           THE     ATTORNEY    GENERAL
                      OF TEXAS
                        July 1, 1987




Honorable Gary E. Kersey           Opinion No. JM-735
Kerr County Attorney
317 Earl Garrett                   Re:   Whether a district clerk may
Kerrville, Texas   78028           require a deposit for court costs
                                   in an application for a protective
                                   order under section 71.04 of the
                                   Family Code

Dear Mr. Kersey:

     You ask whether a district or county clerk may require a person
applying for a protective order pursuant to section 71.04 of,the Texas
Family Code to post a deposit for court costs as a condition of filing
the application. We understand you to ask only about the district or
county clerk's duty to file applications for protective orders and not
the clerk's duty to perform any other services. In bur opinion,
neither the district clerk nor the county clerk may place such a
condition on the filing of an application for a~protective order.

     The Family Code offers protection in the form of a protective
order to family or household members from the violent acts or threats
of violence of another member of the family or household. Section
71.04(b) of the code allows one or more members of a family or
household to apply for an order restraining another member of the
family or household from committing further acts of "family violence."
It also authorizes a prosecuting attorney to apply for a protective
order for the protection of any person alleged to be a victim of
family violence. "Family violence" is defined as the intentional use
or threat of physical force against a member of a family or household
by another member of the family or household, but it does not include
the reasonable discipline of a child by a person having that duty.
Family Code §7l..Ol(b)(3).

     Proceedings under chapter 71 of the Family Code are commenced by
the filing of the application for a protective order with the clerk of
the court. Id. 571.02. Section 71.04(d) sets the fee for'filing an
application:

             The fee for filing an application is $16 and is
          to be paid to the clerk of the court in which the
          application is filed. If the applicant files a
          sworn statement that the applicant is unable to
          pay the filing fee and other court costs, the



                                 p. 3420
Honorable Gary E. Kersey - Page 2 (m-735)




         court, on a finding that the statement is true,
         shall waive the fee and costs that may be due or
         become due from the applicant. A hearing on the
         issue of the waiver of the fee and cost, if
         requested by a party or if required by the court.
         must be held within three days of the request by a
         party or of the court's requirement. (Emphasis
         added).

You write that the current practice in some clerks' offices is "to
require all the normal court costs in civil cases to be deposited
before a [plrotective [o]rder application can be filed and any action
taken." Essentially, you question the authority of the district or
county clerk to impose such a requirement on applicants for a
protective order.

     As a general rule, a public officer has no authority to perform
acts not authorized or required of him by law. Duncan v. State, 67
S.W. 903 (Tex. Civ. App. 1902, no writ).   The courts and this office
have repeatedly characterized the powers and duties of the district
clerk and county clerk as ministerial functions. See Benge v. Foster,
47 S.W.2d 862 (Tex. Civ. App. - Amarillo 1932. wx     ref'd); Attorney
General Opinion Nos. JM-694 (1987); JM-166 (1984); cf. Attorney
General Opinion .JFl-533(1986). Sections 51.303 and 51.402 of the
Government Code govern the duties and powers of the district clerk and
county clerk, respectively. The first section provides the following:

             (a) The clerk of a district court, in record
          books kept for that purpose, shall:

                (1) record the acts and proceedings of the
             court;

                (2)  enter all judgments of the court under
             the direction of the judge; and

                (3) record all executions issued and the
             returns on the executions.

             (b) The district clerk shall keep in well-
          bound books an index of the parties to all suits
          filed in the court. The index must list the
          parties alphabetically using their full names and
          must be cross-referenced to the other parties to
          the suit. In addition, a reference must be made
          opposite each name to the page of the minute book
          on which is entered the judgment in the case.

             (c) On the last day of each term of the court,
          the district clerk shall make a written statement
          of fines and jury fees received. The statement



                                  p. 3421
Honorable Gary E. Kersey - Page 3   (JM-735)




         must include the name of the party from whom a
         fine or jury fee was received, the name of each
         juror who served during the term, the number of
         days served, and the amount due the juror for the
         services. The statement shall be recorded in the
         minutes of the court after it is approved and
         signed by the presiding judge.

             (d) The clerk of a district court may:

                (1)   take the depositions of witnesses; and

                (2) perform other duties that are imposed
             on the clerk by law.

Gov't Code 151.303. The duties of the county clerk are described in
the following provision:

             (a) The clerk of a county court may:

                (1)   issue marriage licenses; and

                (2)   take affidavits and depositions.

             (b) On the last day of each term of the court,
          the clerk shall make a written statement of fines
          and jury fees received since the last statement.
          The statement must include the name of the party
          from whom a fine or jury fee was received, the
          name of each juror who served during the term, the
          number of days served, and the amount due the
          juror for the services. The statement shall be
          recorded in the minutes of the court after it Is
          approved and signed by the presiding judge.

             (c) The clerk shall deposit fines and jury
          fees received by the clerk in the county treasury
          for the use of the county.

Id. 551.402. Neither provision expressly authorizes a district clerk
orcounty clerk to impose the deposit requirement you have inquired
about. The clerks of the district and county courts may require from
a plaintiff security for costs before issuing any process. but must
file petitions presented to them and enter them on the docket. Tex.
R. Civ. Proc. 142. See Attorney General Opinion Nos. JR-533 (1986);
S-42 (1953). Furthermare, clerks are required to issue process and
perform all other services required of them when a party who is unable
to provide security for costs files an affidavit with the clerk
stating that the party is too poor to pay the costs of court. Tex. R.
Cl". Prof. 145. See also Family Code 971.04(d). Rule 146 of the
Texas Rules of Civil Procedure permits a party required to post bond



                                    p. 3422
Honorable Gary E. Kersey - Page 4 (JM-735)
                                                                        I



for costs to submit a deposit for such costs instead. The amount of
the deposit, however, is determined by the court and is intended to
cover only accrued costs:

             In lieu of a bond for costs, the party required
          to give the same may deposit with the clerk of
          court or the justice of the peace .such sum as the
          court or justice from time to time may designate
          as sufficient to pay the accrued costs.

Tex. R. Civ. Proc. 146. See Mosher v. Tunnell, 400 S.W.2d 402 (Tex.
Civ. App. - Houston 1966, writ ref'd n.r.e.).

     It is a longstanding rule in Texas that documents are filed with
the court clerk when tendered. Arndt v. Arndt. 709 S.W.2d 281 (Tex.
APP. - Houston [14th Dist.] 1986, no writ). It is evident, then, that
clerks may not refuse to file petitions presented to them simply
because the petitioner has yet to provide security for costs. To
permit the clerk to impose conditions on the filing of applications
for protective orders would, we believe, deny the applicant his
constitutional right to open courts:

          All courts shall be open, and every person for an
          injury done him, in his lands, goods, person or
          reputation, shall have remedy by due course of
          law.

Tex. Const. art. I. 113. LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.
1986). See Attorney General Opinion JM-533 (1986). Accordingly, a
district>    county clerk may not condition the performance of a
ministerial duty -- G,        the filing of an application for a
protective order -- on the applicant's payment of a deposit for court
costs.

                             SUMMARP

             A district or county clerk may not require a
          person applying for a protective order pursuant to
          section 71.04 of the Texas Family Code to post a
          deposit for court costs as a condition of filing
          the application.




                                       JIM     MATTOX
                                       Attorney General of Texas

MARY RRLLER
Executive Assistant Attorney General



                                  p. 3423
:

.
    Eonorable Gary E. Kersey - Page 5    (JM-735)




    JUDGE ZOLLIE STEAKLEP
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Rick Gilpin
    Assistant Attorney General




                                         p. 3424
