

violence is entitled to service of notice of an application for a 

protective order as provided by this section on the 5ii of an 

application. 

. . . . 

(f) A party 5ing an application for a protective order shall 

thrnish the clerk with a su5cient number of copies of the application 

for service of those individuals alleged in the application to have 

c4mmitted family violence. 

(g) A notice of an application for a protective order shall be 

served in the same manner as a citation under the Texas Rules of 

Civil Procedure, except that service by publication is not authorized. 

. . . . 

(i) The fee for service of notice of an application for a 

protective order charged to the applicant under this section may not 

bemorethan 

(1) $20 ifthe notice is delivered in person; or 

(2) the cost of postage if the service is by registered or 

certiiied mail. 

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Honorable David Motley - Page 3 (DM-298) 

Section 71.04(e) limits the total fees a clerk may charge an applicant for a 

protective order to $36. This is equivalent to the amount section 71.04(e) requires a clerk 

to charge for filing the application ($16) plus the fee section 71.07(i) authorizes a clerk to 

charge for service of notice of an application for protective order ($20). However, as you 

suggest, in drafting section 71.07 the legislature contemplated that, upon occasion, 

multiple services or multiple attempted services must be made. For example, an applicant 

may allege that more than one individual has committed family violence, and in such a 

situation, section 71.07(a) entitles each such individual to service of notice of an 

application for protective order. Additionally, section 71.07(b) requires the clerk to have 

the notice served in the matmer the applicant directs, which may be one of two methods 

rule 106(a) of the Texas Rules of Civil Procedure authorize-~ by delivering a copy of the 

application to the respondent in person, or by mailing a copy of the application to the 

respondent by registered or certitled mail, return receipt requested. If the- applicant 

requests that the clerk have the notice served upon the respondent in person, the server 

may need to make multiple attempts to serve the notiix2 In either situation, section 

71.04(e) appears to mandate that the clerk charge only S20 for service, regardless of the 

number of respondents served or number of times service must be attempted. You ask us, 

therefore, to resolve the inconsistency you perceive between section 71.04(e) and section 

71.07 ofthe Family Code. 

The legislature designed title 4 of the Family Code in part to provide protective 

orders to persons who are poor. Alexander, supra note 1, at 1869. In 1979, when the 

legislature originally enacted section 71.04(d) (renumbered as subsection (e) in 1989, see 

Acts 1989,71st Leg., ch. 614,s 2, at 2014-15), it specified a nominal tiling fee of S16 but 

did not limit the amount a clerk could assess for service of notice of the application for 

protective order,’ although section 71.07(a) mandated that each respondent was entitled 

3As eriginally amted, section 71.04(d) provided that “[t]hs fee for filing an application is 516 

sadistok~totheclalrdthecouninwhichthcapplieatioaisfiled” SeeAc&l979,66thLeg,eh 

98,s 11, at 185. 

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Honorable David Motley - Page 4 (DM-298) 

to se-rvi~e.~ See Acts 1979, 66th Leg., ch. 98, 8 11, at 185. Clerks therefore charged 

court costs and service fees in addition to the $16 fXng fee, raising the total fee to a level 

so high that many eligible persons could not afford to apply for protective orders. 

Alexander, supra note 1, at 1869. In 1987 the legislature amended section 71.04(d) to 

prohibit a clerk from assessing in connection with the application any fees, costs, charges, 

or expenses, other than the fee for service of the notice that section 71.07 authorizess 

See Acts 1987, 70th Leg., ch. 1090, Q 1, at 3700; see also Alexander, supru note 1, at 

1869. 

In 1991, by the enactment of Senate Bii 1149, the legislature added the present 

third sentence to section 71.04(e): “The total fees relating to the filing of and service of 

notice of an application for a protective order, including fees under Section 71.07 of this 

code, may not exceed S36 under any circumstances.” On its face, this sentence clearly 

prohibits a clerk from assessing a total fee larger than S36 under mry circmstances. The 

IegkWve history does not show any contrary intent. In hearings on Senate Bii 1149, the 

author, Senator Brooks, underlined the plain language of the amendment by stating that 

the purpose of the amendment was to “clarify the previous legislative intent that the iihng 

fee [for an application] for protective order shah not exceed S16 and rhe fee for service 

skdnot exceed820 under any circumstances.” Hearings on S.B. 1149 Before the Senate 

Comm. on Health Br Human Services, 72d Leg. (Apr. 16, 1991) (statement of Senator 

Brooka, author) (tape available from Senate Staff Services) (emphasis added). Consequently, we wnstrue section 71.04(e) to absolutely prohibit a clerk f?om charghrg an 

applicant for protective order under chapter 71 of the Family Code more than $36, 

regardless of the number of respondents who must be served or the number of times 

service must be attempted before the server actually delivers the service. 

Your second question wncerns affidavits of inabiity to pay costs. As quoted 

above, section 71.04(e) permits “[a]n applicant who is unable to pay the Sling fee and 

other costs as provided in Section 71.07 of this wde [to] tile with the wtut an affidavit of 

inability to pay under the procedures, to the extent that they apply, provided by the Texas 

%a 1987 the k8islatm amended section 71.04(d) ofthe Family Code to provide in perthem part 

as follows (italic5 indicate kngua8e the legiskture added in 1987): 

Thef&forfilinganapplicationkS16andklokpeidtotbcdcrLodtbc 

court in whieb tbe applieaticm is filed. Except ap proviokd in Section 71.07 of 

this co& the appricrmt may not be awesed any other fees, costr, chqes, or 

expenses by the clerk of the court or my other public oflcial in connection with 

the opplicotion. 

~escc11987.7oth~,cb.1090,~1,at3700. Bythesmebill,thekgkk~addedtosedion71.O7 

of tk Family Code !§ion (c), which read essentially as atkn 71.07(i) does cmxntly. !kc disatssko spa page 2 @noting Fam Ccdc p 71.07(i)). 

p. 1595 
Honorable David Motley - Page 5 (DM-298) 

Rules of Civil Procedure.” Rule 145 of the Texas Rules of Civil Procedure provides in 

pertinent part a8 follows: 

In lieu of Sling security for costs of an original action. a party 

who is unable to afford said costs shall file an atlidavit as herein 

described. A “party who is unable to afford costs” is defined as a 

person who is presently receiving a govermnental entitlement baaed 

on indigency or any other person who has no ability to pay costs. 

Said atlidavit, and the party’s action, shall be processed by the clerk 

in the nuumer prescribed by this rule. 

. . . . 

2. Affidavit The affidavit shall contain complete informationas to the party’s identity, nature and amount of govermnental 

entitlement income, nature and amount of employment income, other 

income (interest, dividends, etc.), spouse’s income if available to the 

party, property owned (other than homestead), cash or checking 

accom dependents, debts, and monthly expenses. 

You contend that, because rule 145 defines a “party who is unable to afford costs” 

as a person who is presently receiving a government entitlement based on indigency, an 

applicant for protective order who is filing an a&lavit of inability to pay under section 

71.04(e) of the Family Code need only state in the atlidavit his or her identity and the fact 

that he or she is receiving a government entitlement based on indigency. You believe that 

the remainder of the information specified in rule 145 is “wholly unnecemary.” We are 

uncertain whether, by the phrase “wholly unnecessary,” you mean not required or 

irrelevant. Because rule 145 explicitly requires an aftiant to provide complete information 

mgarding each of the items listed in paragraph 2 of the rule (thus making such information 

necessary), we need not determine here whether the information specified in paragraph 2, 

other than a statement that the atlisnt is the recipient of a government entitlement baaed 

on indigency, is relevant to determining whether such a person is unable to afford the costs 

of an original action.6 Cj Cronen v. Smith, 812 S.W.2d 69,75 (‘Tex. App.-Houston [lst 

Disk] 1991, no writ) (Mirabal, J., dissenting) (atEant receiving government entitlement 

based on indigency is as matter of law “party who is unable to atford costs” within wntext 

of rule 145). 

~~oudonotask,aadthcrdorewedotioxtsidcr,~hc~ ifaoy,offlliogaoaflldsvit 

tmderrulel45oftheTexasRdesofCivilF’nxdue inwllichtheaf6antt1sful1ytostatehisorbcr 

6nawialwnditiona6rcquirrdbytbcnde. 

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HonorableDavidMotley - Page 6 (~~-298) 

SUMMARY 

Ptumant to section 71.04(e) of the Family Code, a clerk must 

not charge an applicant for a protective order under chapter 71 of the 

Family Code more- than S36 total for tiling the application and 

serving notice of the application, regardless of the number of 

respondents who must be served or the number of times service must 

be attempted before the server actually delivers the service. 

Although an applicant for protective order is presently receiving a 

governmental entitJement based on indigency, the applicant must, if 

he or she claims to be unable to pay the filing fee and other costs as 

provided in section 71.07 of the Family Code, Sle with the clerk an 

a5davit of htabiity to pay in which the applicant provides 

information regardii all items paragraph two of Texas Rule of Civil 

Prowdure 145 speciiies. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

J%st Assistant Attorney General 

DREWDURHAM 

Deputy Attorney General for Criminal Justice 

JAVIER AGUILAR 

Special Assistant Attorney Genera) 

RENEAHIcKs 

State Solicitor 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

l4dtantAttomeyGeneral 

p. 1597