JIMMAlTOX AttorneyGeneral
Supreme CourtBuilding P.0. Box12549 Austin. TX. 78711. 254S 5121475.2601 Telex 9101874-1387 Telecopier 51214750268

714Jackson. Suite 700 Dallas. TX. 75202.4506 214/742-8944

4824 Alberta Ave..Suite 190 ElPaso. TX. 799052793 91M33.3184

11Texas, Sulfa 700 mston. TX. 77002.3111 7131223-5886

606Broadway. Suite 312 Lubbock. TX. 79401.3479 8061747-5238

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2M)Main Plaza. Suite 400 SanAnhnio. TX. 192052797 51212254191

AnEqual OpportunityI Atfirmalive Action E~plovw 

# TheAttorney GeneralofTexas

**Ncvember** 2, **1984**

Honorable Henry Wade Opinion No. m-223 District Attorney Condemnation Section Services Building Re: County clerk’s fee for filing andrecording acertifDallas, Texas 752x! icate of service under the probate code DearMr.Wade: Youha&reques,ted **our** opinion regarding fees of office which the county clerk may collect in **certain** probate **matters.** Specifically, you have asked what fees the county clerk is authorized to charge **for** the filing of certefn documents generated as aconsequence of eschcat of aportion of the deceased’s estate to the state of Texas. You ask whether the county clerk may charge a $4.00 fee for filing and recording a certificate of service executed pursuant to section 428 of the Texas Probate Code. Section 428 requires the clerk of the probate **court** to mail a certified copy of the court escheat order to the state treasurer. Theclerk is required under section 426 to record a certificate from the postmaster stating that such a certified copy of court order was properly mailed to the state treasurer. Sectlot! 420provides:

Whenever an order shall be made by the court for an executor or an administrator to pay any funds to i:he State Treasurer under the preceedlng provisions of this Code. the clerk of the court in which .su:h order is madeshall mall to the State Treasure:: a certified copy of such order within thirty days after the samehas been made. Whenever the clerk mails such copy. he shall take from the postmaster with whomit is mailed a **certi** ficate stating that such certified copy wasmailed in his oEfice. addressed to the State Treasurer at Austin, Texas, and the date when it was mailed, andshall record such certificate. Youhave also asked what fee, If any, the county clerk is required to collect for recording the receipt filed by an administrator of an estate pursuant to section 430, which provides:

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Whenever an exetmtor or administrator pays the State Treasurer ;u,y funds of the estate he represents, under the preceeding provisions of this Code, he shall take from the State Treasurer a receipt for such payment, with official seal attached, and shall file the samewith the clerk of the court ordering such payment; and such receipt shall be ::trcorded in the minutes of the court. Andthird, you have asked vtat fee maybe collected for certifying a copy of the court’s escheat order as is required under section 428. It is the court clerk’s legal duty to makethe certification and record the certificate as i:s required by section 428. The administrator of the estate does not request the certification under section 428, nor offer for filing the certificate. The administrator does, **however,** present for filing andrecording the receipt of payment from the state treasurer under section 430. Aprior opinion of this office concluded that the state treasurer wasnot required topay anyfees to the county clerk for the certification required under section 428of a court order transmitted **to** the state treasurer’s office. Attorney General Opinion M-170 (1967). This opinion reasoned that the section 428 certification was not a “service rendered” for purposes of the county clerk fee statutes, articles 3930 and 3930(b). V.T.C.S. The certification and certificat.e filing under section 428, we believe, are internal procedures in the county clerk’s office and are not subject to the county clerk fee statutes which specify the fees for

“services rendered.” V.T.C.S., arts. 3930, 3930(b). The probate fees pemil:t:ed to be collected by the county clerk are set by article 3930(b). Ageneral probate fee for the administration of anestate is $35.00, which fee covers the required issuance of all writs, process and

all other instruments. documents, or papers authorized, permitted or required to be issued by said county clerk or said clerk of probate courts onwhich areturn uust be recorded. , . . V.T.C.S. art. 3930(b), §lB(:,). This general fee includes “all other clerical duties in connection with such probate court docket.” && Webelieve therefore that the general fee required for the filing and administration of an estate! covers the certification of the court order required by section l,28 and the recording of the certificate that such certified copy hasbeen mailed to the state treasurer. With regard to the filing of the receipt by the administrator. hovever, we believe that the county clerc maycollect the fee specified by article 3930(b), section -lB(l)(b)(i:‘, which provides for the fee for filing

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and recording legal documents and instruments in au open probate docket. SUMMARY

Afee maynot be collected by 6probate court clerk for certifying a court order or filing a certificate as required under section 428 of the Probate Code. A filing fee maybe collected for the filing by anahrdnistrator of his receipt from the state treasure!' of the escheat payment.

JIM MATTOX Attorney General of Texas TOHGREEN First Assistant Attorney Gens?ral DAVIDR. RICHARDS Executive Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin. Chairman Colin Carl Susan Garrison TonyGuillory JimHoelllnger Nancy Sutton

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