## @ffice of the Elttocnep Qbnecal &date of tkxae DAN MORALES ATTORNEY GENERAL August 2,1994
HonorableDavid Motley Kerr County Attorney Kerr County Courthouse 700 East Main Street Kerr-Ale,Texas 78028-5324 OpinionNo. DM-298
Re: Whether, under section 71.04(e) of the Family Code, a clerk of court may charge an applicantfor 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 applicantfor a protective order in cases of familyviolencet more than $36 if more than one person requires service or if service of notice of an applicationfor 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 availableto the applicant. We will answer your questions in the order you asked them.
The legislatureoriginallyenacted 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 commencesa proceeding under chapter 71 by

‘ktion 71.01@)(Z)

ofthe FamilyC&e de&m ‘familyviolence” as: (A) anactbyamcmkr~s~yorhouscholdagainaanothermemba ofthe family

or hens&old

thatis intmded

to remltin physical

harm,bodily injury,orassault,orthatisathnatthatrcasonablyplacesthewmbcrinfearof imminent physical hsrm,bodilyinjury,or assault, excluding the reasonable disctpline ofa child byaperson having that duty; or (B) abuse, asthat term isde&ted bySections

34.102(1)(C),Q, and (G) of this axle, by a member

of Bfamilyor householdtowarda child of the family or household. Footnote omitted.] Forpmposesofchapter

71, theterm“family”

“includes individuals

related by consangmm

‘tyoraffhlily,as &ennhud underArticle 59%h, Revised

Statutes, individuals whoare former

spouses ef eachether,

. . . mdwrdu& who amthebiological

parents of thesame child, without regard tomarriage,

anda foster

child andfester parent, whether ornotthese

individuals reside together.’

Fem. Codeg 71.01(b)(3). The term “household”

“means a unit composed

of personsliving togethex in the samedwelling, wh&er or net they am dated to each other.” Id. 5 71.01(b)(S). The term “member of a household”“includesa former member of a household,”i.e., “apersonwho previously liked in the household.” Id. 8 71.01(b)(4), (6). Seegenerolly Alexander, Tide4. Pmfectionofthe Fmdly, 21 TEx.TECH. L. REV. 1863.1864-66 (1990).

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5ing with the appropriate clerk of court an applicationfor 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 specificallyask, 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 thefiling of and service of notice of an applicationfor 0protective order, inchaiing fees m&r Section 71.07 of this coak, may not exceed $36 under ary ciramstunces. An applicantwho 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 inabilityto 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 pertinentpart 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 c4mmittedfamilyviolence. (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 CivilProcedure, except that serviceby publicationis not authorized.

. . . . (i) The fee for service of notice of an application for a protective order charged to the applicantunder this section may not bemorethan (1) $20 ifthe notice is deliveredin person; or (2) the cost of postage if the service is by registered or certiiied mail.

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Section 71.04(e) limits the total fees a clerk may charge an applicant for a protective order to $36. This is equivalentto the amount section 71.04(e) requires a clerk to charge for filingthe application($16) plus the fee section 71.07(i) authorizes a clerk to charge for service of notice of an applicationfor 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 individualhas committed family violence, and in such a situation, section 71.07(a) entitles each such individual to service of notice of an applicationfor protective order. Additionally, section 71.07(b) requires the clerk to have the notice served in the matmerthe applicant directs, which may be one of two methods rule 106(a) of the Texas Rules of CivilProcedure authorize-~ by deliveringa 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 numberof times service must be attempted. You ask us, therefore, to resolve the inconsistencyyou perceivebetween section 71.04(e) and section 71.07 ofthe FamilyCode.
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) (renumberedas subsection (e) in 1989, see Acts 1989,71st Leg., ch. 614,s 2, at 2014-15), it specifieda nominaltilingfee of S16but 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 eriginallyamted, section71.04(d)provided that“[t]hs feefor filing an application is 516 sadistok~totheclalrdthecouninwhichthcapplieatioaisfiled” SeeAc&l979,66thLeg,eh 98,s 11, at 185.

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to se-rvi~e.~See Acts 1979, 66th Leg., ch. 98, 8 11, at 185. Clerks therefore charged court costs and servicefees 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 assessingin connectionwith 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 applicationfor a protective order, includingfees under Section 71.07 of this code, may not exceed S36 under any circumstances.” On its face, this sentence clearly prohibits a clerk from assessinga total fee larger than S36under mry circmstances. The IegkWve history does not show any contrary intent. In hearingson Senate Bii 1149,the author, Senator Brooks, underlined the plain language of the amendment by stating that the purpose of the amendmentwas to “clarifythe previous legislativeintent 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 deliversthe 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 affidavitof inabilityto pay under the procedures, to the extent that they apply, provided by the Texas

%a1987the k8islatm amended section71.04(d)ofthe FamilyCodeto provide in perthem part as follows (italic5

indicatekngua8e the legisktureaddedin 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 expensesby 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 readessentiallyas atkn 71.07(i) does cmxntly. !kc disatssko spa page

2 @noting

Fam Ccdcp 71.07(i)).

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Rules of Civil Procedure.” Rule 145 of the Texas Rules of Civil Procedure provides in pertinentpart a8follows:

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 nuumerprescribedby this rule.

. . . . 2. Affidavit The affidavit shall contain complete informationas to the party’ s identity, nature and amount of govermnental entitlementincome,nature and amount of employmentincome, other income (interest, dividends,etc.), spouse’ sincome if availableto the party, property owned (other than homestead), cash or checking
accom dependents,debts, and monthlyexpenses. You contend that, becauserule 145definesa “party who is unableto afford costs”
as a person who is presently receiving a government entitlementbased on indigency, an applicant for protective order who is filing an a&lavit of inability to pay under section 71.04(e) of the FamilyCode need only state in the atlidavit his or her identity and the fact that he or she is receiving a governmententitlementbased on indigency. You believethat the remainder of the information specifiedin rule 145 is “whollyunnecemary.” We are uncertain whether, by the phrase “wholly unnecessary,” you mean not required or irrelevant. Because rule 145explicitlyrequires 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 specifiedin paragraph 2, other than a statement that the atlisnt is the recipient of a government entitlement baaed
on indigency,is relevantto determining whether such a person is unableto affordthe costs of an original action.6 Cj Cronenv. Smith, 812 S.W.2d 69,75 (‘Tex.

App.-Houston [lst Disk] 1991, no writ) (Mirabal, J., dissenting) (atEant receiving government entitlement based on indigencyis as matter of law “party who is unableto atford costs” within wntext of rule 145).

~~oudonotask,aadthcrdorewedotioxtsidcr,~hc~ ifaoy,offlliogaoaflldsvit tmderrulel45oftheTexasRdesofCivilF’nxdue inwllichtheaf6antt1sful1ytostatehisorbcr 6nawialwnditiona6rcquirrdbytbcnde.

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SUMMARY
Ptumant to section 71.04(e) of the Family Code, a clerk must not charge an applicantfor 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 respondentswho 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 claimsto be unable to pay the filingfee 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 informationregardii all items paragraph two of Texas Rule of Civil Prowdure 145 speciiies.

DAN MORALES Attorney Generalof Texas
JORGE VEGA J%st AssistantAttorney General
DREWDURHAM Deputy Attorney Generalfor CriminalJustice
JAVIER AGUILAR SpecialAssistant Attorney Genera)
RENEAHIcKs State Solicitor
SARAHJ. SHIRLEY Chair, OpinionCommittee Prepared by KymberlyK. Oltrogge l4dtantAttomeyGeneral

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