### 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 depositbefore accepting any Instruments for filing and Issuanceof Dear Sir: process or recordatlon.

You have requestedan opinion on the following question:

2067 %ag a County or District Clerk refuse to file law suits and Issue process and refuse to file Instrumentsand 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 (oldArticle Vernon's Civil Statutesunchanged) 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 depositinga 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 Procedureprovides In part that when a party Is too poor to pay costs and Is unable to give security therefor, the clerk shallHon. Frank D. McCown, page 2 (S-42)

nevertheless

file the suit, Issue process and perform all other servicesrequiredof him In the same manneras If securityhas been given.

The pertinentpart of Article 3932,Vernon's Civil Statutes,applicableto your questionwhether a clerk may demandrecording fees prior to the filingand recording Is aa follows:

"

. . . No County Clerk shall be compelled to file or record any Instrumentof writing permittedor requiredby law to be recorded until the payment or tender of paymentof all legal fees for such filing or Fecordlnghas been made. Nothingherein 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 presentedto him, but he Is not requiredto Issue any processthereonwithout security for costs In said. cause, or.unleasa sum of money Is deposited with the clerk sufflclentto secure the'estlrnated copts, or unless the plaintiffshall file a paupersaffidavitIn lieu of the bond or deposit.

Further, the county clerk shall collectall legal fees before filing or recordingany instrument requiredby law to be filed or recorded,except "papers or Instruments

filed or recorded In suits pending In the County Court."

suMMARY

Clerks of the districtand county couzyts are required to file petitionsIn lawsuitswhen presentedto them, but are not required to Issue process thereonunless securityfor costs Is given or 1s avoided In one of the ways providedbyHon. 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