### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

August lo,2004

The Honorable Mike Stafford Harris County Attorney 1019 Congress, 15th Floor Houston, Texas 77002 Gpinion No. GA-0231
Re: Whether the family protection fee, which section 51.961 ofthe Government Code authorizes acommissioners court to adopt, violates the open courts provision, article I, section 13of the Texas Constitution (RQ-0166-GA)
Dear Mr. Stafford:
You ask whether the family protection fee, which section 51.961 of the Government Code authorizes acommissioners court to adopt, violates the open courts provision, article I, section 13 ofthe Texas Constitution.’
Section 51.961 ofthe Government Code, which the legislature adopted in 2003, see Act of June 1, 2003, 78th Leg., R.S., ch. 198, 5 2.165(a), 2003 Tex. Gen. Laws 611, 711, authorizes a county commissioners court to adopt afamily protection fee, “in an amount not to exceed $15,” that the district orcounty clerk must collect “atthe time asuit for dissolution of amarriage under Chapter 6,Family Code, is tiled.” TEX. GOV’T CODE ANN.551.961(a)-(b) (Vernon Supp. 2004). Butsee id. §51.961(c) (prohibiting aclerk from collecting the family protection fee from certain persons). The fee is to be deposited into afamily protection account in the county treasury and used to fund nonprofit organizations that work in the area of family violence:

(d) The clerk shall pay afee collected under this section to the appropriate officer ofthe county in which the suit isfiled for deposit inthe county treasury to the credit of the family protection account. The account may be used by the commissioners court of the county only to fund a service provider located in that county or an adjacent county. The commissioners court may provide funding to a nonprofit organization that provides services described by Subsection (e). (e) A service provider who received funds under Subsection(d) may provide family violence prevention, intervention, mental health, counseling, legal, and

‘Letter from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Texas Attorney General (Jan. 14,2004) (on file with the Opinion Committee, also availableat http://www.oag.state.tx.us).The Honorable Mike Stafford - Page 2 (GA-023 1)

marriage preservation services to families that are atrisk ofexperiencing orthat have experienced family violence or the abuse orneglect of achild. Id. 5 51.961(d)-(e). For the purposes of section 51.961, the term “family violence” includes intrahousehold assaults or threats, child abuse, and dating violence:

(1) an actby amember of afamily orhousehold against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is athreat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse by a member of a family or household toward a child of the family orhousehold; or (3) dating violence

. 

### TEX. FAM.CODE ANN. 5 71.004 (Vernon 2002); see id. 5 71.0021 (defining the term “dating violence”); 

### TEX.

GOV’TCODEANN.951.961(f) (V emon Supp. 2004) (defining the term “family violence” as Family Code section 71.004 defines it).
Article I, section 13ofthe Texas Constitution, the “open courts provision,” provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. ANcourts shall beopen, and evelyperson for an injmy done him, inhislands, goods, person orreputation, shall have remedy bydue course of law.


### TEX. CONST. art. I, 5 13 (emphasis added). “The open courts provision specifically guarantees all litigants the right to” redress their grievances in court. LeCroy v.Ha&on, 713 S.W.2d 335, 341 (Tex. 1986). The legislature maynot “arbitrarilyorunreasonably interfere” with this right. Id. You ask in particular about article I, section 13’s second sentence, italicized above.
A 1986 decision ofthe Texas Supreme Court, LeCroy Y.Ha&on, construes the open courts provision toprohibit the use oftiling fee revenues that areused fornon-court-related programs. See id. at 342. The LeCroy court found unconstitutional astatute that allocated $40 of adistrict court’s tiling fee to the state’s general revenues. See id. Inthe court’s view, the fee was a“general revenue tax on the right to litigate” because it went to statewide programs other than the judiciary. Id. According tothe court, filing fees “areusually constitutional,” but “filing fees that goto state general revenues-in other words taxes on the right to litigate thatpay for other programs besides the judiciary-are unreasonable impositions on the state constitutional right of access to the courts.” Id. at 342 (emphasis added). Similarly, in 1994 the Dallas court ofappeals, inDallas County Y.Sweitzer, invalidated two fees under the open courts provision. SeeDallas County v.Sweitzer, 881 

### S.W.2d 757, 766(Tex. App.-Dallas 1994, writ denied). The court first found unconstitutional a sheriff fee, collected inThe Honorable Mike Stafford - Page 3 (GA-0231)

accordance with section 118.131 of the Local Government Code, that the county placed in the county’s general fund. See id.;see also TEX.

### LOC. GOV’TCODEANN.5 118.131(a) (Vernon 1999) (authorizing a commissioners court to “set reasonable fees” for the sheriffs office’s services). Following LeCroy, the court concluded that a fee deposited in the general revenue fund could be spent on county programs other than the judiciary. Sweitzer, 881 S.W.2d at 765. The court also found unconstitutional section 51.601 of the Government Code, which directed certain clerks of court to collect acourt reporter fee and to deposit it into the county’s general fund. Id. at 766; see also Act ofMay 18,1989,71st Leg., R.S., ch. 1080,s 6,1989 Tex. Gen. Laws 4354,4356, amended by Act ofMay 10,1995,74th Leg., R.S., ch. 144, $2,1995 Tex. Gen. Laws 992,992.
Texas courts have not had the opportunity to consider the constitutionality of the family protection fee under article I, section 13’s open courts provision. We are required to presume that a statute isconstitutional. See TEX.

### GOV’TCODEANN.5311.021(l) (Vernon 1998); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659,662 (Tex. 1996). Moreover, asthe Texas Supreme Court stated inLeCroy, “[fjiling fees areusually constitutional.” LeCroy, 713 S.W.2d at 342. We presume, therefore, that the family protection fee is a constitutional filing fee. In accordance with the supreme court’s construction ofthe open courts provision inLeCroy, however, the family protection fee may be expended only for court-related purposes. See id.; see also Sweitzer, 881 S.W.2d at 765.
We do not believe the fact that the family protection fees are deposited “in the county treasury to the credit of the family protection account,” see 

### TEX. GOV’TCODEANN. 5 51.961(d) (vemon Supp. 2004), is sufficient grounds for distinguishing LeCroy and for concluding that uses of the family protection fee need not be examined for their relationship to court-related purposes. LeCroy indicates that a filing fee that is deposited into a general revenue fund is per se unconstitutional, but that conclusion does not mean that afiling fee deposited into aspecial account isper se constitutional. See LeCroy, 713 S.W.2d at 342. Indeed, LeCroy premised its conclusion in part on Cracker v. Finley, a 1984 decision of the Illinois Supreme Court that considered a fee closely analogous to the fee at issue here: afee, deposited into a special fund, to be used “to fund shelters and other services for victims of domestic violence in Illinois.” Cracker v.Finley, 459 N.E.2d 1346,1348-49 (Ill. 1984); seeLeCroy, 713 S.W.2dat 342-43. The Crockercourtdetermined that the purposes forwhich the fee revenues could be used were not court related. See Cracker, 459 N.E.2d at 1351.
Courts in two other states have considered similar fees under analogous open courts provisions, and both have determined that the fees may be used for unconstitutional purposes. In Cracker, discussed briefly above, the Illinois Supreme Court expressly rejected arguments that the use of a filing fee for domestic violence programs “enable[s] victims to use the court system more efficiently.

..The moral and emotional support provided enhance some victims’ resolve to obtain relief in the courts, while preventing others from filing cases that they are not yet ready to pursue.” Cracker, 459 N.E.2d at 1351. And, in a 1997 opinion the Louisiana Supreme Court, relying inpart onLeCroy, invalidated astatute imposing acourt filing fee in certain city courts “to benefit [Safety Net for Abused Persons, or “SNAP”], a domestic violence program and shelter serving Iberia Parish.” SafetyNetforAbusedPersons v.Segura, 692 So. 2d 1038,1039 (La. 1997). AlthoughtheThe Honorable Mike Stafford - Page 4 (GA-0231)

fee was to be deposited in a special fund to benefit SNAP, the court found that the statute violated “the right of access to the courts
.because its purpose-to fund domestic abuse services-is unrelated to the administration ofjustice.” Id. at 1043. Evaluating SNAP in particular, the court stated that the services provided by SNAP, which included shelter, counseling, and information for abuse victims, “have no logical connection to thejudicial system.” Id. at 1044. Further, the court noted that “SNAP is not a part of the judicial branch, it serves nojudicial or even quasi-judicial function, it is not aprogram administered by the judiciary, and it is not a link in the chain of the justice system.” Id. at 1045.
Two state courts have upheld fees similar to the family protection fee, but we are unable to rely on them. See Villars v.Provo, 440 N.W.2d 160, 164 (Minn. App. 1989); Browning v. Corbett, 734 P.2d 1030,1033 (Ariz. App. 1986). In 1989 the Minnesota court ofappeals concluded, without analysis, that afiling fee to fund programs serving battered women and displaced homemakers did not violate the state constitutional requirement that “justice be obtained ‘freely’ and ‘without purchase.“’ Villars, 440 N.W.2d at 164 (quoting MINN.

### CONST. art. I, 58). Because the Minnesota court provided no reasons, we cannot evaluate its application in Texas. In a 1986 case the Arizona court of appeals upheld astatute requiring the parties to amarriage dissolution action to pay acourt tiling fee “which is distributed between the domestic violence shelter fund and the child abuse prevention and treatment fund.” Browning, 734 P.2d at 1031. But the court noted that the Arizona Constitution contains no open courts provision, see id. at 1033, and for this reason the case is not persuasive in Texas, whose constitution has an open courts provision, see 

### TEX. CONST. art. I, $13.
Given LeCroy and the Illinois and Louisiana cases specifically addressing the use of filing fee revenues for family-violence purposes, we conclude that Government Code section 51.961 is constitutional, but that family protection fee revenues may be used for court-related purposes only. Certainly, many ofthe uses towhich family protection fee revenues may be put under section 51.961 are court related and therefore consistent with the open courts provision. Section 51.961(e) lists all of the following as permissible uses for fee revenues: “family violence prevention, intervention, mental health, counseling, legal, and marriage preservation services.” 

### TEX. GOV'TCODEANN.$ 51.961(e) (Vernon Supp. 2004). As the Family Violence Resource Project noted in areport to the Texas State Bar, the legal system often isinvolved in family violence matters: “providing protection to victims of family violence, prosecuting, punishing and rehabilitating perpetrators of family violence, and helping to develop more effective means of responding to the problem of family violence.” 

### FAMILYVIOLENCERESOURCE PROJECT,APROPOSAL

TOTHESTATEBAROFTEXAS BOARLIOFDIRECTORS atl(2000).
We cannot say as a matter of law that all possible uses may be court related, however. Whether any particular use of family protection fee revenues iscourt related is aquestion requiring the resolution offact questions, and is, therefore, ultimately beyond this office’s authority. See 

### Tex. Att’y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process). A county commissioners court, which has sole authority to distribute the fee revenues, must determine whether aparticularproposed use iscourt related. See 

### TEX. GOV'T CODE ANN.951.961(d) (Vernon Supp. 2004).- The Honorable Mike Stafford - Page 5 (GA-0231)

SUMMARY
To avoid contravening the open courts provision, article I, section 13 of the Texas Constitution, revenues from the family protection fee, which acounty may adopt under section 51.961ofthe Government Code, may be used only for court-related purposes. Many uses that are consistent with those listed in section 51.961, “family violence prevention, intervention, mental health, counseling, legal, and marriage preservation services,” may be found tobe court related. The county commissioners court must determine whether any particular use of family protection fee revenues is court related, however.

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee