Case Information
*1 @ffice of the Elttocnep Qbnecal
&date of tkxae DAN MORALES August 2,1994 ATTORNEY GENERAL
Honorable David Motley Opinion No. DM-298 Kerr County Attorney Re: Whether, under section 71.04(e) of the
Kerr County Courthouse Family Code, a clerk of court may charge an 700 East Main Street applicant for a protective order more than $36 in Kerr-Ale, Texas 78028-5324
certain cases and related question (RQ-559) Dear Mr. Motley:
You have asked us whether, under section 71.04(e) of the Family Code, a clerk of court may charge an applicant for a protective order in cases of family violencet more than $36 if more than one person requires service or if service of notice of an application for a protective order is attempted but not completed. You also have asked us whether, under Texas Rule of Civil Procedure 145, an applicant for protective order who currently receives a government entitlement based on indigency must specify in an aflidavit other income and assets available to the applicant. We will answer your questions in the order you asked them.
The legislature originally enacted title 4 of the Family Code, of which chapter 71 is a part, in 1979 in an effort to address the problem of family violence. See Alexander, supro note 1, at 1863. Chapter 71 pertains specifically to protective orders. Pursuant to section 71.02 of the Family Code, a person commences a proceeding under chapter 71 by
‘ktion 71.01@)(Z) ofthe Family C&e de&m ‘family violence” as: (A) anactbyamcmkr~s~yorhouscholdagainaanothermemba of the family or hens&old that is intmded to remlt in physical harm, bodily injury,orassault,orthatisathnatthatrcasonablyplacesthewmbcrinfearof imminent physical hsrm, bodily injury, or assault, excluding the reasonable disctpline of a child by a person having that duty; or (B) abuse, as that term is de&ted by Sections 34.102(1)(C), Q, and (G) of this axle, by a member of B family or household toward a child of the family or household. Footnote omitted.]
For pmposes of chapter 71, the term “family” “includes individuals related by consangmm ‘tyoraffhlily,as &ennhud under Article 59%h, Revised Statutes, individuals who are former spouses ef each ether, . . . mdwrdu& who am the biological parents of the same child, without regard to marriage, and a foster child and fester parent, whether or not these individuals reside together.’ Fem. Code g 71.01(b)(3). The term “household” “means a unit composed of persons living togethex in the same dwelling, wh&er or net they am dated to each other.” Id. 5 71.01(b)(S). The term “member of a household” “includes a former member of a household,” i.e., “a person who previously liked in the household.” Id. 8 71.01(b)(4), (6). Seegenerolly Alexander, Tide 4. Pmfection ofthe Fmdly, 21 TEx. TECH. L. REV. 1863.1864-66 (1990). *2 HonorableDavidMotley - Page 2
5ing with the appropriate clerk of court an application for a protective order. See Fam. Code 33 71.03 - .05 (providing for venue, persons qua&d to file applicatiog and contents of application). Section 71.04(e), about which you specifically ask, provides for fees related to the 5ing and service of an application for protective order. It states as follows:
The fee for 5ing an application is $16 and is to be paid to the clerk of the court in which the application is Sled. Except as provided in Section 71.07 of this code, the applicant may not be assessed any other fees, costs, charges, or expenses by the clerk of the wutt or any other public 05cial in connection with the application. The rotnl fees rekzting to the filing of and service of notice of an application for 0 protective order, inchaiing fees m&r Section 71.07 of this coak, may not exceed $36 under ary ciramstunces. An applicant who is unable to pay the filing fee and other costs as provided in Section 71.07 of this code may 5e with the court an a5davit of inability to pay under the procedures, to the extent that they apply, provided by the Texas Rules of Civil Procedure. mphasis added.]
Section 71.07, to which section 71.04(e) refers, provides in pertinent part as follows:
(a) Each individual who is alleged to have committed family violence is entitled to service of notice of an application for a protective order as provided by this section on the 5ii of an application.
. . . . (f) A party 5ing an application for a protective order shall thrnish the clerk with a su5cient number of copies of the application for service of those individuals alleged in the application to have c4mmitted family violence.
(g) A notice of an application for a protective order shall be served in the same manner as a citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized. . . . .
(i) The fee for service of notice of an application for a protective order charged to the applicant under this section may not bemorethan
(1) $20 ifthe notice is delivered in person; or (2) the cost of postage if the service is by registered or certiiied mail.
p. 1593 *3 Section 71.04(e) limits the total fees a clerk may charge an applicant for a protective order to $36. This is equivalent to the amount section 71.04(e) requires a clerk to charge for filing the application ($16) plus the fee section 71.07(i) authorizes a clerk to charge for service of notice of an application for protective order ($20). However, as you suggest, in drafting section 71.07 the legislature contemplated that, upon occasion, multiple services or multiple attempted services must be made. For example, an applicant may allege that more than one individual has committed family violence, and in such a situation, section 71.07(a) entitles each such individual to service of notice of an application for protective order. Additionally, section 71.07(b) requires the clerk to have the notice served in the matmer the applicant directs, which may be one of two methods rule 106(a) of the Texas Rules of Civil Procedure authorize-~ by delivering a copy of the application to the respondent in person, or by mailing a copy of the application to the respondent by registered or certitled mail, return receipt requested. If the- applicant requests that the clerk have the notice served upon the respondent in person, the server may need to make multiple attempts to serve the notiix2 In either situation, section 71.04(e) appears to mandate that the clerk charge only S20 for service, regardless of the number of respondents served or number of times service must be attempted. You ask us, therefore, to resolve the inconsistency you perceive between section 71.04(e) and section 71.07 ofthe Family Code.
The legislature designed title 4 of the Family Code in part to provide protective orders to persons who are poor. Alexander, supra note 1, at 1869. In 1979, when the legislature originally enacted section 71.04(d) (renumbered as subsection (e) in 1989, see Acts 1989,71st Leg., ch. 614,s 2, at 2014-15), it specified a nominal tiling fee of S16 but did not limit the amount a clerk could assess for service of notice of the application for protective order,’ although section 71.07(a) mandated that each respondent was entitled
3As eriginally amted, section 71.04(d) provided that “[t]hs fee for filing an application is 516 sadistok~totheclalrdthecouninwhichthcapplieatioaisfiled” SeeAc&l979,66thLeg,eh 98,s 11, at 185.
to se-rvi~e.~ See Acts 1979, 66th Leg., ch. 98, 8 11, at 185. Clerks therefore charged court costs and service fees in addition to the $16 fXng fee, raising the total fee to a level so high that many eligible persons could not afford to apply for protective orders. Alexander, supra note 1, at 1869. In 1987 the legislature amended section 71.04(d) to prohibit a clerk from assessing in connection with the application any fees, costs, charges, or expenses, other than the fee for service of the notice that section 71.07 authorizess See Acts 1987, 70th Leg., ch. 1090, Q 1, at 3700; see also Alexander, supru note 1, at 1869.
In 1991, by the enactment of Senate Bii 1149, the legislature added the present third sentence to section 71.04(e): “The total fees relating to the filing of and service of notice of an application for a protective order, including fees under Section 71.07 of this code, may not exceed S36 under any circumstances.” On its face, this sentence clearly prohibits a clerk from assessing a total fee larger than S36 under mry circmstances. The IegkWve history does not show any contrary intent. In hearings on Senate Bii 1149, the author, Senator Brooks, underlined the plain language of the amendment by stating that the purpose of the amendment was to “clarify the previous legislative intent that the iihng fee [for an application] for protective order shah not exceed S16 and rhe fee for service skdnot exceed820 under any circumstances.” Hearings on S.B. 1149 Before the Senate Comm. on Health Br Human Services, 72d Leg. (Apr. 16, 1991) (statement of Senator Brooka, author) (tape available from Senate Staff Services) (emphasis added). Conse- quently, we wnstrue section 71.04(e) to absolutely prohibit a clerk f?om charghrg an applicant for protective order under chapter 71 of the Family Code more than $36, regardless of the number of respondents who must be served or the number of times service must be attempted before the server actually delivers the service.
Your second question wncerns affidavits of inabiity to pay costs. As quoted above, section 71.04(e) permits “[a]n applicant who is unable to pay the Sling fee and other costs as provided in Section 71.07 of this wde [to] tile with the wtut an affidavit of inability to pay under the procedures, to the extent that they apply, provided by the Texas
%a 1987 the k8islatm amended section 71.04(d) ofthe Family Code to provide in perthem part as follows (italic5 indicate kngua8e the legiskture added in 1987):
Thef&forfilinganapplicationkS16andklokpeidtotbcdcrLodtbc court in whieb tbe applieaticm is filed. Except ap proviokd in Section 71.07 of this co& the appricrmt may not be awesed any other fees, costr, chqes, or expenses by the clerk of the court or my other public oflcial in connection with the opplicotion.
~escc11987.7oth~,cb.1090,~1,at3700. Bythesmebill,thekgkk~addedtosedion71.O7 of tk Family Code !§ion (c), which read essentially as atkn 71.07(i) does cmxntly. !kc disats- sko spa page 2 @noting Fam Ccdc p 71.07(i)).
Rules of Civil Procedure.” Rule 145 of the Texas Rules of Civil Procedure provides in pertinent part a8 follows:
In lieu of Sling security for costs of an original action. a party who is unable to afford said costs shall file an atlidavit as herein described. A “party who is unable to afford costs” is defined as a person who is presently receiving a govermnental entitlement baaed on indigency or any other person who has no ability to pay costs. Said atlidavit, and the party’s action, shall be processed by the clerk in the nuumer prescribed by this rule.
. . . . 2. Affidavit The affidavit shall contain complete information- as to the party’s identity, nature and amount of govermnental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse’s income if available to the party, property owned (other than homestead), cash or checking accom dependents, debts, and monthly expenses.
You contend that, because rule 145 defines a “party who is unable to afford costs” as a person who is presently receiving a government entitlement based on indigency, an applicant for protective order who is filing an a&lavit of inability to pay under section 71.04(e) of the Family Code need only state in the atlidavit his or her identity and the fact that he or she is receiving a government entitlement based on indigency. You believe that the remainder of the information specified in rule 145 is “wholly unnecemary.” We are uncertain whether, by the phrase “wholly unnecessary,” you mean not required or irrelevant. Because rule 145 explicitly requires an aftiant to provide complete information mgarding each of the items listed in paragraph 2 of the rule (thus making such information necessary), we need not determine here whether the information specified in paragraph 2, other than a statement that the atlisnt is the recipient of a government entitlement baaed on indigency, is relevant to determining whether such a person is unable to afford the costs of an original action.6 Cj Cronen v. Smith, 812 S.W.2d 69,75 (‘Tex. App.-Houston [lst Disk] 1991, no writ) (Mirabal, J., dissenting) (atEant receiving government entitlement based on indigency is as matter of law “party who is unable to atford costs” within wntext of rule 145).
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HonorableDavidMotley - Page 6 (~~-298)
SUMMARY Ptumant to section 71.04(e) of the Family Code, a clerk must not charge an applicant for a protective order under chapter 71 of the Family Code more- than S36 total for tiling the application and serving notice of the application, regardless of the number of respondents who must be served or the number of times service must be attempted before the server actually delivers the service. Although an applicant for protective order is presently receiving a governmental entitJement based on indigency, the applicant must, if he or she claims to be unable to pay the filing fee and other costs as provided in section 71.07 of the Family Code, Sle with the clerk an a5davit of htabiity to pay in which the applicant provides information regardii all items paragraph two of Texas Rule of Civil Prowdure 145 speciiies.
DAN MORALES Attorney General of Texas JORGE VEGA
J%st Assistant Attorney General
DREWDURHAM
Deputy Attorney General for Criminal Justice
JAVIER AGUILAR
Special Assistant Attorney Genera)
RENEAHIcKs
State Solicitor
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
l4dtantAttomeyGeneral
p. 1597