Case Information
*1 The Attorney General of Texas October 24, 1984 JIM MATTOX
Attorney General Eonorable Mike Driszoll Opinion No. JM-216
Supreme Court Bullding Harris County Attorwy P. 0. BOX 12548 1001 Preston, Suite 634 Re: Whether a district Austin, TX. 7871% 2543 512/4742501 Boueton, Texas 7 7,102 must docket a transferred case Telex 9101874.lM7 before fee is paid Telecopier 5W475.0266
Dear Mr. Driscoll: 714 Jackson. Suite 700 Dallas. TX. 75202.4508
You have requested our opinion regarding a procedural matter 2141742-0944 under the Texas Rules of Civil Procedure. You ask whether the Harris
County district ,::Lerk is to his county pursuant to rule 89 before a filing fee is 4824 Alberta Ave.. Suite 180 paid. You have a:lllo asked how such a case may be dismissed if such El Paso, TX. 7SSO5-2793 915m3aS4 fee is not p~nid. Rule 89 of t:>e Texas Rules of Civil Procedure sets out the IO1 Texas, Suite 700 procedural steps required when a case has been transferred to another
.,ous,on, TX. 77002.3111 county under a transfer of venue. Portions of the rule follow: 7131223-5888 If a mation to transfer venue is sustained, the 800 Broadway. Suite 312 cause shall not be dismissed, but the court shall Lubbock. TX. 79401-3479 transfer said cause to the proper court; and the 808/747-5233 costs incurred prior the time such suit is filed the to which said cause 43OS N. Tenth. Suite S shall be taxed against the plaintiff. ,&Alla”, TX. 7SMl~lSSS The clerk shall make up a transcript of all 512IS82-4547 orders :n;lde in said cause, certifying thereto
officially under the seal of the court, and send 200 Main Plaza. Suits 400 it with l:he original papers in the cause to the San Antonio. TX. 782052797 clerk 01’ the court to which the venue has been 5121225-4191 changed. . . . After cause has been
transferred, as above provided the clerk of the court to which the cause has been transferred shall ~.il notification to the plaintiff or his attorney transfer of the cause has been completed, that the filing fee in the proper court is due and payable within thirty days from the mailing cf such notification. and that the case may be tlj.smissed if fee is not timely paid; and if such filing is timely paid, cause will be subject to trial at the expiration p.. 969
Ronorable Mike Driscoll - Page 2 (J&216)
of thirty days a:f,:er the mailing Of notification to the parties ox their attorneys by the clerk that the papers h,ave been f,iled in the court which the cause has been transferred; and if the filing is not timely paid, any of the to which the case might have transferee county been assigned, upon its own motion or the motion of a party, ma:{ dismiss cause without prejudice to the refiling of same.
Tex. R. Civ. Proc. 89. th#%,: rule 89, when read in conjunction with
It is our opinion door! not require the district article 3927, V.T.C.S., under a transfer of venue until fee of $23.00 Is paid. Under rule 89, the clerk of
the court to which a caho is required to receive files and orders entered in the case certified copies of the papers. and to notify the plaintifE,, that the case has been “transferred” and l,f the filing fee is not paid, any district that a filing fee is due.
court “to which the case might have been assigned” may dismiss contained in rule 89, we believe, implies cause. This last phrase, that is, placed on the docket of a that the case is not “assigned,” particular court, before fee is paid.
In any event, article 3927, which controls in the event of a conflict with a rule of procedure promulgated by the supreme court, clearly provides that an ixtion cannot be docketed before fee is paid. The statute yovides as follows:
The clerks of .rhe district courts shall receive the following fers for their services: (1) The fees in this Subsection shall be due and payable, and shall be paid at the time suit or action is filed. including appeals from
For each sd.t filed, inferior courts . . . . . . . . . . . . . $25.00.
V.T.C.S. art. 3927.
With regard to your inquiry concerning the manner of dismissal of cases for which filing fees are not paid, we believe that any district judge of a court in the transferee county ro which the case might have been assigned would have the authority under rule 89 to enter an order that the case is dismissed, notwithstanding the fact that it has not been assigned to any particular court within county. See - *3 lionorable Mike Driscoll - Pqe 3 (m-216) 199a (authority local rules relating
V.T.C.S. art.
assignment of cases).
SUMMARY Cases transfermd under a change of venue need not be assigned and docketed the transferee county until a fi:L:ing fee is paid.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney Gaxral
DAVID R. RICHARDS
Btecutive Assistant Attorne? 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 Moellinger
Nancy Sutton