## @ffice~of tfy SZlttornrp 63enrraI &date of Pr;exas
DAN MORALES ATTORNEY GENERAL August 3,199s

Mr. Barry Williion Opinion No. DM-360 Chair Railroad Commission of Texas Re: Whether the Texas Railroad Commission P.O. Box 12967 is required to pay certain fees requested by Austin, Texas 7871l-2967 county clerks (RQ-701)

Dear Mr. Wtiamson:

You ask whether the Texas Railroad Commission (the “commission”) is required to pay certain fee-swhen fXng notices required by section 89.043(e) of the Natural Resources Code. Section 89.043 provides for the plugging of wells by the commission. Subsection (e) requires the commission to

file for record a copy ofthe notice inthe office ofthe county clerk of the county in which the well is located The copy of the notice &xl in the office of the county clerk must contain [certain information about] the land on which the well is located. ?%eclerk shall rewed thenoticein,therealpropertyrecorakofthecounty. The cod sion shall fiunish acopy ofthe notice to a holder of a lien on the well
or anonoperator on that person’s reque5t.l
Nat. Res. Code 3 89.043(e) (emphasis added) (footnote added). You state that county clerks have rejected filings under this provision for lack of fees. You suggest that county clerks have asked the commission to submit to fees provided by sections 118.011(a)(2) and (b)(2), 118.013,118.0216, and 291.007(d)2 ofthem Government Code.

Local Government Code sections 118.01I(a)(2) and 118.013(a) provide for a real propaty rrcords filing fee “for filing and recording, including indexing, in the real property records inthe office ofthe county clerk a docutnent that is authorized or required to be 6led in those records.” Local Gov’t Code 5 118.013(a). Local Govemment Code sections 118.011(b)(2) and 118.0216 provide for a records management and preservation

‘Tk8eventy-fuultllLegislatursameadatrubsclMn(e)byaddingtlu~~ dfdvo Angut 28.1995~ “The amIdssionshaulwtkclwgalrfceforthefiljngolorrdingofthe nodoe.- See H.B. 9039, Act of May 21. 1995. 74th Lq.. RS. ch 928, 0 1. mailoblr in Wtsdaw, TX-L&S 928 (1995) (copies available atHOUSC Dommmt Diilon OtXa) (to becd&d asNat Res. code p89.043(e)). This opinion does not consida the &U ofthatamendment

=AsofSqxemtu 1.1995, section 291.007 will be rmunbmd as seUion 291.008. See S.B. 959. AU ofApril25.1995.74th Lq., RS.. oh 76.0 17.01, ovoilable in Westlaw, Tx-Lqis 76 (1995) (copies availableatsenate Bid1 Diiiution office).Mr. Bany Williamson - Page 2

fee “for the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the oflice of the clerk.” Local Gov’t Code $ 118.0216. Local Government Code section 291.007, which was added in 1993, see Act of May 22, 1993, 73d Leg., RS., ch. 818, 32, 1993 Tex. Sess. Law Serv. 3261, 3262, authorizes a commissioners court to impose a security fee to be charged atthe time offiling civil cases and other documents,

Section 154.004(b) of the Local Government Code provides as follows: “If a county officer is paid an annual salary. the state or any county may not pay a fee or commission to the officer for the performance of a service by the officer.” You suggest that section 154.004(b) precludes the State from paying the foregoing fqs.f For the following reasons, we disagree.

Fii section 154.004(b) is inapplicable with respect to the real property records filmg fee and the records management and preservation fee set forth under section 118.011 of the Local Government Code. Section 118.011 of the Local Government Code, the county clerk fee schedule, was recodified in 1987. See Act of April 30, 1987. 70th Leg., RS., ch. 149, 8 1, 1987 Tar Gen. Laws 707. 862. It now provides that “[a] county clerk shulZ collect the following fees for services rendered to mry person.” (Emphasis added.) ‘The statutory predecessor to section 118.011, now-repealed article 3930, V.T.C.S., provided that “[c]ounty &rks and county recorders are hereby authorized and required to collect the following fees for services rendered by them to all persons, 5nns, corporations, legal entities, govemmen~l agenciesan&orgovemmenlol represenfatives.”(Emphasis added.) The revisor’s note following section 118.011 states
asfollows:
The revised law substitutes “any person” for the list of legal

entities inV.AC.S. Article 3930 because the Code Construction Act (Chapter 311, Government Code) detines “person” to include any legal entity.
In recodiig article 3930 in the Local Government Code, the legislature did not intend to nuke any substantive change in the law. See Act of April 30,1987,7Oth Leg., RS.. ch. 149, 551, 1987 Tex. Gen. Laws 707, 1308. Thus, section 118.011, considered alone, clearly requires county clerks to collect fees from the State.

Gn their face, section 118.011, which requires county clerks to collect certain fees from the State, and section 154.004(b), which precludes the State from paying fees to a cowlty clerk who receives a salary, conflict. We note, however, that in 1967. the Siieth Legislature passed House Bii 80, amendii the statutory predecessor to section 118.011,

‘You rely upon Attorney Gelled opinion IM-779 (1987) widcb wnsid~ whubor a dlsnicl raonryis~topg,a~(othcountyc~forrsMdingrbdradsofjudgmentunda~on 51.318 of the GovemmemtCd. Section 51.318 of the t3amumtcodc,howeva,pertainstofces ebargcdbydistria clerks.Mr. Barry Williamson - Page 3

now-repeahsd article 3930, V.T.C.S., and clarifying that that provision repealed certain other statutory provisions relating to certain fees for county clerks. See Act of May25,1967, 60th Leg., RS., ch. 681, 1967 Tex. Gen. Laws 1790. One of the provisions a&ted by House Bill 80 was now-repealed article 3912e, V.T.C.S., the statutory predecessor to section 154.004(b). See id. 52, at 1790-91.

House Bill 80 provided in pertinent part that “‘thefees provided for County Clerks in all other laws, or parts of laws, in contlict with the provisions of this Act are hereby repealed as to County Clerks only, including but not limited to

. . Article 3912e, Vernon’s Texas Cii Statutes.” Id. As this office recognized shortly after House Bill 80
was enacted, “Prior to the enactment ofHouse Bill 80, no fees were required to be paid by the State of Texas. [V.T.C.S. art. 3912e. $5 1,3]. House Bii 80 now rqu-hes fees to be paid by the State.” Attorney General Opinion M-134 (1967) at 2; see also Attorney General Opinion M-168 (1967) (noting that House Bii 80 did not repeal sections 1and 3 of article 3912e insofx as it applied to fees under Probate Code or Code of Crhninal Procedure). Thus, the State mustpay all fees set forth in section 118.011, including the real property records filing fae and the records management and preservation fee.

The section 291.007 security fee is not mentioned in the section 118.011 fee schedule and must be analyzed separately. As noted above, subsection (a) of Local Government Code section 291.007 authorizes a conunissioners court to impose a security fee to be charged at the time of filing in civil cases. Subsection (d) provides that if the commissioners court of a county sets a security fee in civil cases, the county and district clerks shah collect a fee of one dollar for filing any document not subject to the security fee. The fees and costs collected under these provisions must be deposited in the courthouse security fund by the county treasurer. Local Gov’t Code 5291.007(e). “The fund may be used only to finance the following items when used for the purpose of providing security services for buildings housing a district or county wurt,” includmg, for example, metal detectors, surveillance equipment, and security personnel. Code Ctim. Proc. art. 102.017(c), a&edby Act ofMay 22,1993,73d Leg., RS., ch. 818,s I,1993 Tar Sess. ,LawServ. 3261, 3262.4 See generally Attorney General Opinion DM-283 (1994) (wnstruing Local Gov’t Code 3291.007).

We believe that the State is not precluded by section 154.004(b) from paying the section 291.007 security fee for the following reasons. Subsection (a) provides that the secUityfee”shaubetaxedasotherwsts. The county is not liable for the costs.” Subsection (b) provides that in a civil case brought by the State or political subdivifion in which the State or political subdivision is the prevailing party, the security fee under subsection (a) “shah be taxed and collected as a cost of wurt against each nonprevailing party.” Section 291.007 exempts the local county, but not the State or other political

‘Aticle 102.017 will be ~umbcrcd as artide 102.018 as of Sqtembu 1, 1995. =e S.B. 959, Au ef April 25, 1995.74th Lq.. ch 76, 8 17.01. and.amdcd to apply to municipal courts cffcdive Angust 28,1995,9cc S.B. 349, Ad ofMay 27,1995,74th Le& RS.. cb. 164.0 2, avaiiablr InWe&w, TX-Le.& database(copia wailable atSenateBiUDiswiition Of6ce).Mr. Barry Williamson - Page 4

subdivisions, from paying the subsection (d) security fee. This omission contrasts with the special provision made for fees paid by the State and politkal subdivisions in subsection (b). and leads us to conclude that the legislature intended for the State and political subdivisions, other than the local wunty, to pay the subsection (d) fee.5 To the extent that section 291.007(d) and section 154.004@) conflict, section 291.007(d), which is both

more recent and more specific than section 154.004(b), must prevail. See Gov’t Code $5311.025(a), .026@). Therefore, section 154.004@) of the Local Government Code does not preclude the commission from paying the subsection (d) fee.6

SUMMARY

Local Government Code section 154.004(b) does not preclude the Texas Railroad Commission from paying a real property records filiig fee pursuant to Local Government Code sections 118.01l(a)(2) and 118.013(a), a records management andpreservation fee pursuant to Local Government Code sections 118.011(b)(2) and 118.0216, or
a wurthouse security fee under Local Gove-rnment Code section 291.007(d) when filing notices rquired by section 89.043(e) of the Natural Resources Code.

DAN MORALES Attorney General ofTexas

he mightsu~esf thatnorcfmmeeismadetotheState andpoliticalsubdivtsions

withRspcd tothesubs&ion(d)feebuzausc thelegislahuc8ssumcd

thattheywould

beprecluded

frompayingthefee underseuion lU.oo4@). Thisalgumentis notconvincing, howcVu, bxausc section154.004(b) only pnzcludcs theStateandcount@fromPaying fees.Itdoesnotpm&detheIKJSI ofothertypesofpolitical mtdivision5

frompayingfees.Mr. Barry Williamson - Page 5

JORGE VEGA Fist Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by Mary R. Crouter Assistant Attorney General