Case Information

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The Attorney General of Texas August 23. 1985 JIM MATTOX

Attorney General Overrules in part JM-168 Ronorabla Henry WadI, Opinion Ho. JM-346 Supreme Court Building Criminal District A:torney P. 0. Box 12548 Condemnation Sectio!l Re: Fees to be charged Austln, TX. 78711-2548 filing certain instruments in 512,475.2501 Services Building Telex 9101874-1367 Dallas, Texas 75202 probate court Telecooier 512I475.02’36

Dear Mr. Wade: 714 Jackson, Suite 700 Dallas, TX. 75202-4506

You request the opinion of this office concerning fees, if any, 2141742-0944 to be charged by county clerks for the filing of pleadings and legal

instruments by defcrtdants in adverse actions in the probate courts, 4824 Alberta Ave., Suite 160 El Paso, TX. 799052793 ^{[91515333464]} or responses to requests of Attorney General. Opinion JM-168 (1984) in regard to the applica- such as the defenduut's original answer, an*wer* to interrogatories, for admissions. You also seek clarification

bility of subsectixl (b)(i), paragraph B(l), section 1, of article 3930(b), V.T.C.S. We conclude that the state statutes do not ,001 Texas. Suite 700 authorize any fees t.o be charged by county clerks in adverse actions Houston, TX. 77002-3111 in the probate ccurt, except the fee to be paid by the party 713/223-5886 initiating the adverse action as authorized by article 3930(b), section 1, paragra~n B(l)(c). 1306 Broadway, Suite 312 Lubbock, TX. 79401.3479 Since 1967, a::ticle 3930(b), V.T.C.S., has prescribed the fees 8061747-5238 which clerks of the county courts are authorized to charge for court-

related services pc,rformed by the clerks. In section 1, paragraph A 4303 N. Tenth, Suite B of that act provides for fees for ordinary civil cases on the county McAHen, TX. 78501-1685 civil court dockets. Paragraph C relates to services of the clerk in 5121882-4547 issuing and recor<,lng the return of documents where no cause is

pending. Paragraph D has to do with issuing certificates, certified 200 Main Plaza. Suite 400 copies, and other documents on which there is no return to be San Antonio. TX. 78205-2797 recorded. Paragraph E applies to letters testamentary and similar 512/2254191 instruments, and Paragraph F applies to the filing and keeping of

wills for safekeepjng. Section 1, paragraph B, which prescribes fees for probate court do#zkets, provides, in pertinent part, that An Equal Opportunityl Attirmative Action Employer

(1) I've each cause or action, or docket in Probate Courts: . . . .

(a) For each original cause or action in a Probate ?&, a fee to be due and payable and to be paid 1)~ the party or parties starting or initiating said cause or estate action. . . .

Honorable Henry Wade - Page Z (JM-346)

(I) For probat:ing will vith independent executor; for admtuistration with will attached, for administration of an estate, for guardianship or receivership of an estate, for muniment of title, a fee from the starting or initiating such cause of action uztil either an order approving the inventory and $praisement is filed or until the inheritance oF estate tax receipt is filed, whichever first oc&s: a fee of...........$35.00 -- . . . (b) For each Jrobate docket remaining open after the filing of the order approving the inventory and appraisement or after the filing of the inheritance OI? estate tax receipt, whichever occurs first, &a following fees shall be paid. . . .

(I) For filing, or filing and recording, of each instrument of writing, legal document, paper or record in an open Probate Docket after the filing of the order approving the inventory and appraisement or s:Eter the filing of the tax receipt, whichever :Ls applicable, a fee: (1) For the first page of.............. $3.00 (2) For each p,%ge or part of a page thereafter of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2.00 (ii) For approving and recording each bond relating only to an open Probate Docket after the filing of the order approving the inventory and appraisement or after the filing of the tax re- ceipt, whichever is applicable, a fee of... $3.00 (iii) For administering each oath relating to an open Probate P,ccket after the filing of the order approving the inventory and appraisement or after the filing cf the tax receipt, whichever is applicable, a fee ,~f....................... $2.00 (c) For each ad-verse action or contest, other than the filing of II claim against an estate, in a cause or docket ilr a probate court, a fee to= due and payable ant3 to be paid by the party or Parties starting o:c initiating such adverse action or contest, but e&uding other items listed in *3 Ronorable Henry Wade - Page :I (JM-346)

Paragraphs A, B, C, and D of this Section 1, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $25.00 (d) For filing and entering each claim against an estate in the cLsim docket, a fee to be paid by claimant at the -time of filing such claim, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2.00 (Emphasis added).

Until amended in 1983, paragraph B(l)(a) provided for a fee for each original cause or action for a period of one year from the starting or initiating of th'e cause of action instead of a fee from the starting or initiating of the cause of action until either an order approving the inventory and appraisement is filed or until the inheritance or estate tan receipt is filed. Likewise, prior to 1983, paragraph B(l)(b) provided fees for each probate docket remaining open after its first anniversary date instead of a fee for each docket remaining open after the fiL:Lng of the order approving the inventory and appraisement or after the filing of the inheritance or estate tax receipt.

The usual proceedings within the jurisdiction of the probate courts may remain pending Eior lengthy periods of time. It is our opinion that the legislatur: intended the reference to inventory and appraisement and to inheritance or estate tax receipt as a determina- tion of the period of time during which services by the county clerk are compensated by the lump sum fee for the starting of the original cause or estate action. The amendment in 1983 ties that determination to key points in the probate process in place of the arbitrary one- year period. See Bill Anal]%16 to S. B. No. 663, 68th Leg., prepared for Rouse CommEee on the .Judiciary, filed in Bill File to S. B. No. 663, Legislative Reference Iibrary. We conclude that fees provided by paragraph B(l)(b) apply to services which would be covered by the provisions of paragraph B(l)(a) were it not that the services occur after the filing of the ordr,r approving the inventory and appraisement or after the filing of the tar receipt. On the other hand, fees provided by paragraph B(l):(:) apply to adverse actions or contests other than claims against an estate , which are not themselves probate matters, but are filed in probate court because they are ancillary or incident to a cause in the ,probate court. Fees provided by paragraph B(l)(d) apply to claims against an estate.

Rence, we conclude ths.t it is the intention of the legislature that it is paragraph B(l)(c), not paragraph B(l)(b), that applies to the adverse actions about whf.ch you inquire.

It has long been estab3.ished that unless a fee is provided by law for an official service required to be performed and the amount is *4 Honorable Renry Wade - Page 4 (JM-346)

fixed by law, a fee may not be charged. Furthermore, fee statutes are strictly construed, and fees are not pelmitted by implication.

The courts of 1311s state have adopted the rule construing strictly those statutes prescribing ,fees for public officers and against permitting such fees by implication. No officer is permitted to collect fees ot commissions unless the same are provided for and the amount thereof declared by law. This is true, notwithstanding such officer may be required by law to perform specific services for which no compensation is provided.

HcCalla v. City of Rockdale,, 246 S.W. 654, 655 (Tex. 1922). See also Moore v. Sheouard. 192 S.W. Moore v. Sheppard, 192 S.W.:!d 559, 561 (Tex. 1946); Nueces County V. nty V. t, 57 Tex. Currington, 162 S.W.2d 687, 1688 (Tex. 1942); State v. Moore, 57 Tex. Currington 307, 321 (1882); Attorney General Opinions MW-104 (1979); R-796 307, (1979); R-796 (1976); b-o, \lvo=,i Y-Y=, i'v+v,. (1976); S-87 (1953); V-957 (1949).

Paragraph B(l)(c) expressly requires a $25.00 fee to be paid by the party initiating an advlarse action' or contest in a cause in a probate court. We think that neither paragraph B(l)(c) nor any other statutory provision of whi& we are aware provides for a fee other than the initial $25.00 fee in such an adverse action. In Rodeheaver v. Alridge, 601 S.W.2d 51. 54 (Tex. Civ. App. - Houston [lst Dist.] 1980, writ ref'd n.r.e.), the court stated that

A reading of .kcticle 3930(b) shows that the $25.00 fee which the county clerk is to collect for each filed aiverse action or contest covers not only the clerk's services for the initial filing of the act!.on but also many other services which will accrue during the processing of the suit. Thus, the statutory fee is, in effect, an advance payment for the cost of services which have not been rendered at the time the fee is collected.

In Attorney General Op,lnion JM-168, we stated that supplemental instruments filed in conneci:ion with an ancillary probate action are subject to the fees prescribed by paragraph B(l)(b)(i) of article 3930(b) if the instruments are filed after the inventory and appraise- ment have been approved or after the inheritance or estate tax receipt has been filed. We now con'zlude that, other than the initial $25.00 fee, no fees are authorize3 for the filing of pleadings and legal instruments in adverse and ancillary actions in the probate courts. To the extent that Attorney G'eneral Opinion JM-168 conflicts with this conclusion, it is overruled.

I . ,

Ronorable Henry Wade - Page 5 (JR-3-346)

SUMMARY County clerks s,re authorized to charge an initial fee of $25.00 to be paid by the party initiating an adverse action or contest in a probate court. An additional fee is not authorized for the filing of pleadings and legal instruments by the defendants in adverse actions in a probate court.

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Attorney General of Texas TOM GREEN

First Assistant Attorney General

DAVID R. RICRARDS

Executive Assistant Attorney General

ROBERT GRAY

Special Assistant Attorney Gsrueral

RICK GILPIN

Chairman, Opinion Committee

Prepared by Nancy Sutton

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Rick Gilpin, Chairman

Jon Bible

Colin Carl

Susan Garrison

Tony Guillory

Jim Moellinger

Jennifer Riggs

Nancy Sutton