               THE         ATTORNEY                  GENERAL
                                   OF   TEXAS




The Honorable Joe Resweber                         Opinion   No.   H-43
County Attorney
Harris County Courthouse                           Re:       Is the County Clerk
Houston,  Texas 77002                                        authorized to collect
                                                             fees for filing papers
                                                             for discovery   proceed-
                                                             ings in aid of enforce-
                                                             ment of a final judgment
                                                             pursuant to Rule 621a of
                                                             the Texas Rules of Civil
Dear   Mr.   Resweber:                                       Procedures?

       Your letter requesting  our opinion asks whether the County Clerk
is authorized to collect fees for filing papers for discovery proceedings
in aid of the enforcement.of  a final judgment pursuant to Rule 621a of
the Texas Rules of Civil Procedure.

       Rules   62la,   effective   only January    1, 1971, authorizes    the holder
of a judgment to maintain discovery    proceedings   in the court in the same
suit in which the judgment was rendered for the purpose of obtaining
information  to aid in the enforcement   of the judgment.    Nothing is said
about fees.

       However,   in 1967 the Legislature  adopted Article  3930 (b) Vernon’s
Texas Civil Statutes (Acts 1967, 60th Leg.,     p. 1785, Ch. 680).   The
statute, in appropriate   paragraphs A, B, C, D, E and F, covers six differ-
ent situations in which fees are collectible.

        We are concerned       with paragraphs     A and C.

       Paragraph A, generally   having to do with fees for county civilcourt
dockets,  by its terms, applies to proceedings   “while the docket is still
open:”




                                          p. 173
 The Honorable     Joe Resweber,      page 2    (H-43)




                       “For each cause or action,          or docket in
               County Civil Courts; for filing, or filing and
               registering.     or filing and recording,        and for
               docketing and including taxing costs for each
               and all applications,       complaints,     petitions,
               returns,    documents,      papers,    legal instruments,
               records and/or      oroceedings;      for issuing,     includ-
               ing the recording       of the return thereon,      each and
               all citations,    notices,    subpoenas,     commissions
               to take depositions,       executions while the docket
               is still open, garnishments         before judgments,
               orders,    writs,   processes,      or any and all other
               instruments,      documents or papers authorized,
               permitted or required to be issued by said county
               clerk or said clerk of county courts on which a
               return must be recorded; for all attendance6
               which a return must be recorded;             for all attend-
               antes in court as clerk of court; for impaneling
               a jury; for swearing witnesses;           for approving
               bonds involved in court actions,           for administering
                oaths; and for all other clerical         duties in connection
                with such county civil court docket: . . . ”

        It requires a fee of $10.00 in most suits “which fee is to be paid
but one time in each cause or docket, or suit, and which fee excludes the
items listed in Paragraph   B, C, D and E of this Section 1: . . . . ”

         Paragraph    B provides    for fees   for probate   court dockets.      Para-
graph   C is as follows:

                      “Where no cause is pending, as is contem-
               plated in Section 1, Paragraphs     A and B hereof,
               the clerk shall charge as follows for the hereinafter
               listed services,  for issuing (including recording     of
               the returns thereon),   each citation,  notice,  commis-
               sion to take depositions,   execution,  order,  writ,
               process,   or any other instrument,    document,    or
               paper authorized,    permitted or required to be issued
               by said county clerk or said clerk of county courts
               on which a return must be recorded:




                                           p. 174
The Honorable    Joe Rerweber,     page 3 (H-.43)




                      “(i) For irsuing each such instrument,
                document,    or paper, including the original and
                one copy and the recording    of the return, a fee,
                to be paid at the time each order is placed,    of
                . . . $3.00.    . . .”

        Paragraph   D has to do with issuing certificates,     certified copies,
etc.  Paragraph   E applies to Letters  Testamentary,      Letters of Guardianship
and similar  instruments.    Subparagraph      F applies   to the filing and keeping
of wills held for safekeeping.

        As we construe Article      3930(b),   if at the time the provisions of Rule
621a are invoked the original cause of action is still pending upon the docket
of the court,  the successful   party may file or require the issuance of what-
ever papers are necessary      under Rule 621a without incurring liability for
any additional fee.   On the other hand, if there is no cause pending and the
proceeding    must be brought under Paragraph C, then the Clerk is entitled
to a charge of $3.00 for issuing each instrument,          document,  or paper, but
not for merely filing the same.       If, a’s may be true in discovery    proceedings
under the amended rules,      the Clerk is not called upon to issue any instru-
ments,   we see no authority for him to charge a fee.

        It is our construction     of Articles 3930 and 3930A-1 that they apply
only to the non-court    aspects of the functions of the County Clerk’s office
and that eubsection    (9) of Article   3930 does not authorize the Clerk to set
a fee for filing instruments    in court proceedings.

                                   SUMMARY

                       Article  393013, Vernon’s    Texas Civil Statutes,
                governs fees to be charged in a proceeding brought
                under Rule 621a of the Texas Rules of Civil Procedure.
                If the action is still pending upon the docket of the
                court at the time such proceedings       are instituted,  they
                fall within the one time filing fee and no additional fee
                is to be charged.     If no action is pending at the time
                those proceedings     are instituted,  the County Clerk




                                         p. 175
.   1




    The Honorable    Joe Resweber,     page 4 (H-43)




                    is entitled to a fee of $3.00 for each instrument
                    he issues,   but is not entitled to charge a fee for
                    the mere filing of instruments     prepared by otherr.

                                             Very   truly yours,




                                             JOHN L. HILL
                                             Attorney General      of Texas


    APPRgVED:
                                     r---Y




    &$iYi!f
        DAVID M. KENDALL,      Chairman
        Opinion Committee




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