                               The Attorney General of Texas                      ’

JIM MAlTOX
                                             Pcbruary21. 1986
Attorney General


Supreme Court Suildlng         HonorableHike Drtscoll         OpinionNo. JM-434
P. 0. BOX 12S4a                Harris CountyAttorney
A”s*in. TX. 78711. 254S        1001 Preston,Sui:e 634         Rc: Whether a county clerk is entitled
51214752501
                               Houston, Texas K'OO2           to receive a fee in connectionwith
Telex QlO/S74-1387
Telecopier 51214750288                                        administrationof trust funds under
                                                              article2558a. section4c(a),V.T.C.S.
714 Jackson, Suite 700         Dear Mr. Driscoll:
Dallas, TX. 75202-4SC6
21417426844
                                   You have reqxsted our opinionin regard to the implementation
                                                                                              of
                               sectionk(a) of a:cticle2558a.V.T.C.S. Specificallyyou have asked:
4S24 Alberta Ave.. Suite 160
El Paso, TX. 799052793                     1. .4twhat point in a lawsuitwould the fee be
9151533-3454                            assessedand collected?

1Wl Texas, Suite 7M)                       2. 'Does commissionerscourt, the county clerk
Houston, TX. 77002-3111                 or the judge in each case institutecollectionof
713i2255888                             the fee?

                                           3.  !faythe county clerk receive a reasonable
SO5 Broadway, Suite 312
Lubbock, TX. 79401-3479                 fee for, holding the trust funds pursuant to the
SOW7476238                              decisionof the Texas SupremeCourt in Sellersv.
                                        Harris Cfounty,483 S.W.2d 242 (Tex. 1972)?

4308 N. Tenth, Suite B
                                           4. Is the county clerk entitled to a reason-
McAllsn. TX. 78501-1885
51ZSS2.4547                             able fe'e for holding trust  funds in probate
                                        matters?
 200 Main Plaza, Suite 400     Section4c(a) provides:
 San Antonio, TX. 782052797
 51212254191
                                           To o,ffsetthe expense of handling District
                                        Clerk aad County Clerk Trust Funds for the benefit
 An Equal OpportUnitYI                  of 1it:lgsntsin civil proceedings,a county v.ay
 Affirmative Action Employer            collect from the nonprevailing party in the
                                        litigation or from the party the court shall
                                        designatea fee of $50.

                               V.T.C.S. art. 25.5lla,
                                                    §4c(e). The Texas Supreme Court in Sellers v.
                               Aarris County,403 S.W.2d 242 (Tex. 1972) describedarticle255ga as:



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HonorableMike Driscoll- lltrge
                            2      (JN-434)                           -   -




           a comprehensive statute setting   procedure and
           liabilityin thq!handling of trust funds in the
           possession of county and district clerks. It
           makes the county liable if funds on deposit with
           its designateddepositoryare lost. The clerk Is
           reliwed of responsibilityfor the safekeepingof
           the funds so lcng as they are deposited In the
           legallyselectedldepository.

483   S.W.2d at 243.

    Prior to Sellers,su~ca, Barris County relied on section 4a to
collectall interestearned on the trust fund and place this interest
in the general fund of the county as an offset to the expense of
handling the trust fund for the benefit of the litigants. But. the
supreme court in Sellers,i=,    held that interestearned by deposit
of money owned by the parties to a lawsuit is the property of the
ovners and not the county. 483 S.W.2d at 243. Accordingly,we
beliave from the expres:lwords of section 4c(a) the legislature
intendedto allow the cou~:y to collect only a $50 fee to offset the
expenseof handlingthe trust fund.

    You first ask. at 4x;ltpoint in the lawsuit would the fee be.
assessed and collected. The provisiondoes not specify a particular
time in which the fee may be collected. The Supreme Court of Texas
has promulgatedrules re!.atcdto cost in civil cases. See Tex. R.
                    see d.80 Gov't. Code 022.004. Theseles
civ. P. at 125-49; ---                                         are
applicableto all civil cues institutedin the state courts.

    Rule 129 outlines the    procedure for collectingcost. Rule 129
providesin part:

               If any -L     responsiblefor costs fails or
            refuses to pay the same within ten days after
            demsnd for payment, the clerk or justice of the
            peace may make c:c:rtified
                                    copy of the bill of costs
            thm due, and place the same in the hands of the
            sheriff or conr:t:ablefor collection. All taxes
            imposed on law proceedingsshall be included in
            the bill of costs. Such certifiedbill of costs
            shall have the force and effect of an execution.
            The r-al    of a case by appeal shall not prevent
            the issuanceof an executionfor costs. (Emphasis
            added).

Tsx. R. Civ. P. 129. Th:lsrule contemplatesthat the cost is to be
collected from the responsibleparty when it is due. Thus, it is
reasonableto concludethat the functionfor which the cost is taxed
has been performed. Cf. Attorney GeneralOpinion H-756 (1975) (clerk
may not collecta feefor service of processbefore service is made).



                                P. 1986
RonorsbleMike Driscoll- Page 3    (JM-434)




Moreover, Rule 125 provii.es that parties responsibleare only liable
for costs "incurred"CL!, when the funds have been tendered to the
county clerk to be held k1 trust.

    Section 4c(a) authorizesthe county to collect the $50 fee from
either the nonprevailingparty or from the party the court shall
designate. V.T.C.S. srt. 2558a, 04-z(a). Accordingly, before a
district or county clerk may collect the $50 fee. the expense of
handling the trust fund must have been incurred. The assessmentof
cost will necessarily await the outcome of the litigation. Cf.
hhitley v. King, 581 S.W.2d 541 (Tex. Civ. App. - Fort Worth 1979,T
writ).

     In regard to your swond question,it is not clear under section
4c(a) who is required to institute collectionof the fee. Section
4c(a) only provides that "a county" may collect the fee. V.T.C.S.
art. 2558a. S4c(a). A:.thoughcounties normally act through the
commissionerscourt, artlcle 2558s contemplatesthat the county and
district clerks shall render the service of handling the trust fund.
See generally Sellers v. Harris County, 483 S.W.2d 242 (Tex. 1972).
Thus, we believe that th; county clerk is required to institutethe
collectionof the $50 fw under article 3930(10),V.T.C.S. Article
3930 provides in part:

             County cler'w . . . are hereby authorized and
          requiredto collectthe follomingfees for services
          rendered by them to all persons, firms, corpora-
          tions, legal entities,governmentalagenciesand/or
          governmentalrepresentatives:

             .   .   .   .

             (IO) For such other duties prescribed,autho-
          rized, and/or permitted by the Legislature for
          which no fee f.sset by this Act, reasonablefees
          shall be chargt:d.(Emphasisadded).

V.T.C.S. art. 3930(10). Accordingly,we conclude that the county
clerk is responsiblein each case for institutingthe collectionof
the fixed fee of $50 aut'borized
                               by section4c(a). Poreover,Rule 129
of the Texas Rules of Cdvil Procedure,as quoted above. also Implies
that county or district clerksinstitutethe collectionof costs due.
Cf. Tax. R. Civ. P. 129.
-
      You next ask whether the county clerk may receive a reasonable
 fee pursuant to Sellers'i.Harris County, 483 S.W.2d 242 (Tex. 1972),
 for holding the trust funId.We think not. Sellers,s,       held that
 the county may charge a fee which is reasonablyrelatedto the value
 of the county's services. Id. at 244.        However, section 4c(a)
 specifies that the fee for handling the tNSt    funds is to be $50.


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HonorableMike Driscoll- :?age4   (Jkf-434)




Thus, the legislaturehas determined that this fee Is reasonably
related to the value of 1;h.e
                            services; and, therefore.no sdditioual
fee may be assessed.

    Finally,you ask whether a county clerk is entitledto collecta
reasonablefee for holding trust funds in probate matters. Section
12(s) of the ProbateCode p,rovides:

            The provisfcns of law regulating cost in
         ordinarycivil cases shall apply to all matters in
         probate when noExpressly provided for in this
         Code. (Emphasisadded).

Section 4c(a) of article 2558a. V.T.C.S., applies to all "civil
proceedings,"and we are unaware of any express provision In the
Probate Code relating to t,heexpense of handling district clerk and
county clerk trust funds for the benefit of the litigants. Therefore,
section 4c(a) is applicableto probate proceedings. For the reasons
specifiedabove, the county or district clerk is entitledonly to a
fixed fee of $50 for handlingthe trust fund in probstematters.

                            SUMMARY

             Before a districtor county clerk may collecta
          $50 fee pursuant to section 4c(a) of article
          2558a. V.T.C.S., the expense of the district or
          county clerk for handlingthe trust fund must have
          been incurred,and there must have been a designa-
          tion of a responsibleparty by the court. Article
          3930(10),V.T.C.!;., requires the county clerk to
          institutethis zollectionof the fixed fee of $50
          authorizedby section 4c(a). Section 4c(a) of
          article 2558a. V.T.C.S.,requires that the county
          receivea reasonablefee of $50. No other fee is
          contemplatedby the provision. Finally section
          4c(a) is read t:ogetherwith section 12(a) of the
          ProbateCode, the county clerk may collectthe $50
          fee in probatel>roceedings.




                                      JIM    HATTOX
                                      AttorneyGeneralof Texas

 JACK HIGHTOWER
 First AssistantAttorneyGeneral



                                 p. 1988
.
    HonorableMike Dtiscoll - P,aSe5   ml-434)




    MARY KELLER
    ExecutiveAssistant   AttorneyGeneral

    ROBERT GRAY
    SpecialAssistantAttorney   General

    RICK GILPIN
    Chairman,Opinion Committee

    Preparedby Tony Guillory
    AssistantAttorneyGeneral




                                      p. 1989
