                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT



                                              August lo,2004



The Honorable Mike Stafford                            Gpinion No. GA-0231
Harris County Attorney
1019 Congress, 15th Floor                              Re: Whether the family protection fee, which
Houston, Texas 77002                                   section 5 1.961 of the Government Code authorizes
                                                       a commissioners court to adopt, violates the open
                                                       courts provision, article I, section 13 of the Texas
                                                       Constitution    (RQ-0166-GA)


Dear Mr. Stafford:

        You ask whether the family protection fee, which section 5 1.961 of the Government Code
authorizes a commissioners court to adopt, violates the open courts provision, article I, section 13
of the Texas Constitution.’

         Section 5 1.961 of the Government Code, which the legislature adopted in 2003, see Act of
June 1, 2003, 78th Leg., R.S., ch. 198, 5 2.165(a), 2003 Tex. Gen. Laws 611, 711, authorizes a
county commissioners court to adopt a family protection fee, “in an amount not to exceed $15,” that
the district or county clerk must collect “at the time a suit for dissolution of a marriage under Chapter
6, Family Code, is tiled.” TEX. GOV’T CODE ANN. 5 51.961(a)-(b) (Vernon Supp. 2004). But see
id. § 51.961(c) (prohibiting a clerk from collecting the family protection fee from certain persons).
The fee is to be deposited into a family protection account in the county treasury and used to fund
nonprofit organizations that work in the area of family violence:

                (d) The clerk shall pay a fee collected under this section to the appropriate
        officer of the county in which the suit is filed for deposit in the county treasury to the
        credit of the family protection account.           The account may be used by the
        commissioners court of the county only to fund a service provider located in that
        county or an adjacent county. The commissioners court may provide funding to a
        nonprofit organization that provides services described by Subsection (e).

               (e) A service provider who received funds under Subsection(d) may provide
        family violence prevention, intervention, mental health, counseling, legal, and



         ‘Letter from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Jan. 14,2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us).
The Honorable Mike Stafford       - Page 2        (GA-023 1)




        marriage preservation services to families that are at risk of experiencing    or that have
        experienced family violence or the abuse or neglect of a child.

Id. 5 5 1.961(d)-(e). For the purposes of section 5 1.961, the term “family violence” includes intra-
household assaults or threats, child abuse, and dating violence:

                 (1) an act by a member of a family or household against another member of
        the family or household that is intended to result in physical harm, bodily injury,
        assault, or sexual assault or that is a threat that reasonably places the member in fear
        of imminent physical harm, bodily injury, assault, or sexual assault, but does not
        include defensive measures to protect oneself;

               (2) abuse         by a member of a family or household       toward a child of the
        family or household;    or

                 (3) dating violence    .

TEX.FAM. CODE ANN. 5 71.004 (Vernon 2002); see id. 5 71.0021 (defining the term “dating
                                         (Vemon Supp. 2004) (defining the term “family
violence”); TEX.GOV’T CODE ANN. 9 51.961(f)
violence” as Family Code section 71.004 defines it).

        Article I, section 13 of the Texas Constitution,    the “open courts provision,” provides:

                Excessive bail shall not be required, nor excessive fines imposed, nor cruel
        or unusual punishment inflicted. AN courts shall be open, and evelyperson for an
        injmy done him, in his lands, goods, person or reputation, shall have remedy by due
        course of law.

TEX.CONST.art. I, 5 13 (emphasis added). “The open courts provision specifically guarantees all
litigants the right to” redress their grievances in court. LeCroy v. Ha&on, 713 S.W.2d 335, 341
(Tex. 1986). The legislature maynot “arbitrarilyorunreasonably       interfere” with this right. Id. You
ask in particular about article I, section 13’s second sentence, italicized above.

          A 1986 decision of the Texas Supreme Court, LeCroy Y. Ha&on, construes the open courts
 provision to prohibit the use of tiling fee revenues that are used for non-court-related programs. See
 id. at 342. The LeCroy court found unconstitutional a statute that allocated $40 of a district court’s
 tiling fee to the state’s general revenues. See id. In the court’s view, the fee was a “general revenue
 tax on the right to litigate” because it went to statewide programs other than the judiciary. Id.
 According to the court, filing fees “are usually constitutional,” but “filing fees that go to state general
 revenues-in      other words taxes on the right to litigate that pay for other programs besides the
judiciary-are      unreasonable impositions on the state constitutional right of access to the courts.”
 Id. at 342 (emphasis added).

        Similarly, in 1994 the Dallas court of appeals, in Dallas County Y. Sweitzer, invalidated two
fees under the open courts provision. See Dallas County v. Sweitzer, 881 S.W.2d757,766(Tex.
App.-Dallas 1994, writ denied). The court first found unconstitutional      a sheriff fee, collected in
The Honorable Mike Stafford     - Page 3        (GA-0231)




accordance with section 118.131 of the Local Government Code, that the county placed in the
county’s general fund. See id.; see also TEX. LOC.GOV’TCODE ANN. 5 118.131(a) (Vernon 1999)
(authorizing a commissioners court to “set reasonable fees” for the sheriffs office’s services).
Following LeCroy, the court concluded that a fee deposited in the general revenue fund could be
spent on county programs other than the judiciary. Sweitzer, 881 S.W.2d at 765. The court also
found unconstitutional    section 5 1.601 of the Government Code, which directed certain clerks of
court to collect a court reporter fee and to deposit it into the county’s general fund. Id. at 766; see
also Act ofMay 18,1989,71st Leg., R.S., ch. 1080,s 6,1989 Tex. Gen. Laws 4354,4356, amended
by Act of May 10,1995,74th       Leg., R.S., ch. 144, $2,1995 Tex. Gen. Laws 992,992.

         Texas courts have not had the opportunity to consider the constitutionality of the family
protection fee under article I, section 13’s open courts provision. We are required to presume that
a statute is constitutional. See TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998); Nootsie, Ltd.
v. Williamson County Appraisal Dist., 925 S.W.2d 659,662 (Tex. 1996). Moreover, as the Texas
Supreme Court stated in LeCroy, “[fjiling fees      are usually constitutional.” LeCroy, 713 S.W.2d
at 342. We presume, therefore, that the family protection fee is a constitutional filing fee. In
accordance with the supreme court’s construction ofthe open courts provision in LeCroy, however,
the family protection fee may be expended only for court-related purposes.          See id.; see also
Sweitzer, 881 S.W.2d at 765.

         We do not believe the fact that the family protection fees are deposited “in the county
treasury to the credit of the family protection account,” see TEX.GOV’T CODE ANN. 5 51.961(d)
(vemon Supp. 2004), is sufficient grounds for distinguishing LeCroy and for concluding that uses
of the family protection fee need not be examined for their relationship to court-related purposes.
LeCroy indicates that a filing fee that is deposited into a general revenue fund is per se
unconstitutional, but that conclusion does not mean that a filing fee deposited into a special account
isper se constitutional.  See LeCroy, 713 S.W.2d at 342. Indeed, LeCroy premised its conclusion
in part on Cracker v. Finley, a 1984 decision of the Illinois Supreme Court that considered a fee
closely analogous to the fee at issue here: a fee, deposited into a special fund, to be used “to fund
shelters and other services for victims of domestic violence in Illinois.” Cracker v. Finley, 459
N.E.2d 1346,1348-49 (Ill. 1984); seeLeCroy, 713 S.W.2dat 342-43. The Crockercourtdetermined
that the purposes for which the fee revenues could be used were not court related. See Cracker, 459
N.E.2d at 1351.

          Courts in two other states have considered similar fees under analogous open courts
provisions, and both have determined that the fees may be used for unconstitutional purposes. In
Cracker, discussed briefly above, the Illinois Supreme Court expressly rejected arguments that the
use of a filing fee for domestic violence programs “enable[s] victims to use the court system more
efficiently.    . . The moral and emotional support provided enhance some victims’ resolve to obtain
relief in the courts, while preventing others from filing cases that they are not yet ready to pursue.”
Cracker, 459 N.E.2d at 135 1. And, in a 1997 opinion the Louisiana Supreme Court, relying in part
on LeCroy, invalidated a statute imposing a court filing fee in certain city courts “to benefit [Safety
Net for Abused Persons, or “SNAP”], a domestic violence program and shelter serving Iberia
Parish.” SafetyNetforAbusedPersons         v. Segura, 692 So. 2d 1038,1039 (La. 1997). Althoughthe
The Honorable Mike Stafford     - Page 4        (GA-0231)




fee was to be deposited in a special fund to benefit SNAP, the court found that the statute violated
“the right of access to the courts      . because its purpose-to  fund domestic abuse services-is
unrelated to the administration ofjustice.” Id. at 1043. Evaluating SNAP in particular, the court
 stated that the services provided by SNAP, which included shelter, counseling, and information for
 abuse victims, “have no logical connection to the judicial system.” Id. at 1044. Further, the court
noted that “SNAP is not a part of the judicial branch, it serves no judicial or even quasi-judicial
 function, it is not a program administered by the judiciary, and it is not a link in the chain of the
justice system.” Id. at 1045.

         Two state courts have upheld fees similar to the family protection fee, but we are unable to
rely on them. See Villars v. Provo, 440 N.W.2d 160, 164 (Minn. App. 1989); Browning v. Corbett,
734 P.2d 1030,1033 (Ariz. App. 1986). In 1989 the Minnesota court of appeals concluded, without
analysis, that a filing fee to fund programs serving battered women and displaced homemakers did
not violate the state constitutional requirement that “justice be obtained ‘freely’ and ‘without
purchase.“’ Villars, 440 N.W.2d at 164 (quoting MINN. CONST.art. I, 5 8). Because the Minnesota
court provided no reasons, we cannot evaluate its application in Texas. In a 1986 case the Arizona
court of appeals upheld a statute requiring the parties to a marriage dissolution action to pay a court
tiling fee “which is distributed between the domestic violence shelter fund and the child abuse
prevention and treatment fund.” Browning, 734 P.2d at 103 1. But the court noted that the Arizona
Constitution contains no open courts provision, see id. at 1033, and for this reason the case is not
persuasive in Texas, whose constitution has an open courts provision, see TEX.CONST.art.        I,$ 13.

         Given LeCroy and the Illinois and Louisiana cases specifically addressing the use of filing
fee revenues for family-violence purposes, we conclude that Government Code section 51.961 is
constitutional, but that family protection fee revenues may be used for court-related purposes only.
Certainly, many of the uses to which family protection fee revenues may be put under section 5 1.961
are court related and therefore consistent with the open courts provision. Section 5 1.961(e) lists all
of the following as permissible uses for fee revenues: “family violence prevention, intervention,
mental health, counseling, legal, and marriage preservation services.” TEX.GOV'T CODE ANN. $
51.961(e) (Vernon Supp. 2004). As the Family Violence Resource Project noted in a report to the
Texas State Bar, the legal system often is involved in family violence matters: “providing protection
to victims of family violence, prosecuting, punishing and rehabilitating perpetrators of family
violence, and helping to develop more effective means of responding to the problem of family
violence.” FAMILYVIOLENCERESOURCEPROJECT,APROPOSALTOTHESTATEBAROFTEXAS
BOARLIOFDIRECTORS        atl(2000).

         We cannot say as a matter of law that all possible uses may be court related, however.
Whether any particular use of family protection fee revenues is court related is a question requiring
the resolution of fact questions, and is, therefore, ultimately beyond this office’s authority. See Tex.
Att’y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the
opinion process). A county commissioners          court, which has sole authority to distribute the fee
revenues, must determine whether aparticularproposed          use is court related. See TEX.GOV'TCODE
ANN. 9 51.961(d) (Vernon Supp. 2004).
    The Honorable Mike Stafford    - Page 5       (GA-0231)




                                           SUMMARY

                            To avoid contravening the open courts provision, article I,
                   section 13 of the Texas Constitution, revenues from the family
                   protection fee, which a county may adopt under section 5 1.96 1 of the
                   Government Code, may be used only for court-related purposes.
                   Many uses that are consistent with those listed in section 51.961,
                   “family violence prevention, intervention, mental health, counseling,
                   legal, and marriage preservation services,” may be found to be court
                   related. The county commissioners court must determine whether
                   any particular use of family protection fee revenues is court related,
                   however.




-   BARRY R. MCBEE
    First Assistant Attorney General

    DON R. WILLETT
    Deputy Attorney General for Legal Counsel

    NANCY S. FULLER
    Chair, Opinion Committee

    Kymberly K. Oltrogge
    Assistant Attorney General, Opinion Committee
