-         .




                                      The Attorney        General of Texas
                                                      August 23. 1985
    JIM MATTOX
    AttorneyGeneral
                                                                              Overrules in part JM-168


    Supreme Court Building           Ronorabla Henry WadI,                   Opinion Ho. JM-346
    P. 0. Box 12548                  Criminal District A:torney
    Austln, TX. 78711-2548           Condemnation Sectio!l                   Re: Fees to be charged
    512,475.2501                     Services Building                       filing certain instruments in
    Telex 9101874-1367
                                     Dallas, Texas   75202                   probate court
    Telecooier   512I475.02’36

                                     Dear Mr. Wade:
    714 Jackson, Suite 700
    Dallas, TX. 75202-4506                You request the opinion of this office concerning fees, if any,
    2141742-0944
                                     to be charged by county clerks for the filing of pleadings and legal
                                     instruments by defcrtdantsin adverse actions in the probate courts,
    4824 Alberta   Ave., Suite 160   such as the defenduut's original answer, an*wer* to interrogatories,
    El Paso, TX. 799052793           or responses to requests for admissions. You also seek clarification
    91515333464                      of Attorney General.Opinion JM-168 (1984) in regard to the applica-
                                     bility of subsectixl (b)(i), paragraph B(l), section 1, of article
    ,001 Texas. Suite 700
                                     3930(b), V.T.C.S.     We conclude that the state statutes do not
    Houston, TX. 77002-3111          authorize any fees t.obe charged by county clerks in adverse actions
    713/223-5886                     in the probate ccurt, except the fee to be paid by the party
                                     initiating the adverse action as authorized by article 3930(b),
                                     section 1, paragra~n B(l)(c).
    1306 Broadway, Suite 312
    Lubbock, TX. 79401.3479
    8061747-5238                          Since 1967, a::ticle 3930(b), V.T.C.S., has prescribed the fees
                                     which clerks of the county courts are authorized to charge for court-
                                     related services pc,rformedby the clerks. In section 1, paragraph A
    4303 N. Tenth, Suite B
                                     of that act provides for fees for ordinary civil cases on the county
    McAHen, TX. 78501-1685
    5121882-4547
                                     civil court dockets. Paragraph C relates to services of the clerk in
                                     issuing and recor<,lng the return of documents where no cause is
                                     pending. Paragraph D has to do with issuing certificates, certified
    200 Main Plaza. Suite 400        copies, and other documents on which there is no return to be
    San Antonio. TX. 78205-2797
                                     recorded. Paragraph E applies to letters testamentary and similar
    512/2254191
                                     instruments, and Paragraph F applies to the filing and keeping of
                                     wills for safekeepjng. Section 1, paragraph B, which prescribes fees
     An Equal Opportunityl           for probate court do#zkets,provides, in pertinent part, that
     Attirmative Action Employer

                                                  (1) I've each cause or action, or docket in
                                               Probate Courts: . . . .

                                                  (a) For each original cause or action in a
                                               Probate ?&,    a fee to be due and payable and to
                                               be paid 1)~ the party or parties starting or
                                               initiating said cause or estate action. . . .




                                                                  p. 1574
Honorable Henry Wade - Page Z   (JM-346)




            (I) For   probat:ing will    vith   independent
         executor; for admtuistration with will attached,
         for administration of an estate, for guardianship
         or receivership of an estate, for muniment of
         title, a fee from the starting or initiating such
         cause of action uztil either an order approving
         the inventory and $praisement   is filed or until
         the inheritance oF estate tax receipt is filed,
         whichever first oc&s:
                           --     a fee of...........$35.00

             .   .   .   .

             (b) For each Jrobate docket remaining open
          after the filing of the order approving the
          inventory and appraisement or after the filing of
          the inheritance OI? estate tax receipt, whichever
          occurs first, &a      following fees shall be
          paid. . . .

             (I) For filing, or filing and recording, of
          each instrument of writing, legal document, paper
          or record in an open Probate Docket after the
          filing of the order approving the inventory and
          appraisement or s:Eter   the filing of the tax
          receipt, whichever :Lsapplicable, a fee:

              (1) For the first page of.............. $3.00
              (2) For each p,%geor part of a page thereafter
          of ......................................... $2.00

             (ii) For approving and recording each bond
          relating only to an open Probate Docket after the
          filing of the order approving the inventory and
          appraisement or after the filing of the tax re-
          ceipt, whichever is applicable, a fee of... $3.00

             (iii) For administering each oath relating to
          an open Probate P,ccket after the filing of the
          order approving the inventory and appraisement or
          after the filing cf the tax receipt, whichever is
          applicable, a fee ,~f....................... $2.00

             (c) For each ad-verseaction or contest, other
          than the filing of IIclaim against an estate, in a
          cause or docket ilr a probate court, a fee to=
          due and payable ant3 to be paid by the party or
          Parties starting o:cinitiating such adverse action
          or contest, but e&uding     other items listed in




                             p. 1575
Ronorable Henry Wade - Page :I (JM-346)




          Paragraphs A, B, C, and D of this Section 1,
          of ................ ......................... $25.00

              (d) For filing and entering each claim against
          an estate in the cLsim docket, a fee to be paid by
          claimant at the -time of filing such claim,
          of ......................................... $2.00
          (Emphasis added).

     Until amended in 1983, paragraph B(l)(a) provided for a fee for
each original cause or action for a period of one year from the
starting or initiating of th'e cause of action instead of a fee from
the starting or initiating of the cause of action until either an
order approving the inventory and appraisement is filed or until the
inheritance or estate tan receipt is filed. Likewise, prior to 1983,
paragraph B(l)(b) provided fees for each probate docket remaining open
after its first anniversary date instead of a fee for each docket
remaining open after the fiL:Lngof the order approving the inventory
and appraisement or after the filing of the inheritance or estate tax
receipt.

     The usual proceedings within the jurisdiction of the probate
courts may remain pending Eior lengthy periods of time. It is our
opinion that the legislatur: intended the reference to inventory and
appraisement and to inheritance or estate tax receipt as a determina-
tion of the period of time during which services by the county clerk
are compensated by the lump sum fee for the starting of the original
cause or estate action. The amendment in 1983 ties that determination
to key points in the probate process in place of the arbitrary one-
year period. See Bill Anal]%16 to S. B. No. 663, 68th Leg., prepared
for Rouse CommEee   on the .Judiciary,filed in Bill File to S. B. No.
663, Legislative Reference Iibrary. We conclude that fees provided by
paragraph B(l)(b) apply to services which would be covered by the
provisions of paragraph B(l)(a) were it not that the services occur
after the filing of the ordr,rapproving the inventory and appraisement
or after the filing of the tar receipt. On the other hand, fees
provided by paragraph B(l):(:) apply to adverse actions or contests
other than claims against an estate, which are not themselves probate
matters, but are filed in probate court because they are ancillary or
incident to a cause in the ,probatecourt. Fees provided by paragraph
B(l)(d) apply to claims against an estate.

     Rence, we conclude ths.t it is the intention of the legislature
that it is paragraph B(l)(c), not paragraph B(l)(b), that applies to
the adverse actions about whf.chyou inquire.

      It has long been estab3.ishedthat unless a fee is provided by law
 for an official service required to be performed and the amount is




                                  p. 1576
Honorable Renry Wade - Page 4   (JM-346)




fixed by law, a fee may not be charged. Furthermore, fee statutes are
strictly construed, and fees are not pelmitted by implication.

             The courts of 1311s state have adopted the rule
          construing strictly those statutes prescribing
          ,fees for public officers and against permitting
          such fees by implication. No officer is permitted
          to collect fees ot commissions unless the same are
          provided for and the amount thereof declared by
          law. This is true, notwithstanding such officer
          may be required by law to perform specific
          services for which no compensation is provided.

HcCalla v. City of Rockdale,,246 S.W. 654, 655 (Tex. 1922). See also
         Sheouard. 192 S.W.:!d
Moore v. Sheppard,      S.W.                                    nty V.
                               559, 561 (Tex. 1946); Nueces County  V.
                                                            t, 57 Tex.
Currington, 162 S.W.2d 687, 1688 (Tex. 1942); State v. Moore,
Currington
307, 321 (1882); Attorney General Opinions MW-104 (1979);
                                                        (1979); R-796
(1976); S-87
        b-o, (1953);
             \lvo=,i V-957
                     Y-Y=, i'v+v,.
                            (1949).

     Paragraph B(l)(c) expressly requires a $25.00 fee to be paid by
the party initiating an advlarse action' or contest in a cause in a
probate court. We think that neither paragraph B(l)(c) nor any other
statutory provision of whi& we are aware provides for a fee other
than the initial $25.00 fee in such an adverse action. In Rodeheaver
v. Alridge, 601 S.W.2d 51. 54 (Tex. Civ. App. - Houston [lst Dist.]
1980, writ ref'd n.r.e.), the court stated that

             A reading of .kcticle 3930(b) shows that the
          $25.00 fee which the county clerk is to collect
          for each filed aiverse action or contest covers
          not only the clerk's services for the initial
          filing of the act!.onbut 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 at the time the fee is
          collected.

     In Attorney General Op,lnionJM-168, we stated that supplemental
instruments filed in conneci:ionwith an ancillary probate action are
subject to the fees prescribed by paragraph B(l)(b)(i) of article
3930(b) if the instruments are filed after the inventory and appraise-
ment have been approved or after the inheritance or estate tax receipt
has been filed. We now con'zludethat,   other than the initial $25.00
fee, no fees are authorize3 for the filing of pleadings and legal
instruments in adverse and ancillary actions in the probate courts.
To the extent that Attorney G'eneralOpinion JM-168 conflicts with this
conclusion, it is overruled.




                                 p. 1577
I       .



    ,       .




                Ronorable Henry Wade - Page 5   (JR-3-346)




                                              SUMMARY

                             County clerks s,re authorized to charge an
                          initial fee of $25.00 to be paid by the party
                          initiating an adverse action or contest in a
                          probate   court.   An  additional fee    is not
                          authorized for the filing of pleadings and legal
                          instruments by the defendants in adverse actions
                          in a probate court.




                                                        ($z;&
                                                        Attorney General of Texas

                TOM GREEN
                First Assistant Attorney General

                DAVID R. RICRARDS
                Executive Assistant Attorney General

                ROBERT GRAY
                Special Assistant Attorney Gsrueral

                RICK GILPIN
                Chairman, Opinion Committee

                Prepared by Nancy Sutton
                Assistant Attorney General

                APPROVED:
                OPINION COMMITTEE

                Rick Gilpin, Chairman
                Jon Bible
                Colin Carl
                Susan Garrison
                Tony Guillory
                Jim Moellinger
                Jennifer Riggs
                Nancy Sutton




                                                   p. 1578
