                                    The Attorney General of Texas
                                                        Ncvember 2,      1984
JIM MAlTOX
Attorney General


                                 Honorable   Henry Wade                               Opinion   No. m-223
SupremeCourtBuilding
P. 0. Box 12549                  District   Attorney
Austin. TX. 78711. 254S          Condemnation Section                                 Re:     County    clerk’s     fee    for
5121475.2601                     Services   Building                                  filing   and recording       a certif-
Telex 9101874-1387
                                 Dallas,   Texas     752x!                            icate    of    service      under    the
Telecopier   51214750268
                                                                                      probate    code

714 Jackson. Suite 700           Dear Mr. Wade:
Dallas. TX. 75202.4506
214/742-8944
                                       You ha&reques,ted       our opinion    regarding  fees of office     which the
                                 county   clerk    may collect    in certain     probate  matters.     Specifically,
4824 Alberta   Ave.. Suite 190   you have asked what fees the county clerk            is authorized    to charge for
El Paso. TX. 799052793           the filing     of certefn   documents generated      as a consequence    of eschcat
91M33.3184                       of a portion     of the deceased’s    estate    to the state of Texas.

  11 Texas, Sulfa 700
                                        You ask whether         the county     clerk   may charge      a $4.00      fee    for
  mston. TX. 77002.3111          filing    and recording       a certificate       of service    executed     pursuant       to
7131223-5886                     section    428 of the Texas Probate Code.            Section   428 requires      the clerk
                                 of the probate       court    to mail a certified         copy of the court         escheat
                                 order to the state       treasurer.       The clerk is required       under section       426
606 Broadway. Suite 312
Lubbock. TX. 79401.3479
                                 to record      a certificate        from the postmaster         stating     that    such a
8061747-5238                     certified     copy    of    court    order   was properly       mailed    to the       state
                                 treasurer.      Sectlot!   420 provides:

4309 N. Tenth. Suite B
                                                  Whenever an order          shall  be made by the court
McAllen. TX. 785ol.lS85
51%02-4547
                                              for    an executor      or an administrator       to pay any
                                              funds to i:he State Treasurer           under the preceedlng
                                              provisions      of this Code. the clerk of the court in
 2M) Main Plaza. Suite 400                    which .su:h order        is made shall     mall to the State
 San Anhnio.  TX. 192052797
                                              Treasure::     a certified      copy of such order     within
 51212254191
                                              thirty    days after       the same has been made.      When-
                                              ever the clerk mails such copy. he shall take from
 An Equal OpportunityI                        the postmaster        with whom it is mailed         a certi-
 Atfirmalive Action E~plovw                   ficate    stating    that such certified      copy was mailed
                                              in his oEfice.       addressed     to the State Treasurer    at
                                              Austin,     Texas,    and the date when it was mailed,
                                              and shall     record    such certificate.

                                  You have also asked what fee,       If any, the county clerk  is required                 to
                                  collect   for  recording    the receipt    filed by an administrator    of                an
                                  estate  pursuant   to section   430, which provides:




                                                                   p.   1001
Ronorable     Henry Wade - Page i             (JM-223)




                  Whenever an exetmtor          or administrator       pays the
              State     Treasurer     ;u,y     funds   of   the     estate    he
              represents,       under    the preceeding       provisions      of
              this Code, he shall         take from the State Treasurer
              a receipt      for   such payment,       with   official      seal
              attached,     and shall     file     the same with the clerk
              of   the    court    ordering       such  payment;      and such
              receipt     shall   be ::trcorded in the minutes           of the
              court.

And third,  you have asked vtat fee may be collected    for certifying                                a
copy of the court’s  escheat order as is required  under section    428.

        It is the court clerk’s            legal duty to make the certification                      and
record     the certificate        as i:s required           by section         428.       The adminis-
trator     of the estate      does not request            the certification              under section
428, nor offer         for filing       the    certificate.           The administrator            does,
however, present         for filing       and recording          the receipt         of payment from
the state      treasurer    under section          430.      A prior     opinion       of this office
concluded      that the state       treasurer       was not required            to pay any fees to
the county clerk         for the certification             required     under section          428 of a
court     order    transmitted       to the state            treasurer’s         office.       Attorney
General Opinion M-170 (1967).                 This opinion          reasoned       that the section
428 certification          was not a “service               rendered”       for purposes         of the
county     clerk    fee statutes,         articles       3930 and 3930(b).              V.T.C.S.     The
certification        and certificat.e         filing      under section           428, we believe,
are internal         procedures       in the county            clerk’s       office       and are not
subject      to the county       clerk     fee statutes          which specify            the fees   for
“services      rendered.”      V.T.C.S.,      arts.     3930, 3930(b).

       The probate    fees pemil:t:ed   to be collected                   by the county   clerk
are set by article       3930(b).    A general probate                   fee for the adminis-
tration   of an estate    is $35.00,  which fee covers                   the required issuance
of all writs,    process    and

               all    other  instruments.     documents,     or  papers
               authorized,  permitted    or required   to be issued   by
               said county clerk or said clerk       of probate  courts
               on which a return uust be recorded.       , . .

V.T.C.S.     art.   3930(b),        §lB(:,).     This general   fee includes      “all   other
clerical     duties     in connection          with such probate      court   docket.”     &&
We believe      therefore       that the general       fee required      for the filing     and
administration        of an estate!           covers  the certification       of the court
order    required     by section          l,28 and the recording        of the certificate
that such certified          copy has been mailed to the state treasurer.                 With
regard to the filing            of the receipt       by the administrator.       hovever,    we
believe    that the county clerc may collect               the fee specified      by article
3930(b),     section     -lB(l)(b)(i:‘,        which provides    for the fee for filing




                                                  p.   1002
Ronorable   Henry Wade - Page 3 1:~-223)




and recording     legal     documents       and    instruments   in   au    open    probate
docket.

                                     SUMMARY

                A fee may not be collected           by 6 probate    court
            clerk     for   certifying      a court   order  or filing      a
            certificate       as required     under section    428 of the
            Probate      Code.     A filing    fee may be collected      for
            the filing      by an ahrdnistrator      of his receipt    from
            the state treasure!'         of the escheat   payment.




                                                     JIM      MATTOX
                                                     Attorney  General     of   Texas

TOH GREEN
First Assistant    Attorney      Gens?ral

DAVID R. RICHARDS
Executive Assistant       Attorney   General

RICK GILPIN
Chairman, Opinion     Committee

Prepared    by Rick Gilpin
Assistant    Attorney  General

APPROVED:
OPINION COMMITTEE

Rick Gilpin.   Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoelllnger
Nancy Sutton




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