                                  August 16, 1988




Honorable Joe Warner Bell                 Opinion No. Jt4-939
Trinity County Attorney
P. 0. Box 979                             Re: Whether a district clerk
Groveton, Texas 75845                     may charge a fee for filing
                                          transfer papers in a child
                                          support enforcement   action
                                          (RQ-1466)

Dear   Mr. Bell:

     You ask whether a district clerk may charge a fee for
filing papers   in a    child support enforcement     action
transferred pursuant to section 11.06 of the Family Code.

     When a court acquires jurisdiction of a suit affecting
the parent-child    relationship,  it   retains   continuing
exclusive jurisdiction of all the parties and issues unless
an exception  exists under section 11.06 or 17.06 of the
Family Code. Fam. Code § 11.05.

     Your question concerns .the transfer of a case under
subsection (b) of section 11.06 of the Family Code, which,
among other things, addresses a transfer of a proceeding  to
the county where a child has moved and currently    resides.
Under your scenario it appears that prior to the change of
residence of the child an order for support had been entered
by the transferring court.

       Subsection       (k) of section 11.06 states:

           A court to ~which a transfer is made becomes
           the court of continuing jurisdiction, and all
           proceedings in the suit are continued as if
           it were brought there originally.  All judg-
           ments, decrees, and orders transferred  shall
           have the same   effect and be enforced as if
           originally entered in the transferee court.

See Fassv v.       Kenvon, 675         S.W.Zd 217 (Tex.   APP. -   Houston
[lst   Dist.]   1984,    no   writ).




                                        p. 4721
Honorable Joe Warner Bell - Page 2     UN-939)




     Texas Rule of Civil Procedure 89 provides that a court
may dismiss a case transferred on a change of venue if a new
filing fee is not paid.   Section 14.13 of the Family Code,
however, addresses the matter of filing fees to be collected
when a motion for enforcement of an order is filed. Section
14.131 provides:

        No additional filins fee mav be collected  or
        reouired in a suit affecting      the parent-
        child relationship when a party to the suit
        files a motion to modify a decree under
        Section 14.08 of this code, or when a motion
        for the enforcement    of an order is filed
        under Section 14.09 or 14.091 of this code.
        This section does not prohibit the clerk from
        collecting a deposit in the amount set by the
        clerk as in other cases for payment        of
        expected costs and other expenses arising  in
        the proceeding.   (Emphasis added.)

     Section 14.13 was construed in Attorney General Opinion
JM-396 (1985) where it was stated:

        That vrovision makes 'clear that the district
        clerk mav not charae a fee for a motion      to
        modifv a decree or a motion for enforcement
        of an order      in a     suit affectins    the
        parent-child  relationshiv.     Apparently  the
        district clerk's ouestion arose because      of
        uncertainty about <he interpretation of the
        phrase 'no additional     filing fee' in that
        provision.    We    think    that   the    word



     1. Another provision also labeled section 14.13 of the
Family Code provides:

          A clerk, auditor, sheriff, or other government
     officer or employee may not charge a fee or other
     amount for services rendered in connection    with an
     action or proceeding in which the attorney general of
     this state is representing a party for the purpose of
     obtaining child support.

In Attorney General Opinion JW-396 (1985) it was concluded
that the two sections are not in conflict and the "overlap
in labeling is nothing more than a clerical error.   Thus,
both amendments are valid."




                             p. 4722
         9




             Honorable Joe Warner Bell - Page 3    (JR-939)


-,



                     'additional' is a reference to the initial
                     filing fee     in the    suit affecting  the
                     parent-child relationship.   Zn   ffect. the
                     provision   means that the caste of filinq
                     motions   to modifv or motions to enforce
                     orders is covered bv the initial filino fee.
                     (Emphasis added.)

                  When a party to a suit affecting the parent-child rela-
             tionship desires to seek modification or enforcement of a
             decree, the legislature has provided that no additional  fee
             is to be collected in the suit. The legislature has not
             excused a party merely   from paying a filing fee for the
             motion for modification   or enforcement,   but instead has
             excused a party who files a motion from all additional
             filina fees in the suit. This provision makes sense.      If
             the child has moved, a transfer may be necessary to adjudi-
             cate any motion   for modification or enforcement     of the
             decree governing    the parent-child    relationship.    The
             legislature wants no filing costs attached to seeking
             modification or enforcement.    Thus, the legislature    has
             provided that a party who seeks modification or enforcement
             of a decree need not pay a fee for filing the necessary
             motions or a fee for the transfer necessary to adjudicate
             such motions.

                  Your concern   is how to resolve the conflict between
             Texas Rule of Civil Procedure 89 and section 14.13 of the
             Family Code. We believe that the Family Code controls.    In
             Bervoer v. Dia.??, 585 S.W.2d 359 (Tex. Civ. App. - Dallas
             1979, no writ), a motion to transfer was granted       in a
             proceeding concerning the parent-child relationship pursuant
             to the provisions of section 11.06. The appellants contend-
             ed that they were entitled to an appeal under the then Rules
             of Civil Procedure   in that the action of the trial court
             amounted to a change of venue in a plea of privilege
             proceeding.   In dismissing  the appeal the appellate  court
             held that the transfer procedures in the Family Code were
             designed to supplant the regular venue rules in the Rules of
             Civil Procedure.    Based upon this authority,  we conclude
             that the cost provision of section 14.13 of the Family Code
             supplants the cost provision      of Texas Rule of     Civil
             Procedure 89.




     C




                                         5. 4723
Honorable Joe Warner Bell - Page 4      (JM-939)




             A district clerk may not charge a fee
        for filing papers in a child support enforce-
        ment action transferred  under section  11.06
        of the Family Code.            .




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

I.OUMCCRBARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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