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 as having been 

delivered or mailed to the 

adverse party or his attorneys. 

Dear Mr. Flores: 

Your question concerns the amendment to Rule 72 of the Texas Rules of 

Civil Procedure which became effective January 1, 1978, pursuant to order of 

the Texas Supreme Court. In pertinent part the amended rule reads: 

Whenever any party files, or asks leave to file any 

pleading, plea, or motion of any character which is not 

by law or by these rules required to be served upon the 

adverse party, he shall at the same time either deliver 

or mail to the adverse party or his attorney of record a 

copy of such pleading, 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 he has complied with 

the provisions of this rule. . . . 

The emphasized language was added by the recent amendment. You ask if a 

court clerk may now refuse to accept for filing pleadings that are not 

certified in accordance 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 of any pleading in accordance with the preceding 

rule, a certified copy may be ordered to be furnished 

P. 4683 
Honorable Romeo Flores - Page 2 (H-1195) 

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 of the ‘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 of filing, and sign his name officially thereto. 

Rule 74 states: 

The filing of pleadings, other papers and exhibits as 

required by these rules shall be made by filing them with the 

clerk of the court, except that the judge may permit the 

papers to be filed 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. In our opinion the duty of the clerk of a trial 

court with respect to filing pleadings, other papers, and exhibits is made ministerial 

by the rules of civil procedure, not discretionary. See Wagner v. Garrett, 269 S.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 no judicial power upon the clerk to apply 

sanctions. 

We believe 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 of the 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 of Civil Procedure. 

Very truly yours, 

/ 2 / 443 7/L, 

_, / 

Attorney General of Texas 

p. 4684 
Honorable Romeo Flores - Page 3 (H-1155) 

APPROVED: 

55$---Y&y 

DAVID M. ENDALL, First Assistant 

C. ROBERT HEATH. Chairman 

Opinion Committee ’ 

jst 

p. 4685