                               The Attorney          General of Texas
                                                  fecember 2. 1985
JIM MATTOX
Attorney General


Supreme Court Building         Honorable F. Dunciatllmnes              Oph~iom No. .JM-384
P. 0. BOX 12548                District Attorney
Austin. TX. 76711.2548         P. 0. Box 441                           Re: Whether certain fees may
512/47&2501                    Greenville, Texas   75401               be charged by a district clerk
Telex 9wa74-1367
Telecopier  5121475-0266
                               Dear Mr. Thomas:

714 Jackson, Suite 700              You ask about the fees a district clerk may charge in couuection
Dallas, TX. 75202.4506
                               with a lawsuit fil'edin district court. At the time a suit is filed
2141742-8944
                               in district court a fee of $75.00 is due and payable. Gov't Code
                               551.317(b)(l) (fomerly V.T.C.S. art. 3927, §I; amended by Acts 1985,
4824 A,berta A”& suite 160     69th Leg., ch. 239, at 2038); Acts 1985, 69th Leg., ch. 480, at 3932
El Paso, TX. 79905-2793        (bill adopting Gor"t Code). A catchall provision authorizes district
9151533.3484                   clerks to charge reasonable fees for the performance of duties for
                               which the legislature has set no fee. Gov't Code §51.319(5) (formerly
1001 Texas, Suite 700          V.T.C.S. art.~ 3928, 55). You ask whether the catchall provision
Ho”sto”, TX. 77002.3111        authorizes a district clerk to charge, in addition to the initial
7131223.5886                   $75.00 filing fee, reasonable fees for filing each order and judgment
                               in a suit. You inform us that the Office of Court Administration
                               takes the position that the initial $75 fee covers all clerical
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
                               services in a suit except those for which additional fees are
aw747.5238                     expressly provided. We think that the Office of Court Administration
                               has interpreted the statute correctly.
4309 N. Tenth. Suite 6
                                        We base our conclusion on the structure and language of the
McAllen, TX. 76501.1685
5121682-4547
                               applicable fee statutes.         Gov't Code 5551.317 - 51.319.       The
                               legisiature     has provided for fees to be charged by thti clerk at the
                               cite a suit is filed in district court. Gov't Code 551.317(b)(l).
200 Mann Plaza. Suite 400      The legislature has also set fees to be charged for the performance of
San Antonio. TX. 78205.2797
                               certain services by a district clerk at the time of performance or
512/225-4191
                               request for performance and has provided that any such fee is "in
                               addition to a fee under Section 51.317." Gov't Code 951.318(a). That
 An Equal Opportunity/         language implies that other duties performed by a district clerk in
 Affirmative Action Employer   connectlou with a lawsuit are covered by the initial fee.

                                    A 1980 cam: supports our reading of section 51.317(b)(l).
                               Rodeheaver v. Aldstz    601 S.W.Zd 51 (Tex. Civ. App. - Houston [lst
                               Dist.1 1980, writ ref d n.r.e.). In Rodeheaver the court dealt with
                               the following language:




                                                          p. 1760
Honorable F. Duncan Thomas - Page 2   (JM-384)




             For each adve::seaction or contest, other than
          the filing of a claim against an estate, in a
          cause or docket in a probate court, a fee to be
          due and payable and to be paid by the party or
          parties starting or initiating such adverse action
          or contest, but excluding other items listed in
          Paragraphs A, B, C, and D of this Section 1, of
          $25.00.

V.T.C.S. art. 3930(b). §lh(l)(c). The court concluded that the $25
fee covered various duties performed by the county clerk during the
course of the suit:

             A reading of .Article 3930(b) show. that the
          $25.00 fee which  the county clerk is to collect
          for each flied adverse action or contest covers
          not only the c:.erk's services for the initial
          filing of the acrion 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 et the time the fee is
          collected.

Rodeheaver, 601 S.W.2d at 54.   We think section 51.317(b)(l) must be
read in the same way.

     Because the legislature has set a $75 fee' that covers the filing
of orders and payments in a suit, the catchall provision is inappllc-
able to such filings since it applies only when the legislature has
not set a fee to cover the clerk's performance of a duty.




     1. The Sixty-ninth Lq;islaturr amended article 3927 to increase
the initial filing fee fo,c a suit In district court from $25.00 to
$75.00. Acts 1985, 69th Leg., ch. 239 at 2038. The text of the Govern-
ment Code, which was adopted in the same legislative session, states
that the initial filing fee is $25.00. Gov't Code 051.317(b)(l), Acts
1985, 69th Leg., ch. 480, at 3932. The same bill that enacted the
Government Code repealed a:rticle3927. Id. at 4088. The increase in
the filing fee is effectj.ve,nonethele=      because the repeal of a
statute by a code does not affect an amendment of the statute by the
same legislature that enacted the code. V.T.C.S. art. 5429b-2,
93.11(c). And the codification was not intended to effect a substan-
tive change in the law. Ac.ts1985, 69th Leg., ch. 480, 127. at 4090.




                                 p. 1761
    Honorable F. Duncan Thomas .-Page 3     (JM-384)
1




                                  SUMMARY

                 The initial feseof $75.00 for filing a suit in
              district court :overs the services performed by
              the district clerk during the course of the cult
              except for the service for which a fee is
              expressly provided. Gov't Code 051.317.


                                              VeryItruly your



                                                      MATTOX
                                              Attorney General of Texas

    JACKHIGHTOWER
    First Assistant Attorney General

    MARY KELLER
    Executive Assistant Attorney General

    ROBERT GRAY
    Special Assistant Attorney (General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Sarah Uoelk
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Rick Cilpin, Chairman
    Colin Carl
    Susan Garrison
    Tony Guillory
    Jim Moellinger
    Jennifer Riggs
    Nancy Sutton
    Sarah Woelk
    Bruce Youngblood




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