                            @ffice of the Elttocnep Qbnecal
                                          &date of tkxae
DAN MORALES                                  August 2,1994
 ATTORNEY
      GENERAL
    Honorable David Motley                       OpinionNo. DM-298
    Kerr County Attorney
    Kerr County Courthouse                       Re: Whether, under section 71.04(e) of the
    700 East Main Street                         Family Code, a clerk of court may charge an
    Kerr-Ale, Texas 78028-5324                   applicant for a protective order more than $36 in
                                                 certain cases and related question (RQ-559)

    Dear Mr. Motley:

             You have asked us whether, under section 71.04(e) of the Family Code, a clerk of
     court may charge an applicant for a protective order in cases of family violencet more than
     $36 if more than one person requires service or if service of notice of an application for a
     protective order is attempted but not completed. You also have asked us whether, under
     Texas Rule of Civil Procedure 145, an applicant for protective order who currently
     receives a government entitlement based on indigency must specify in an aflidavit other
     income and assets availableto the applicant. We will answer your questions in the order
     you asked them.

             The legislature originally enacted title 4 of the Family Code, of which chapter 71 is
     a part, in 1979 in an effort to address the problem of family violence. See Alexander,
     supro note 1, at 1863. Chapter 71 pertains specificallyto protective orders. Pursuant to
     section 71.02 of the Family Code, a person commences a proceeding under chapter 71 by

             ‘ktion 71.01@)(Z)ofthe Family C&e de&m ‘familyviolence”as:

                     (A) anactbyamcmkr~s~yorhouscholdagainaanothermemba
                of the familyor hens&oldthat is intmdedto remlt in physicalharm,bodily
                injury,orassault,orthatisathnatthatrcasonablyplacesthewmbcrinfearof
                imminentphysicalhsrm, bodilyinjury,or assault,excludingthe reasonable
                disctplineof a childby a personhavingthatduty;or
                     (B) abuse,as thattermis de&tedbySections34.102(1)(C),Q, and (G) of
                this axle, by a memberof B family or householdtowarda child of the family or
                household. Footnote omitted.]
     For pmposes of chapter71, the term“family”“includesindividualsrelatedby consangmm
                                                                                     ‘tyoraffhlily,as
     &ennhud underArticle59%h, RevisedStatutes,individualswho are formerspousesef each ether,
     . ..
     mdwrdu&    whoamthebiological  parentsof thesamechild,withoutregardto marriage,anda fosterchild
     and festerparent,whetheror nottheseindividualsresidetogether.’Fem. Code g 71.01(b)(3). The term
     “household”“meansa unit composedof personsliving togethexin the same dwelling, wh&er or net they
     am dated to each other.” Id. 5 71.01(b)(S). The term “memberof a household” “includes a former
     memberof a household,”i.e., “a personwho previouslyliked in the household.” Id. 8 71.01(b)(4), (6).
     Seegenerolly Alexander,Tide 4. Pmfection ofthe Fmdly, 21 TEx. TECH.L. REV.1863.1864-66 (1990).




                                                    p.   1592
HonorableDavidMotley - Page 2                (DM-298)




5ing with the appropriate clerk of court an application for a protective order. See Fam.
Code 33 71.03 - .05 (providing for venue, persons qua&d to file applicatiog and
contents of application). Section 71.04(e), about which you specifically ask, provides for
fees related to the 5ing and service of an application for protective order. It states as
follows:
              The fee for 5ing an application is $16 and is to be paid to the
          clerk of the court in which the application is Sled. Except as
          provided in Section 71.07 of this code, the applicant may not be
          assessed any other fees, costs, charges, or expenses by the clerk of
          the wutt or any other public 05cial in connection with the
          application. The rotnl fees rekzting to the filing of and service of
          notice of an application for 0 protective order, inchaiing fees m&r
          Section 71.07 of this coak, may not exceed $36 under ary
          ciramstunces. An applicant who is unable to pay the filing fee and
          other costs as provided in Section 71.07 of this code may 5e with
          the court an a5davit of inability to pay under the procedures, to the
          extent that they apply, provided by the Texas Rules of Civil
          Procedure. mphasis added.]

Section 71.07, to which section 71.04(e) refers, provides in pertinent part as follows:
               (a) Each individual who is alleged to have committed family
          violence is entitled to service of notice of an application for a
          protective order as provided by this section on the 5ii of an
          application.
               ....
              (f) A party 5ing an application for a protective order shall
          thrnish the clerk with a su5cient number of copies of the application
          for service of those individuals alleged in the application to have
          c4mmitted family violence.
              (g) A notice of an application for a protective order shall be
          served in the same manner as a citation under the Texas Rules of
          Civil Procedure, except that service by publication is not authorized.
               . . . .

              (i) The fee for service of notice of an application for a
          protective order charged to the applicant under this section may not
          bemorethan
                     (1) $20 ifthe notice is delivered in person; or
                    (2) the cost of postage if the service is by registered or
               certiiied mail.




                                             p. 1593
Honorable David Motley - Page 3                (DM-298)




        Section 71.04(e) limits the total fees a clerk may charge an applicant for a
protective order to $36. This is equivalent to the amount section 71.04(e) requires a clerk
to charge for filing the application ($16) plus the fee section 71.07(i) authorizes a clerk to
charge for service of notice of an application for protective order ($20). However, as you
suggest, in drafting section 71.07 the legislature contemplated that, upon occasion,
multiple services or multiple attempted services must be made. For example, an applicant
may allege that more than one individual has committed family violence, and in such a
situation, section 71.07(a) entitles each such individual to service of notice of an
application for protective order. Additionally, section 71.07(b) requires the clerk to have
the notice served in the matmer the applicant directs, which may be one of two methods
rule 106(a) of the Texas Rules of Civil Procedure authorize-~ by delivering a copy of the
application to the respondent in person, or by mailing a copy of the application to the
respondent by registered or certitled mail, return receipt requested. If the- applicant
requests that the clerk have the notice served upon the respondent in person, the server
may need to make multiple attempts to serve the notiix2 In either situation, section
71.04(e) appears to mandate that the clerk charge only S20 for service, regardless of the
number of respondents served or number of times service must be attempted. You ask us,
therefore, to resolve the inconsistencyyou perceive between section 71.04(e) and section
71.07 ofthe Family Code.

        The legislature designed title 4 of the Family Code in part to provide protective
orders to persons who are poor. Alexander, supra note 1, at 1869. In 1979, when the
legislature originally enacted section 71.04(d) (renumbered as subsection (e) in 1989, see
Acts 1989,71st Leg., ch. 614,s 2, at 2014-15), it specified a nominal tiling fee of S16 but
did not limit the amount a clerk could assess for service of notice of the application for
protective order,’ although section 71.07(a) mandated that each respondent was entitled




       3As eriginally amted, section 71.04(d) provided
                                                     that “[t]hsfeefor filing an applicationis 516
sadistok~totheclalrdthecouninwhichthcapplieatioaisfiled”             SeeAc&l979,66thLeg,eh
98,s 11,at 185.



                                               p.   1594
Honorable David Motley - Page 4                  (DM-298)




to se-rvi~e.~See Acts 1979, 66th Leg., ch. 98, 8 11, at 185. Clerks therefore charged
court costs and service fees in addition to the $16 fXng fee, raising the total fee to a level
so high that many eligible persons could not afford to apply for protective orders.
Alexander, supra note 1, at 1869. In 1987 the legislature amended section 71.04(d) to
prohibit a clerk from assessing in connection with the application any fees, costs, charges,
or expenses, other than the fee for service of the notice that section 71.07 authorizess
See Acts 1987, 70th Leg., ch. 1090, Q 1, at 3700; see also Alexander, supru note 1, at
1869.

        In 1991, by the enactment of Senate Bii 1149, the legislature added the present
third sentence to section 71.04(e): “The total fees relating to the filing of and service of
notice of an application for a protective order, including fees under Section 71.07 of this
code, may not exceed S36 under any circumstances.” On its face, this sentence clearly
prohibits a clerk from assessing a total fee larger than S36 under mry circmstances. The
IegkWve history does not show any contrary intent. In hearings on Senate Bii 1149, the
author, Senator Brooks, underlined the plain language of the amendment by stating that
the purpose of the amendment was to “clarifythe previous legislative intent that the iihng
fee [for an application] for protective order shah not exceed S16 and rhe fee for service
skdnot exceed820 under any circumstances.” Hearings on S.B. 1149 Before the Senate
Comm. on Health Br Human Services, 72d Leg. (Apr. 16, 1991) (statement of Senator
Brooka, author) (tape available from Senate Staff Services) (emphasis added). Conse-
quently, we wnstrue section 71.04(e) to absolutely prohibit a clerk f?om charghrg an
applicant for protective order under chapter 71 of the Family Code more than $36,
regardless of the number of respondents who must be served or the number of times
service must be attempted before the server actually delivers the service.

        Your second question wncerns affidavits of inabiity to pay costs. As quoted
above, section 71.04(e) permits “[a]n applicant who is unable to pay the Sling fee and
other costs as provided in Section 71.07 of this wde [to] tile with the wtut an affidavit of
inability to pay under the procedures, to the extent that they apply, provided by the Texas




         %a1987 the k8islatm amendedsection71.04(d) ofthe Family Codeto providein perthem part
as follows (italic5indicatekngua8e the legiskture addedin 1987):

                Thef&forfilinganapplicationkS16andklokpeidtotbcdcrLodtbc
           court in whieb tbe applieaticm is filed. Except ap proviokd in Section 71.07 of
           this co& the appricrmt may not be awesed any other fees, costr, chqes, or
           expenses by the clerk of the court or my other public oflcial in connection with
           the opplicotion.

~escc11987.7oth~,cb.1090,~1,at3700.           Bythesmebill,thekgkk~addedtosedion71.O7
of tk Family Code !&section (c), which readessentiallyas atkn 71.07(i) does cmxntly. !kc disats-
sko spa page2 @notingFam Ccdc p 71.07(i)).


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Honorable David Motley - Page 5              (DM-298)




Rules of Civil Procedure.” Rule 145 of the Texas Rules of Civil Procedure provides in
pertinent part a8 follows:
               In lieu of Sling security for costs of an original action. a party
          who is unable to afford said costs shall file an atlidavit as herein
          described. A “party who is unable to afford costs” is defined as a
          person who is presently receiving a govermnental entitlement baaed
          on indigency or any other person who has no ability to pay costs.
          Said atlidavit, and the party’s action, shall be processed by the clerk
          in the nuumer prescribed by this rule.
               . . . .

               2.    Affidavit The affidavit shall contain complete information-
          as to the party’s identity, nature and amount of govermnental
          entitlement income, nature and amount of employment income, other
          income (interest, dividends, etc.), spouse’sincome if available to the
          party, property owned (other than homestead), cash or checking
          accom dependents, debts, and monthly expenses.

        You contend that, because rule 145 defines a “party who is unable to afford costs”
as a person who is presently receiving a government entitlement based on indigency, an
applicant for protective order who is filing an a&lavit of inability to pay under section
71.04(e) of the Family Code need only state in the atlidavit his or her identity and the fact
that he or she is receiving a government entitlement based on indigency. You believe that
the remainder of the information specified in rule 145 is “wholly unnecemary.” We are
uncertain whether, by the phrase “wholly unnecessary,” you mean not required or
irrelevant. Because rule 145 explicitly requires an aftiant to provide complete information
mgarding each of the items listed in paragraph 2 of the rule (thus making such information
necessary), we need not determine here whether the information specified in paragraph 2,
other than a statement that the atlisnt is the recipient of a government entitlement baaed
on indigency, is relevant to determiningwhether such a person is unable to afford the costs
of an original action.6 Cj Cronenv. Smith,812 S.W.2d 69,75 (‘Tex.App.-Houston [lst
Disk] 1991, no writ) (Mirabal, J., dissenting) (atEant receiving government entitlement
based on indigency is as matter of law “party who is unable to atford costs” within wntext
of rule 145).




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tmderrulel45oftheTexasRdesofCivilF’nxdue       inwllichtheaf6antt1sful1ytostatehisorbcr
6nawialwnditiona6rcquirrdbytbcnde.




                                             p.   1596
HonorableDavidMotley - Page 6              (~~-298)




                                  SUMMARY

              Ptumant to section 71.04(e) of the Family Code, a clerk must
          not charge an applicant for a protective order under chapter 71 of the
          Family Code more- than S36 total for tiling the application and
          serving notice of the application, regardless of the number of
          respondents who must be served or the number of times service must
          be attempted before the server actually delivers the service.
          Although an applicant for protective order is presently receiving a
          governmental entitJementbased on indigency, the applicant must, if
          he or she claims to be unable to pay the filing fee and other costs as
          provided in section 71.07 of the Family Code, Sle with the clerk an
          a5davit of htabiity to pay in which the applicant provides
          information regardii all items paragraph two of Texas Rule of Civil
          Prowdure 145 speciiies.




                                                      DAN MORALES
                                                      Attorney General of Texas

JORGE VEGA
J%st Assistant Attorney General

DREWDURHAM
Deputy Attorney General for CriminalJustice

JAVIER AGUILAR
Special Assistant Attorney Genera)

RENEAHIcKs
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
l4dtantAttomeyGeneral




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