     THE       AcrroltviE~        GENERAL              Qks


                   AUUTIN   II. TEXAS


                   xv 18, 1953

Hon. Frank D. McCown        Opinion No. S-42
County Attorney
Dallam County               Re: Authority of the County and
Dalhart, Texas                  District Clerk to require a
                                court cost deposit before
                                accepting any Instruments
                                for filing and Issuance of
Dear Sir:                       process or recordatlon.
            You have requested an opinion on the following
question:
          %ag a County or District Clerk re-
     fuse to file law suits and Issue process
     and refuse to file Instruments and record
     them of record before the costs deposit Is
     made, In the case of law suits, fees are
     pa;iGOln the case of filing and recorda-
          ..
          Rules Civil Procedure, Rule 142 (old Article
2067 Vernon's Civil Statutes unchanged) provides:
          "The clerk may require from the plaln-
     tiff security for costs before Issuing any
     process, but shall file the petition and
     enter the same on the docket. No attorney
     or other officer of the Court shall be
     surety In any case pending In the coyt,
     except under special leave of court.
          Further, security for costs may be made by
depositing a sum of money In lieu of the bond to the
clerk of the court. Rules Civil Procedure,Rule 146.
          Rule 145 of..the.Rulesof Civil Procedurepro-
vides In part that when a party Is too poor to pay costs
and Is unable to give security therefor, the clerk shall
Hon. Frank D. McCown, page 2 (S-42)


neverthelessfile the suit, Issue process and perform all
other services required of him In the same manner as If
security has been given.
          The pertinent part of Article 3932, Vernon's
Civil Statutes,applicable to your questionwhether a
clerk may demand recording fees prior to the filing and
recording Is aa follows:
          " . . . No County Clerk shall be compelled
     to file or record any Instrumentof writing
    permitted or required by law to be recorded
     until the payment or tender of payment of all
     legal fees for such filing or Fecordlnghas
     been made. Nothing herein shall be held to
     IncludeGapers or in.struments  filed or re-
     corded in suits pending In the County Court."
     (Emphasisadded).
          It will thus be seen that the county or dls-
trlct clerk shall file the petition In every case when
It la presentedto him, but he Is not required to Issue
any process thereon without security for costs In said.
cause, or.unleas a sum of money Is depositedwith the
clerk sufflclentto secure the'estlrnated copts, or un-
less the plaintiff shall file a paupers affidavit In
lieu of the bond or deposit.
          Further, the county clerk shall collect all
legal fees before filing or recording any instrument
required by law to be filed or recorded, except "papers
or Instrumentsfiled or recorded In suits pending In
the County Court."

                       suMMARY
          Clerks of the district and county
     couzyts are required to file petitions In
     lawsuitswhen presented to them, but are
     not required to Issue process thereon un-
     less security for costs Is given or 1s
     avoided In one of the ways provided by
Hon. Frank D. McCown, page   3 (S-42)


    law. Clerks of county courts are not
    required to file or record any instru-
    ment required by law to be filed or re-
    corded unless all legal fees are first
    paid or tendered.
                              Yours very truly,
APPROVED:                     JOHN BEN SHEPPEFID
                              Attorney General
J. C. Davis, Jr.
County Affairs Division
Willls E. Gresham             By n&a&*
Reviewer                         B. Duncan Davis
                                            Assistant
Robert S. Trottl
First Assistants
John Ben Shepperd
Attorney General
BDD:am
