Case Information

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The Attorney General of Texas

February 22. 1982 MARK WHITE

Attorney General

Honorable Henry Wade Opinion No. Mw-447 sq%me 51:1475.2:c1 TeieCOEle, ^[70191] P. 3 Box 12548 :i~tin. 91n,i74-:x7 TX. Coil?! Building 5:2;475-:265 ia711. ^[2548] Dallas, Texa’s Criminal District Attorney Sixth Floor, Records Building 75202 Re: Whether state 3912(e), V.T.C.S. from filing fees under artic?c is exempt

Dear Mr. Wade: 2: 214!742aa4C :6C.7 ias. TX lain ST.. Suite 7521!.4709 ^[1400] V.T.C.S.,

You have exempts requested the state of Texas our opinion from paying as to whether 39i?c-, 2824 Alber!a El ?asc. TX. 78405.2793 9151533.3464 Ave.. suite ^[160] 3912e provides Section 1. No district officer part: shall be paid State of Texas any~ fees or commissions for HOUS!O”, 713/65&os6 12.x csiias TX. 770026986 Ave.. Sulle ^[202] the provisions any service performed by him;... the payment of costs this Section In civil shall not affect provided... or eminent

domain proceedings by the State....

806 Broadway. Lubbock, 8061747.5235 TX, 79401.3479 Suite ^[312] . . . .

Sec. 19. Provisions this Section ~309 Pd. Tenth. MCAIICP. ‘,l:i6R24547 TX. 78531-1685 Sule ^[6] population apply thousand to and control inhabitants.... in excess of one hundred and ninety... in each county... having L 200 Main Plaza. Suite San An,onio. 512.225.4191 TX. 78205.2797 . . . . (j) Each district, county, and precinct officer who shall be compensated on a salary basis continue to charge for the benefit Officers’ Salary Fund of his office in this Section, all fees and commissions whfch he is now or hereafter may be authorized to charge and collect from the State of Texas services performed by him in civil proceedings.... 2. 1540 *2 Honorable Hcnrv Glade - Page 2 (~~-447)

Tn Attorney General Opinion W!&62g (1959). this office observed that:

Tt is noted that the prohibitions contained in Sections 1 and 3 of Article 3912e...

the payment of fees or commissions by the State do not apply to the payment of costs State where the fees constitute a earned part of the cost assessed the State in a Therefore; such cost be particular case. must paid bv the State as provided law rather. than by (Emphasis as a fee to the individuai officer. added). be2 l?i (1967);

See 2152 hrtcrncy G’eneral Opinions {,".;-65i( (!95?); i..L:-5':; Compare Attorney General Opinion bi-163 (1567) (1558); C-807 (1939). (filing in criminal cases).

To answer your question, we must determine whether the to which you refer “costs” of ci~vll cases within meaning of section 3912e. If the fees do, the state of Texas is not exempt from liability for payment of such fees. Attorney General Opinion w-628 (1959). 3927, V.T.C.S.. provides, part,

The clerks the district courts receive the followjng for their services: . . . including appeals For each suit filed, courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 3i3.X

mfrrior In Phillins v. Wertz, 579 S.W.2d 279 (Tex. Civ. App. - 3s112s 1974, writ ref’d n.r.e.). the court stated as follows:

The general rule in Texas is that expenses incurred in prosecuting or dofending a suit are not recoverable as CORCS or damages uniess recovery for such items in expressly ior bv statute recoverable under eauitablc principles.... lists the district clerk tax as costs.. . .

The court concluded that because certified copies of deeds are not among the items enumerated in articles 3927 or 3927b (since repealed), the costs involved in obtaining such copies could not be taxed ns (MW-447)

.I the appellees in that case. See also Attorney General "Costs" Opinion MW-308 (1981) (fee recording abstract judgment in county records not among costs to be taxed on initial filing delinquent tax suit).

Unlike fee involved in the Phillips case, fees are among the listed in article 3927 which may be taxed as costs. We believe it follows, therefore, that such "costs" within the meaning of section 3912r. The state of Texas therefore not exempt from liability for payment of such in civil filed with district clerks.

We have r.ot overlooked 39??a, V.T.C.S., which providzc 39271 shall not be construed as amending repealing any existing law

exemption of the State of Texas or any political subdivision the State of Texas from liability for costs or deposits therefor.

This statute refers to laws which specifically exempt the state from liability for payment of certain costs. See, e.g.. V.T.C.S. art. 7297 (state exempt from payment of costs "growing out of" suit to recover delinquent taxes); see Prop. Tax Code 533.49. Article 3912e is not such a statute. Itdoes not exempt the state liability payment of "costs in 21~11 cases."

SUMMARY 3912e. V.T.C.S., does not exempt the state of Texas from having to pay filing in civil

Very truly yours, n -MARK WHITE Attorney General of Texas.

JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E; GRAY III

Executive Assistant Attorney General

Prepared by Jon Bible

Assistant Attorney General *4 (Mw-447)

APPROVED:

OPINION COMHITTEE

Susan L. Garrison, Chairman

Jon Bible

Robert W. Gauss

Rick Gilpin

Jim Moellinger

D. 1543