ATTORNEY GENERAL OF TEXAS 

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 5 1.961 of the Government Code authorizes 

a commissioners court to adopt, violates the open 

courts provision, article I, section 13 of the Texas 

Constitution (RQ-0166-GA) 

Dear Mr. Stafford: 

You ask whether the family protection fee, which section 5 1.961 of the Government Code 

authorizes a commissioners court to adopt, violates the open courts provision, article I, section 13 

of the Texas Constitution.’ 

Section 5 1.961 of the 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 a family protection fee, “in an amount not to exceed $15,” that 

the district or county clerk must collect “at the time a suit for dissolution of a marriage under Chapter 

6, Family Code, is tiled.” TEX. GOV’T CODE ANN. 5 51.961(a)-(b) (Vernon Supp. 2004). But see 

id. § 51.961(c) (prohibiting a clerk from collecting the family protection fee from certain persons). 

The fee is to be deposited into a family 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 a fee collected under this section to the appropriate 

officer of the county in which the suit is filed for deposit in the 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 available at http://www.oag.state.tx.us). 
The Honorable Mike Stafford - Page 2 (GA-023 1) 

marriage preservation services to families that are at risk of experiencing or that have 

experienced family violence or the abuse or neglect of a child. 

Id. 5 5 1.961(d)-(e). For the purposes of section 5 1.961, the term “family violence” includes intrahousehold assaults or threats, child abuse, and dating violence: 

(1) an act by a member of a family or household 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 a threat 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 or household; 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’T CODE ANN. 9 51.961(f) (Vemon Supp. 2004) (defining the term “family 

violence” as Family Code section 71.004 defines it). 

Article I, section 13 of the Texas Constitution, the “open courts provision,” provides: 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 

or unusual punishment inflicted. AN courts shall be open, and evelyperson for an 

injmy done him, in his lands, goods, person or reputation, shall have remedy by due 

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 of the Texas Supreme Court, LeCroy Y. Ha&on, construes the open courts 

provision to prohibit the use of tiling fee revenues that are used for non-court-related programs. See 

id. at 342. The LeCroy court found unconstitutional a statute that allocated $40 of a district court’s 

tiling fee to the state’s general revenues. See id. In the 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 to the court, filing fees “are usually constitutional,” but “filing fees that go to state general 

revenues-in other words taxes on the right to litigate that pay 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 of appeals, in Dallas County Y. Sweitzer, invalidated two 

fees under the open courts provision. See Dallas County v. Sweitzer, 881 S.W.2d 757, 766 (Tex. 

App.-Dallas 1994, writ denied). The court first found unconstitutional a sheriff fee, collected in 
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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’T CODE ANN. 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 5 1.601 of the Government Code, which directed certain clerks of 

court to collect a court 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 of May 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 is constitutional. See TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998); Nootsie, Ltd. 

v. Williamson County Appraisal Dist., 925 S.W.2d 659,662 (Tex. 1996). Moreover, as the Texas 

Supreme Court stated in LeCroy, “[fjiling fees are usually 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 in LeCroy, 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’T CODE ANN. 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 a filing fee deposited into a special 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: a fee, 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 for which 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 135 1. And, in a 1997 opinion the Louisiana Supreme Court, relying in part 

on LeCroy, invalidated a statute imposing a court 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). Althoughthe 
The 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 the judicial system.” Id. at 1044. Further, the court 

noted that “SNAP is not a part of the judicial branch, it serves no judicial or even quasi-judicial 

function, it is not a program 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 of appeals concluded, without 

analysis, that a filing 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, 5 8). Because the Minnesota 

court provided no reasons, we cannot evaluate its application in Texas. In a 1986 case the Arizona 

court of appeals upheld a statute requiring the parties to a marriage dissolution action to pay a court 

tiling fee “which is distributed between the domestic violence shelter fund and the child abuse 

prevention and treatment fund.” Browning, 734 P.2d at 103 1. 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 of the uses to which family protection fee revenues may be put under section 5 1.961 

are court related and therefore consistent with the open courts provision. Section 5 1.961(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'T CODE ANN. $ 

51.961(e) (Vernon Supp. 2004). As the Family Violence Resource Project noted in a report to the 

Texas State Bar, the legal system often is involved 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 is court related is a question requiring 

the resolution of fact 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 is court related. See TEX. GOV'T CODE 

ANN. 9 51.961(d) (Vernon Supp. 2004). 
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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 a county may adopt under section 5 1.96 1 of the 

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 to be 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