JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12549 

Austin. TX. 78711. 254S 

5121475.2601 

Telex 9101874-1387 

Telecopier 51214750268 

714 Jackson. Suite 700 

Dallas. TX. 75202.4506 

214/742-8944 

4824 Alberta Ave.. Suite 190 

El Paso. TX. 799052793 

91M33.3184 

11 Texas, Sulfa 700 

mston. TX. 77002.3111 

7131223-5886 

606 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

8061747-5238 

4309 N. Tenth. Suite B 

McAllen. TX. 785ol.lS85 

51%02-4547 

2M) Main Plaza. Suite 400 

San Anhnio. TX. 192052797 

51212254191 

An Equal OpportunityI 

Atfirmalive Action E~plovw 

The Attorney General of Texas 

Ncvember 2, 1984 

Honorable Henry Wade Opinion No. m-223 

District Attorney 

Condemnation Section 

Services Building 

Re: County clerk’s fee for 

filing and recording a certifDallas, Texas 752x! icate of service under the 

probate code 

Dear Mr. Wade: 

You ha&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 a consequence of eschcat 

of a portion 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. The clerk 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! 420 provides: 

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 made shall mall to the State 

Treasure:: a certified copy of such order within 

thirty days after the same has been made. Whenever the clerk mails such copy. he shall take from 

the postmaster with whom it is mailed a certificate stating that such certified copy was mailed 

in his oEfice. addressed to the State Treasurer at 

Austin, Texas, and the date when it was mailed, 

and shall record such certificate. 

You have 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: 

p. 1001 
Ronorable Henry Wade - Page i (JM-223) 

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 same with the clerk 

of the court ordering such payment; and such 

receipt shall be ::trcorded in the minutes of the 

court. 

And third, you have asked vtat fee may be 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 make the 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 and recording the receipt of payment from 

the state treasurer under section 430. A prior opinion of this office 

concluded that the state treasurer was not required to pay any fees to 

the county clerk for the certification required under section 428 of 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). A general probate fee for the administration of an estate 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 

on which a return 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.” && 

We believe 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 has been mailed to the state treasurer. With 

regard to the filing of the receipt by the administrator. hovever, we 

believe that the county clerc may collect the fee specified by article 

3930(b), section -lB(l)(b)(i:‘, which provides for the fee for filing 

p. 1002 
Ronorable Henry Wade - Page 3 1:~-223) 

and recording legal documents and instruments in au open probate 

docket. 

SUMMARY 

A fee may not be collected by 6 probate court 

clerk for certifying a court order or filing a 

certificate as required under section 428 of the 

Probate Code. A filing fee may be collected for 

the filing by an ahrdnistrator of his receipt from 

the state treasure!' of the escheat payment. 

JIM MATTOX 

Attorney General of Texas 

TOH GREEN 

First Assistant Attorney Gens?ral 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Hoelllnger 

Nancy Sutton 

p. 1003