   The Attorney                 General of Texas
                        April     18,     1978




Honorable Romeo Flores                           Opinion No. II- 1155
County Attorney for Jim Wells
P. 0. Drawer 2080                                Re: Duty of clerks of court
Alice, Texas 78332                               when called upon to file plead-
                                                 ings not certified as having been
                                                 delivered   or mailed      to the
                                                 adverse party or his attorneys.

Dear Mr. Flores:

      Your question concerns the amendment to Rule 72 of the Texas Rules of
Civil Procedure which became effective January 1, 1978, pursuant to order of
the Texas Supreme Court. In pertinent part the amended rule reads:

           Whenever any party files, or asks leave to file any
           pleading, plea, or motion of any character which is not
           by law or by these rules required to be served upon the
           adverse party, he shall at the same time either deliver
           or mail to the adverse party or his attorney of record a
           copy of such pleading, plea or motion. The attorney or
           authorized    representative   of such attorney,    shall
           certify to the court on the filed pleading in writing
           over his personal signature, that he has complied with
           the provisions of this rule. . . .

The emphasized language was added by the recent amendment. You ask if a
court clerk may now refuse to accept for filing pleadings that are not
certified in accordance with the rule.

      Prior to the addition of the certification requirement, the consequence
of a failure to obey Rule 72 was spelled out by Rule 73, which has not been
changed:

           If any party fails to furnish the adverse party with a
           copy of any pleading in accordance with the preceding
           rule, a certified copy may be ordered to be furnished




                                 P.     4683
Honorable Romeo Flores      -   Page 2           (H-1195)



            by the clerk and the costs thereof charged to the party who
            had failed to comply with the order to furnish the same.

      Rule 24, regarding the duty of the ‘clerk, also remains unchanged.         It reads:

            When n petition is filed with the clerk he shall endorse
            thereon the file number, the day on which it was filed and
            the time of filing, and sign his name officially thereto.

Rule 74 states:

               The filing of pleadings,      other papers and exhibits as
            required by these rules shall   be made by filing them with the
            clerk of the court, except      that the judge may permit the
            papers to be filed with him.    .. .

       When the Supreme Court has meant for the clerk of a court to exercise
discretion with respect to documents offered for filing, it has plainly said so. See
V.T.R.C.P., rules 388, 389, 389a, 480. In our opinion the duty of the clerk of a trial
court with respect to filing pleadings, other papers, and exhibits is made ministerial
by the rules of civil procedure, not discretionary.   See Wagner v. Garrett, 269 S.W.
1030 (Tex. 1925). See also Benge v. Foster, 47 Sx.2d 862 (Tex. Civ. App. -
Amarillo 1932, writ-           Though the court itself may apply sanctions such as
those permitted by Rules 68 (repleader) and 70 (surprise) for a failure to comply
with Rule 72, the amended rules confer no judicial power upon the clerk to apply
sanctions.

       We believe the clerk must file the papers offered, whether he thinks them
properly certified or not; if the clerk believes required certification is inadequate
or missing, after filing them he may flag the pleadings or otherwise bring them to
the attention of the court. @ Attorney General Opinion H-826 (1976).

                                   SUMMARY

            A trial court clerk cannot refuse to file pleadings which
            appear to him inadequately certified pursuant to Rule 72,
            Texas Rules of Civil Procedure.

                                                 Very truly yours,
                                      / 2 /                 4437/L,
                                      _,                                     /
                                                 Attorney General of Texas




                                            p.     4684
Honorable Romeo Flores    -   Page 3        (H-1155)



APPROVED:



55$---Y&y
DAVID M.    ENDALL, First Assistant




C. ROBERT HEATH. Chairman
Opinion Committee ’

jst




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