THE AcrroltviE~ GENERAL Qks 

AUUTIN II. TEXAS 

xv 18, 1953 

Hon. Frank D. McCown Opinion No. S-42 

County Attorney 

Dallam County Re: Authority of the County and 

Dalhart, Texas District Clerk to require a 

court cost deposit before 

accepting any Instruments 

for filing and Issuance of 

Dear Sir: process or recordatlon. 

You have requested an opinion on the following 

question: 

2067 

%ag a County or District Clerk refuse to file law suits and Issue process 

and refuse to file Instruments and record 

them of record before the costs deposit Is 

made, In the case of law suits, fees are 

pa;iGOln the case of filing and recorda- 

. . 

Rules Civil Procedure, Rule 142 (old Article 

Vernon's Civil Statutes unchanged) provides: 

"The clerk may require from the plalntiff security for costs before Issuing any 

process, but shall file the petition and 

enter the same on the docket. No attorney 

or other officer of the Court shall be 

surety In any case pending In the coyt, 

except under special leave of court. 

Further, security for costs may be made by 

depositing a sum of money In lieu of the bond to the 

clerk of the court. Rules Civil Procedure, Rule 146. 

Rule 145 of..the.Rules of Civil Procedure provides In part that when a party Is too poor to pay costs 

and Is unable to give security therefor, the clerk shall 
Hon. Frank D. McCown, page 2 (S-42) 

nevertheless file the suit, Issue process and perform all 

other services required of him In the same manner as If 

security has been given. 

The pertinent part of Article 3932, Vernon's 

Civil Statutes, applicable to your question whether a 

clerk may demand recording fees prior to the filing and 

recording Is aa follows: 

" 

. . . No County Clerk shall be compelled 

to file or record any Instrument of writing 

permitted or required by law to be recorded 

until the payment or tender of payment of all 

legal fees for such filing or Fecordlng has 

been made. Nothing herein shall be held to 

Include Gapers or in.struments filed or recorded in suits pending In the County Court." 

(Emphasis added). 

It will thus be seen that the county or dlstrlct clerk shall file the petition In every case when 

It la presented to him, but he Is not required to Issue 

any process thereon without security for costs In said. 

cause, or.unleas a sum of money Is deposited with the 

clerk sufflclent to secure the'estlrnated copts, or unless the plaintiff shall file a paupers affidavit In 

lieu of the bond or deposit. 

Further, the county clerk shall collect all 

legal fees before filing or recording any instrument 

required by law to be filed or recorded, except "papers 

or Instruments filed or recorded In suits pending In 

the County Court." 

suMMARY 

Clerks of the district and county 

couzyts are required to file petitions In 

lawsuits when presented to them, but are 

not required to Issue process thereon unless security for costs Is given or 1s 

avoided In one of the ways provided by 
Hon. Frank D. McCown, page 3 (S-42) 

law. Clerks of county courts are not 

required to file or record any instrument required by law to be filed or recorded unless all legal fees are first 

paid or tendered. 

Yours very truly, 

APPROVED: JOHN BEN SHEPPEFID 

Attorney General 

J. C. Davis, Jr. 

County Affairs Division 

Willls E. Gresham 

Reviewer 

Robert S. Trottl 

First Assistants 

By n&a&* 

B. Duncan Davis 

Assistant 

John Ben Shepperd 

Attorney General 

BDD:am