@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 7871 l-2967 county clerks (RQ-701) 

Dear Mr. Wtiamson: 

You ask whether the Texas Railroad Commission (the “commission”) is required 

to pay certain fee-s when 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 of the notice in the office of the 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. ?%e clerk shall rewed 

the notice in ,the real property recorak of the county. The cod 

sion shall fiunish a copy of the notice to a holder of a lien on the well 

or a nonoperator 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 118.01 I(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 in the office of the county clerk a d ocutnent 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 at HOUSC Dommmt Diilon OtXa) (to be cd&d as Nat Res. 

code p 89.043(e)). This opinion does not consida the &U of that amendment 

=As of Sqxemtu 1.1995, section 291.007 will be rmunbmd as seUion 291.008. See S.B. 959. 

AU of April 25.1995.74th Lq., RS.. oh 76.0 17.01, ovoilable in Westlaw, Tx-Lqis 76 (1995) (copies 

available at senate 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, 3 2, 1993 Tex. Sess. 

Law Serv. 3261, 3262, authorizes a commissioners court to impose a security fee to be 

charged at the time of filing 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 agencies an&or govemmenlol 

represenfatives.” (Emphasis added.) The revisor’s note following section 118.011 states 

as follows: 

The revised law substitutes “any person” for the list of legal 

entities in V.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, 5 51, 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 Govemmemt Cd. Section 51.318 of the t3amumtcodc,howeva,pertainstofces 

ebargcd by distria 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. 5 2, at 1790-91. 

House Bill 80 provided in pertinent part that “‘the fees 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 of House 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 1 and 3 

of article 3912e insofx as it applied to fees under Probate Code or Code of Crhninal 

Procedure). Thus, the State must pay 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 5 291.007(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 of May 22,1993,73d Leg., RS., ch. 818,s I,1993 

Tar Sess. ,Law Serv. 3261, 3262.4 See generally Attorney General Opinion DM-283 

(1994) (wnstruing Local Gov’t Code 3 291.007). 

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 In We&w, 

TX-Le.& data base (copia wailable at Senate BiU Diswiition 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 

$5 311.025(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 118.01 l(a)(2) 

and 118.013(a), a records management and preservation 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 of Texas 

he might su~esf that no rcfmmee is made to the State and political subdivtsions with Rspcd 

to the subs&ion (d) fee buzausc the legislahuc 8ssumcd that they would be precluded from paying the fee 

under seuion lU.oo4@). This algument is not convincing, howcVu, bxausc section 154.004(b) only 

pnzcludcs the State and count@ from Paying fees. It does not pm&de the IKJSI of other types of political 

mtdivision5 from paying fees. 
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