# THE ATTORNEY GENERAL OF TEXAS

The Honorable Joe Resweber County Attorney Opinion No. H-43 Harris County Courthouse Houston, Texas 77002

Dear Mr. Resweber: Re: Is the County Clerk authorized to collect fees for filing papers for discovery proceedings inaid of enforcement ofafinal judgment pursuant to Rule 621a of the Texas Rules of Civil Procedures? Your letter requesting our opinion **asks** whether the County Clerk is authorized to collect fees for filing papers for discovery proceedings inaid ofthe enforcement.of afinal judgment pursuant to Rule 621a of the Texas Rules of Civil Procedure. Rules 62la, effective only January 1, 1971, authorizes the holder ofajudgment to maintain discovery proceedings inthe court inthe same suit inwhich thejudgment was rendered for the purpose of obtaining information toaid in the enforcement ofthejudgment. Nothing is said about fees. However, in 1967 the Legislature adopted Article 3930 (b) Vernon’s Texas Civil Statutes (Acts 1967, 60th Leg., p. 1785, Ch. 680). The statute, in appropriate paragraphs A, B, C,D,E and F, covers six different situations in which fees are collectible. We are concerned with paragraphs A and C. Paragraph A, generally having to dowith fees for county civilcourt dockets, by itsterms, applies to proceedings “while the docket is still open:”

p. 173The Honorable Joe Resweber, page 2 (H-43)

“For each cause or action, or docket in County Civil Courts; for filing, or filing and registering. or filing and recording, and for docketing and including taxing costs for each and all applications, complaints, petitions, returns, documents, papers, legal instruments, records and/or oroceedings; for issuing, including the recording ofthe return thereon, each and all citations, notices, subpoenas, commissions to take depositions, executions while the docket is still open, garnishments before judgments, orders, writs, processes, or any and all other instruments, documents or papers authorized, permitted or required to be issued by said county clerk or said clerk ofcounty courts onwhich a return must be recorded; for all attendance6 which a return must be recorded; for all attendantes in court as clerk ofcourt; for impaneling ajury; for swearing witnesses; for approving bonds involved in court actions, for administering oaths; and for all other clerical duties inconnection with such county civil court docket:
. . . ” Itrequires a fee of $10.00 inmost suits “which fee is to be paid but one time in each cause or docket, or suit, and which fee excludes the items listed in Paragraph B, C,Dand E ofthis Section 1:
. . . .”

Paragraph Bprovides for fees for probate court dockets. Paragraph Cis as follows: “Where no cause is pending, as is contemplated in Section 1, Paragraphs A and Bhereof, the clerk shall charge as follows for the hereinafter listed services, for issuing (including recording of the returns thereon), each citation, notice, commission to take depositions, execution, order, writ, process, or any other instrument, document, or paper authorized, permitted or required to be issued by said county clerk or said clerk of county courts onwhich a return must be recorded:

p. 174The Honorable Joe Rerweber, page 3 (H-.43)

“(i) For irsuing each such instrument, document, or paper, including the original and one copy and the recording ofthe return, afee, to be paid at the time each order is placed, of

. . . $3.00.
. . .” Paragraph Dhas to dowith issuing certificates, certified copies, etc. Paragraph Eapplies to Letters Testamentary, Letters of Guardianship and similar instruments. Subparagraph 

### Fapplies to the filing and keeping ofwills held for safekeeping.

As we construe Article 3930(b), ifat the time the provisions of Rule 621a are invoked the original cause ofaction is still pending upon the docket of **the court,**  the successful partymay file or require the issuance ofwhatever papers are necessary under Rule 621a without incurring liability for 

### anyadditional fee. Onthe other hand, ifthere is nocause pending and the proceeding must be brought under Paragraph C, then the Clerk is entitled to 

### a charge of $3.00 for issuing each instrument, document, or paper, but not for merely filing the same. If, a’s

### may be true in discovery proceedings under the amended rules, the Clerk is not called upon to issue any instruments, we see no authority for him to charge 

### afee.

Itis our construction ofArticles 3930 and 3930A-1 that they apply only to the non-court aspects ofthe functions ofthe County Clerk’s office and that eubsection (9) ofArticle 3930 does notauthorize the Clerk to set afee for filing instruments in **court** proceedings. SUMMARY Article 393013, Vernon’s Texas Civil Statutes, governs fees to be charged inaproceeding brought under Rule 621a ofthe Texas Rules of Civil Procedure. Ifthe action is still pending upon the docket ofthe court at the time such proceedings are instituted, they fall within the one time filing fee and noadditional fee is to be charged. Ifnoaction is pending at the time those proceedings are instituted, the County Clerk

p. 175. 1

The Honorable Joe Resweber, page 4 (H-43)

is entitled toafee of $3.00 for each instrument he issues, butis not entitled to charge afee for the mere filing ofinstruments prepared by otherr. Very truly yours,

JOHN L. HILL Attorney General of Texas APPRgVED: r---Y 

# &$iYi!f

DAVID M. KENDALL, Chairman Opinion Committee

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