                              May 12, 1987




Honorable Mike Driscoll   .           Opinion No.   JM-694
Harris County Attorney
1001 Preston, Suite 634               He:   Duties of a district clerk
Houston, Texas   77002                with regard to notices of dis-
                                      missal filed in civil action and
                                      related questions

Dear Mr. Driscoll:

     You inquire about those duties which the district clerk of Ilarris
County must discbarge,in civil actions when the clerk receives: (1)
"notices of dismissal," (2) "a request for withdrawal by an attorney
from a civil action scheduled for dismissal," and (3) "a combined
motion and order for non-suit filed in a civil action which was not
signed by the Judge." Before proceeding to answer your questions,
some preliminary matters need to be addressed.

     The district court clerk's duties are prescribed by statute. In
particular, section 51.303 of the Texas Government Code, governing the
"duties and powers" of the clerk of a district court, sets forth 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


                (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 au index of the parties to all suits
          filed in the court. The Index must list the
          parties alphabetically using their full uamas and
          must be cross-referenced to the other parties to
          the suit. In addition, a reference must be made




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           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 feas received. 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.

               (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. (Emphasis added).

     The    courts typically characterize the powers and duties of
district   clerks as ministerial functions. Benge v. Foster, 47 S.W.Zd
862, 864   (Tex. Civ. App. - Amarillo 1932, writ ref'd). In Cooney v.
Isaacks,    173 S.W. 901, 903 (Tex. Civ. App. - El Paso 1915, writ
dism'd).   the court asserted:

           The duty to file      papers and docket motions rests
           with the clerk,        and it is the duty of that
           official to file      all papers tendered for filing,
           and to docket all     motions filed.

See also Wooster v. McGee, 1 Tex. 17 (1846) (the district clerk is
responsible for filing all papers in a .cause presented by the
parties).   The courts haves therefore distinguished the clerk's
ministerial duties from judicial determinations. See. e.g.. Burrell
V. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) ("Judges render
judgment; clerks enter them on the minutes.").

     Rulea 25 and 26 of the Texas Rules of Civil Procedure impose
obligations upon the district clerk with respect to administering file
dockets. Rule 25 of the Rules of CivU Procedure provides:

           Each clerk shall keep a file    docket which shall
           show in convenient form the number of the suit, the
           names of the attorneys, the names of the parties to
           the suit, and the nature thereof, and, in brief
           form, the officer's return on the process, and -all




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          subsequent proceedings had in the case with the
          dates thereof. (Emphasis added).

Rule 26 of the Rules of Civil Procedure provides:

          Each clerk shall also keep a court docket in a
          well bound book in which he shall enter the number
          of the case and the names of the parties, the
          a-s   of the attorneys, the nature of the action,
          the pleas, the motions. and the rulings of the
          court as made. (Emphasis added).

     Notices of dismissal are governed primarily by Rules i62 and 163
of the Rules of Civil Procedure. Rule 162 provides:

             The plaintiff may dismiss a case upon filing a
          notice of dismissal. which shall be entered in the
          minutes. A copy of the notice shall be served in
          accordance with Rule 21a on any party who has
          answered or has been served with process.
          (Emphasis added).

     Rule 163.states:

             When it will not prejudice another party, the
          plaintiff may dismiss his suit as to one or more
          of several parties who were served with process,
          or 'who have answered, but no such dismissal shall
          in any case, be allowed as to a principal obligor,
          except in the cases provided for in Art.   2088 of
          the Revised Civil Statutes of Texas.

In our opinion. the reasonable construction of Rules 162 and 163 in
light of Rules 25 and 26 requires the clerk to perform the ministerial
acts of entering the notice of dismissal in the minutes  and filing it
in the subject cause. See also Benge v. Foster, 47 S.W.Zd at 864
(clerk serves in ministerial capacity for court).

     As to correspondence received by a clerk concerning the with-
drawal of an attorney from a civil action, Rule 10 of the Rules of
Civil Procedure provides:

             An attorney of record is one'who has appeared
          la the case. as evidenced by his name subscribed
          to the pleadings or to some agreement of the
          parties filed in the case; and he shall be
          considered to have continued 'as such attorney to
          the end of the suit in the trial court, unless




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          there is something appearing to the contrary in
          the record. (Emphasis added).

Since the clerk is responsible for maintaining the "record" in a civil
action, see generally Tex. R. Civ. Proc. 25 and 26; Govt. Code
551.303. correspondence addressed to the clerk pertaining thereto,
such as a request for withdrawal by an attorney, should be entered in
the minutes and in the file by the clerk of the district court. See
also Curtis v. Carey, 393 S.W.Zd 185, 188 (Tex. Civ. App. - Corpus
Christi 1965, no wit) (having once appeared as attorney of record for
a party, an attorney, as an officer of the court, will continue to be
attorney of record for that party until the trial court gives him
permission to withdraw); State Bar Rules, V.T.C.S. Title 14 App. art.
10, P9. Code of Prof. Resp., DRZ-110(A)(l).

     Turning to non-suits, the rule governing a plaintiff's motion for
non-suit provides:

              Upon the trial of any case, at any time before
          plaintiff has introduced all of his evidence other
          than rebuttal evidence, the plaintiff may take a
          non-suit. but he shall not thereby prejudice the
          right of an adverse party to be heard on his claim
          for affirmative relief. In the event a motion for
          sanctions   is pending, or the party taking the
          non-suit has been ordered to pay either attorney
          fees or other costs, or both, as sanctions for
          failing to comply with court orders and has failed
          to pay such fees or costs, or both, the non-suit
          shall have no effect upon the liability for
          attorney fees, sanctions, or other costs.

Tex. R. Civ. Proc. 164. When the defendant has not sought affirmative
relief prior to plaintiff's motion for non-suit, the Texas Supreme
Court has liberally construed Rule 164 as favoring plaintiff's right
to take a non-suit unencumberad by any requirements extrinsic to Rule
164. See Greenberg v. Brookshirs, 640 S.W.Zd 870, 872 (Tex. 1982);
Newmanx     Co. v. Alkek. 657 S.W.Zd 915, 920 (Tex. App. - Corpus
Christ1 1983, no writ).

     Although Rule 164 does not specify any duties for the district
clerk concerning motions for non-suits, motion practice in civil cases
requires in part the following:

            An application to the court for      an order,
         whether in the form of a motion, plea or other
         form of request, unless presented during a hearing
         or trial, shall be made in writing. shall state
         the grounds therefor. shall set forth the relief




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Houorable Mike Driscoll - Page 5         (m-694)




          or order sought. and shall be filed and noted on
          the docket. (Emphasis added).

Tex. R. Civ. Proc. 21. The word "shall" is generally construed co be
mandatory. Green v. Couucy Attorney of Anderson County, 592 S.W.2d
69, 73 (Tex. Civ. App. - Tyler 1979. no writ); Attorney General
Cpinion JId-561 (1986). Accordingly, a district clerk must file in
the record and note in the docket a motion for non-suit and its
accompanying proposed order. The clerk's fulfillment of these duties
in a timely manner is especially significant in that the plaintiff's
right to a non-suit exists from the moment a motion for non-suit is
wade,.uuless the defendant has, prior to that time, sought affirmative
relief. Greenberg v. Brookshire, 640 S.W.Zd at 872.

                               SUMMARY

               when the clerk of the district court receives
          a notice of dismissal. a request for wlthdrawal by
          an attorney from a civil action scheduled for
          dismissal, or a motion for a non-suit with an
          accompanying proposed order, the duty of the clerk
          with respect to each of these documents or instru-
          ments is  to enter them in the minutes and file
          them in the record of the subject cause.




                                           JIM     MATTOX
                                           Attorney General of Texas

JACK RXBTOWER
First Assistant Attorney   General

MARY XELLBR
Executive Assistant Attorney   General

JUDGE ZOLLIE STEAICLRT
Special Assistant Attorney General

RICK GILPIN
chairman, Opinion Committee

Prepared by Jeff Millstone
Assistant Attorney General




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