# The Attorney General of Texas April 18, 1978

Honorable Romeo Flores County Attorney for Jim P.0. Drawer 2080 Alice, Texas 78332 Wells Opinion No.II- 1155 Re: Duty of clerks of court when called upon to file pleadings not certified ashaving been delivered or mailed to the adverse party orhis attorneys. Dear Mr.Flores: Yourquestion concerns the amendment to Rule 72ofthe Texas Rules of Civil Procedure which became effective January 1,1978,pursuant to order of the Texas Supreme Court. Inpertinent part the amended rule reads:

Whenever any party files, or asks leave to file any pleading, plea, or motion ofany character which isnot by law orby these rules required tobe served upon the adverse party, he shall at the same time either deliver or mail to the adverse party orhis attorney ofrecord a copy of suchpleading, plea or motion. The attorney or authorized representative of such attorney, shall certify to the court on the filed pleading in writing over his personal signature, that hehas complied with the provisions ofthis rule.

... The emphasized language was added by the recent amendment. Youask ifa court clerk may now refuse to accept for filing pleadings that are not certified inaccordance with the rule. Prior to the addition of the certification requirement, the consequence of a failure to obey Rule 72 was spelled out by Rule 73, which has not been changed: If any party fails to furnish the adverse party with a

copy ofany pleading in accordance with the preceding rule, a certified copy may be ordered to be furnished

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by the clerk and the costs thereof charged to the party who had failed to comply with the order to furnish the same. Rule 24,regarding the duty ofthe ‘clerk, also remains unchanged. It reads: When n petition is filed with the clerk he shall endorse thereon the file number, the day on which it was filed and the time offiling, and signhisname officially thereto. Rule 74states:The filing of pleadings, other papers and exhibits as

required bythese rules shall be made byfiling them with the clerk of the court, except that the judge may permit the papers tobefiled with him.

.. . When the Supreme Court has meant for the clerk of a court to exercise discretion with respect to documents offered for filing, it has plainly said so. See V.T.R.C.P., rules 388, 389, 389a, 480. Inour opinion the duty ofthe clerk ofa trial court with respect to filing pleadings, other papers, andexhibits ismade ministerial by the rules ofcivil procedure, not discretionary. See Wagner v. Garrett, 269S.W. 1030 (Tex. 1925). See also Benge v. Foster, 47 Sx.2d 862 (Tex. Civ. App. - Amarillo 1932,writ- Though the court itself may apply sanctions such as those permitted by Rules 68 (repleader) and 70 (surprise) for a failure to comply with Rule 72, the amended rules confer nojudicial power upon the clerk to apply sanctions. Webelieve the clerk must file the papers offered, whether he thinks them properly certified or not; if the clerk believes required certification is inadequate or missing, after filing them he may flag the pleadings or otherwise bring them to the attention ofthe court. @ Attorney General Opinion H-826(1976). SUMMARY A trial court clerk cannot refuse to file pleadings which appear to him inadequately certified pursuant to Rule 72, Texas Rules ofCivil Procedure.Very truly yours, /

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7/L, 

# _, / Attorney General ofTexas

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APPROVED: 

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DAVIDM. ENDALL, First Assistant

C. ROBERT HEATH.Chairman Opinion Committee ’ jst

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