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                                                     The Attorney General of Texas
                                                                          February        22.   1982

    MARK WHITE
    Attorney General

                                                   Honorable   Henry Wade                                 Opinion   No.   Mw-447
    sq%me      Coil?! Building                     Criminal District      Attorney
    P. 3 Box 12548
                                                   Sixth Floor,     Records Building                      Re:    Whether state     is exempt
     :i~tin. TX. ia711.    2548
    51:1475.2:c1
                                                   Dallas,   Texa’s     75202                             from filing     fees under artic?c
    70191 91n,i74-:x7                                                                                     3912(e),    V.T.C.S.
    TeieCOEle,            5:2;475-:265
                                                   Dear Mr. Wade:
    :6C.7 lain ST.. Suite 1400
    2: ias. TX 7521!.4709                                You have requested      our opinion    as to whether               article        39i?c-,
    214!742aa4C                                    V.T.C.S.,   exempts the state    of Texas from paying filing               fees    in    civil
                                                   cases filed   with district   clerks.

    2824        Alber!a     Ave..   suite    160
                                                        Article   3912e        provides    in pertinent    part:
    El ?asc. TX.            78405.2793
    9151533.3464
                                                                    Section   1.    No district     officer     shall be paid
                                                              by the State of Texas any~ fees or commissions                for
    12.x csiias    Ave.. Sulle              202
                                                              any service    performed    by him;...       provided...    that
    HOUS!O”,    TX. 770026986
                                                              the provisions      of this     Section     shall    not affect
    713/65&os6
                                                              the payment of costs         In civil       cases    or eminent
                                                              domain proceedings      by the State....
    806 Broadway.              Suite 312
    Lubbock,     TX,          79401.3479                             . . . .
    8061747.5235

                                                                    Sec.   19.   Provisions    of this   Section    shall
    ~309 Pd. Tenth.    Sule    6                              apply    to and control     in each county...     having    L
    MCAIICP.     TX. 78531-1685                               population    in excess   of one hundred and ninety...
    ‘,l:i6R24547                                              thousand inhabitants....

    200 Main Plaza. Suite 403                                        ....
    San An,onio.  TX. 78205.2797
    512.225.4191                                                      (j)      Each district,      county,    and precinct
                                                              officer     who shall     be compensated   on a salary     basis
                                                              shall     continue    to charge    for the benefit       of the
                                                              Officers’      Salary    Fund of his office      provided    for
                                                              in this Section,        all fees and commissions       whfch he
                                                              is now or hereafter          may be authorized       to charge
                                                              against      and collect     from the State     of Texas for
                                                              services      performed    by him in civil   proceedings....
                                                              (Emphasis added).
Honorable         Hcnrv     Glade - Page 2            (~~-447)




          Tn Attorney              General      Opinion     W!&62g           (1959).       this       office           observed
that:

                         Tt is noted      that the prohibitions            contained
                  in Sections     1 and 3 of Article        3912e...      concerning
                  the payment of fees or commissions               by the State do
                  not apply    to the payment of costs              in civil      cases
                  by the State      where    the fees      earned      constitute       a
                  part of the cost assessed            against      the State      in a
                  particular     case.      Therefore;      such cost        must     be
                  paid bv the State as provided             by    law rather. than
                  as a fee     to the individuai           officer.         (Emphasis
                  added).

See     2152    hrtcrncy           G’eneral     Opinions         be2l?i     (1967);      {,".;-65i(      (!95?);         i..L:-5':;

(1558);        C-807 (1939).    Compare Attorney                            General       Opinion           bi-163       (1567)
(filing        fees in criminal  cases).

      To       answer your question,      we must determine       whether the    filing
fees  to       which you refer   constitute     “costs”   of ci~vll cases within      the
meaning        of section  1 of article     3912e.     If the fees do, the state        of
Texas is        not exempt from liability     for payment of such fees.       Attorney
General        Opinion w-628   (1959).

        Article       3927,         V.T.C.S..      provides,              in pertinent           part,       that:

                         The clerks     of                the      district            courts         shall
                  receive   the followjng                 fees     for their           services:

                           . . .

                        For each suit  filed, including appeals  from
                  mfrrior   courts ........................... 3i3.X

     In Phillins              v. Wertz,   579 S.W.2d 279 (Tex.    Civ.                                App.         -     3s112s
1974, writ ref’d              n.r.e.).  the court stated as follows:

                        The general       rule    in Texas is that expenses
                 incurred        in prosecuting      or dofending     a suit    are
                 not    recoverable         as    CORCS or      damages     uniess
                 recovery       for such items in expressly         provided    ior
                 bv statute         or   is    recoverable     under    eauitablc
                 principles....          [Article      39271  lists    the   items
                 that    the district        clerk    shall  tax as costs..       ..
                 (Emphasis added).

The court  concluded  that because    certified    copies  of deeds are not
among the items enumerated  in articles     3927 or 3927b (since   repealed),
the costs   involved in obtaining    such copies     could  not be taxed ns
Honorable    Henry Wade - Page 3                   (MW-447)




                            .I


"Costs"    against  the appellees  in that case.  See also Attorney     General
Opinion     MW-308 (1981)    (fee for   recording abstract   of  judgment     in
county    records    not among costs    to be taxed   on initial    filing    of
delinquent     tax suit).

       Unlike  the fee involved     in the Phillips       case,    filing  fees    are
among the items listed     in article       3927 which may be taxed as costs.
We believe    it follows,   therefore,      that such fees      constitute   "costs"
within   the meaning of section     1 of article     3912r.     The state  of Texas
is therefore     not exempt from liability        for payment of such fees           in
civil   cases filed  with district     clerks.

        We have      r.ot        overlooked     article    39??a,      V.T.C.S.,        which    providzc
that:

             [Article    39271 shall   not be construed     as amending
             or   repealing     any  existing     law  concerning     the
             exemption    of the State of Texas or any political
             subdivision     of the State     of Texas from liability
             for costs or deposits      therefor.

This statute      refers     to laws which specifically         exempt the state       from
liability    for payment of certain        costs.      See, e.g..     V.T.C.S.    art. 7297
(state    exempt from payment of costs           "growing   out of" suit        to recover
delinquent     taxes);      see Prop.   Tax Code 533.49.          Article    3912e is not
such a statute.           Itdoes     not exempt      the state      from liability       for
payment of "costs        in 21~11 cases."

                                              SUMMARY

                      Article  3912e.   V.T.C.S.,    does not exempt the
             state     of Texas from having       to pay filing  fees in
             civil     cases filed   with district     clerks.

                                                              Very   truly     yours,    n



                                                          -MARK               WHITE
                                                            Attorney         General of      Texas.

JOHN W. FAINTER, JR.
First Assistant Attorney                 General

RICHARD E; GRAY III
Executive Assistant               Attorney     General

Prepared    by Jon Bible
Assistant    Attorney  General
Honorable   Henry Wade - Page 4     (Mw-447)

                                               .




APPROVED:
OPINION COMHITTEE

Susan L. Garrison,   Chairman
Jon Bible
Robert W. Gauss
Rick Gilpin
Jim Moellinger




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