                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                            December 28,2005



The Honorable Mike Stafford                           Opinion No. GA-0387
Harris County Attorney
1019 Congress, 15th Floor                             Re: Whether Government Code section 5 1.96 1(g),
Houston, Texas 77002                                  which requires one-half of the family protection
                                                      fee collected in divorce suits to be deposited in
                                                      the child abuse and neglect prevention trust
                                                      account, violates the open courts provision, Texas
                                                      Constitution article I, section 13 (RQ-0362-GA)

Dear Mr. Stafford:

        You inquire about the constitutionality of Government Code section 5 1.961(g), which
requires one-half of a fee collected in a suit for dissolution of marriage to be paid to the comptroller
for deposit to the credit of the child abuse and neglect prevention trust fund account (the “trust fund
account”).’ You ask whether the disposition of one-half of the fee pursuant to section 51.961(g)
violates the “open courts” provision of the Texas Constitution. See Request Letter, supra note 1,
at 4; TEX. CONST. art. I, 9 13.

        Senate Bill 6, an enactment of the Seventy-ninth Legislature relating to protective services
and family law matters, amended Government Code section 5 1.961 and became effective September
1, 2005. See Act of May 29, 2005, 79th Leg., R.S., ch. 268, $5 1.66, 5.02, 2005 Tex. Gen. Laws
621, 654, 720. Prior to September 1,2005, section 5 1.961(a) provided that “[tlhe commissioners
court of a county may adopt a family protection fee in an amount not to exceed $15.” See Act of
June 1, 2003, 78th Leg., R.S., ch. 198, 4 2.165(a), 2003 Tex. Gen. Laws 661, 711 (adopting
Government Code section 51.961). Also prior to September 1,2005, section 5 1.961(d) required the
clerk to collect the fee when a suit for dissolution of a marriage under Family Code chapter 6 was
filed and pay the fee to the appropriate county officer “for deposit in the county treasury to the credit
of the family protection account” to fund services directed at preventing family violence and child
abuse. See id.; see also Tex. Att’y Gen. Op. No. GA-023 1 (2004) at 3 (addressing constitutionality
of Government Code section 5 1.961(d)-(e)).




           ‘See Letter from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Attorney
General of Texas (July 8, 2005) ( on file with Opinion Committee, also avuilable at http:llwww.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Mike Stafford       - Page 2        (GA-0387)




         Senate Bill 6 amended section 5 1.961 to “increase the fee from an amount not to exceed $15
to an amount not to exceed $30, with half of the fee going to the child abuse and neglect prevention
fundaccount.” FISCALNOTE, Tex. S.B. 6,79thLeg.,R.S.         (2005) at 8. Section 51.961 nowprovides
in part:

                         (a) The commissioners court of a county shall adopt a family
                protection fee in an amount not to exceed $30.

                         (b) [T]he district clerk or county clerk shall collect the family
                protection fee at the time a suit for dissolution of a marriage under
                Chapter 6, Family Code, is filed. . . . .

                        (c)   [exceptions]

                         (d) The clerk shall pay one-half of the fee collected under
                this section to the appropriate officer of the county in which the suit
                is filed for deposit in the county treasury to the credit of the family
                protection account. . . . .




                         (g) The clerk shall pay one-half of the fee collected under
                this section to the comptroller, who shall deposit the money to the
                credit of the child abuse and neglect prevention trust fund account
                established under Section 40.105, Human Resources Code.

TEX. GOV’T CODE ANN. fj 5 1.96 1(a)-(g) (V ernon Supp. ZOOS),as amended by Act of May 29,2005,
79th Leg., R.S., ch. 268, Ej1.66,2005 Tex. Gen. Laws 621,654 (effective September 1,2005).

         Section 5 1.96 1(g) directs one-half of the family protection fee to the child abuse and neglect
prevention trust fund account established in the general revenue fund by Human Resources Code,
subchapter D, section 40.105. See TEX. HUM. RES. CODEANN. 4 40.105 (Vernon Supp. 2005). Part
of each fee collected for issuing a marriage license or declaration of informal marriage is also placed
in this account. See TEX. Lot. GOV’T CODE ANN. 4 118.022(a) (Vernon Supp. 2005) ($12.50 of
each fee shall be placed in child abuse and neglect prevention trust fund account).

         Chapter 40, subchapter D provides for child abuse and neglect primary prevention programs,
which are services and activities available to the community or to families to prevent child abuse and
neglect before it occurs. See TEX. HUM. RES. CODE ANN. 0 40.101 (Vernon Supp. 2005). See also
id. 4 40.101(2) (defining “primary prevention”). Subchapter D also establishes a “child abuse and
neglect prevention operating fund account” (the “operating fund”) in the general revenue fund. Id.
The Honorable Mike Stafford            - Page 3          (GA-0387)




9 40.106(a).* Money placed in the trust fund account is transferred to the operating fund according
to the following provision:

                            The department [of Family and Protective Services ] may
                   transfer money contained in the [child abuse and neglect prevention]
                   trust fund to the operating fund at any time. However, during a fiscal
                   year the department may not transfer more than the amount
                   appropriated for the operating fund for that fiscal year. Money
                   transferred to the operating fund that was originally deposited to the
                   credit of the trust fund under Section 118.022, Local Government
                   Code, may be used only for child abuse and neglect primary
                   prevention programs.

Id. 8 40.105(b). Section 40.106 authorizes the legislature to appropriate the money in the operating
fund to carry out the provisions of chapter 40, subchapter D. See id. $ 40.106(c). Administrative
costs, subject to a limit established by section 40.104(a),3 “shall be taken from the operating fund.”
See id. 0 40.106(b).

        Subchapter D requires the Department of Family and Protective Services (“the department”)
to operate a child abuse and neglect primary prevention program to

                           (1) set policy, offer resources for community primary
                  prevention programs, and provide information and education on
                  prevention of child abuse and neglect;

                           (2) develop a state plan for expending funds for child abuse
                   and neglect primary prevention programs that includes an annual
                   schedule of transfers of trust fund money to the operating fund;

                           (3) develop eligibility criteria for applicants requesting
                   funding for child abuse and neglect primary prevention programs; and




          2This fund was formerly called the Children’s Trust Fund and managed by the Children’s Trust Fund of Texas
Council. See generally Tex. Att’y Gen. LO-96-047, LO-95-004 (addressing legal questions about using Children’s Trust
Fund). In 2001 the legislature abolished the Children’s Trust Fund of Texas Council and transferred its powers and
duties to the Department of Protective and Regulatory Services. See Act of May 25, 2001,77th Leg., R.S., ch. 957, 5
1,200l Tex. Gen. Laws 1916,1916-21 (adopting TEX. HUM. RES. CODEANN. chapter40, subchapter D). The enactment
provided that “a reference in the law to the children’s trust fund means the child abuse and neglect prevention trust fund
account.” Irl. Q lO(2). In 2005, the Department of Protective and Regulatory Services was renamed the Department of
Family and Protective Services. See Act ofMay 29,2005,79th         Leg., R.S., ch. 268, $9 1.74, 1.75,2005 Tex. Gen. Laws
621, 661.

          ‘Human Resources Code section 40.104(a) provides that “[a]dministrative costs under this subchapter during
any fiscal year may not exceed an amount equal to 50 percent of the interest credited to the trust fund during the
preceding fiscal year.” TEX. HUM. RES. CODE ANN. 9 40.104(a) (Vernon Supp. 2005).
The Honorable Mike Stafford           - Page 4         (GA-0387)




                          (4) establish funding priorities for child abuse and neglect
                  primary prevention programs.

Id. 0 40.102(a). See id. $40.101(5) (“‘Trust fund’ means the child abuse andneglect prevention trust
fund account.“). Funding priorities are determined through community needs assessments. See 40
TEX. ADMIN. CODE 0 704.803 (2005).


         The child abuse and neglect prevention trust fund account is used to help fund the Services
to At-Risk Youth Program managed by the department’s Division of Prevention and Early
Intervention.4 The department describes the Services to At-Risk Youth (STAR) program as follows:

                  STAR services are provided to youth under the age of 18 who are
                  runaways, truants, and/or living in family conflict, youth who are age
                  9 and younger who have allegedly been involved in or committed
                  delinquent offenses, and 1O-to- 16year-olds who have allegedly
                  committed misdemeanor or state jail felony offenses but have not
                  been adjudicated delinquent by a court. . . . Services must include
                  family crisis intervention       counseling,   short-term   emergency
                  residential care, individual and family counseling, and universal child
                  abuse prevention activities.

State Plan, supra note 4.

        The portion of the family protection fee placed in the child abuse and neglect prevention trust
fund account pursuant to section 5 1.961 (g) is ultimately used to fund the department’s Division of
Prevention and Early Intervention program for services to at-risk youth, including administrative
costs. You ask whether this disposition of half of the filing fee collected under Government Code
section 5 1.961(b) violates the “open courts” provision of article I, section 13 of the Texas
Constitution. Request Letter, supra note 1, at 4. This provision is as follows:

                  All courts shall be open, and every person for an injury done him, in
                  his lands, goods, person or reputation, shall have remedy by due
                  course of law.

TEX. CONST.     art. I, § 13.

         This provision establishes the importance of the right of access to the courts. See LeCroy v.
Ha&on,713 S.W.2d335,339(T           ex. 1986). It “specifically guarantees all litigants the right to redress
their grievances” in court.Ill. at 34 1. “[Tlhe legislature cannot arbitrarily or unreasonably interfere
with a litigant’s right of access to the courts."Id. In LeCroy, the Texas Supreme Court considered
the constitutionality of a provision directing to the general revenue fund $40 of the $75 filing fee that
a litigant paid to bring a case in district court. I[Z. at 336. The purpose of the enactment was “‘to


         4SeeT~m~DE~~~~~E~~~~F~~~~~~~~P~~~~~~~~ES~~~~~~~,
                                                     State of TexasChildandFamilyServicesPlan
for 2005-2009 (2004), Description of Services, Division of          Prevention and Early Intervention,   available   at
 http:/lwww.dfps.state.tx.us/About/State~Pla~2OO5-2OO9~Pla~O4.asp       [hereinafter   “State Plan”].
The Honorable Mike Stafford       - Page 5        (GA-0387)




generate revenue and to help finance state services.“’ Id. at 341 (quoting HOUSE COMM. ON
APPROPRIATIONS,       BILL ANALYSIS, Tex. H.B. 1593, 69th Leg., R.S. (1985)).               Thus, the court
considered “whether a filing fee that goes to state general revenues is an arbitrary and unreasonable
interference with the right of access to the court.” IcZ. It stated that “[tlhe major defect with the filing
fee is that it is a general revenue tax on the right to litigate: the money goes to other statewide
programs besides the judiciary.” Id. See Dallas County v. Sweitzer, 88 1 S. W.2d 757,770-7 1 (Tex.
App.-Dallas 1994, writ denied) (finding unconstitutional sheriffs fee and court reporter’s fee
collected by court clerk and deposited in county general fund where funds could be spent on
programs other than the judiciary). While “[clharging litigants that are able to pay a reasonable fee
for judicial s~lpport  services does not violate the open courts provision,” the court pointed out that
nearly all states with similar open courts provisions had found unconstitutional         tiling fees that go
to fund general welfare programs and not court-related services. LeCroy, 713 S.W.2d at 342.

         The LeCroy courtpointed out that Cracker v. Finley, 459 N.E.2d 1346 (Ill. 1984), was
directly on point, and this case is particularly relevant to the question before us. The Texas Supreme
Court summarized the Illinois case as follows:

                [I]n Cracker v. Finley, the Illinois Supreme Court considered the
                constitutionality of a $5 fee in divorce suits to finance a statewide
                domestic violence shelter program. The Illinois Supreme Court held
                that the $5 charge was a tax, and not a fee, because the charge had no
                relation to the judicial services rendered and was assessed to provide
                general revenue.

LeCroy, 713 S.W.2d at 341 (citations omitted). “The specific program was laudable, but the
 [Illinois] court held the act violated its open courts provision,” stating that “‘[ilf the right to obtain
justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general
revenue through charges assessed to those who would utilize our courts.“’ Id. at 342 (quoting
 Cracker, 459 N.E.2d at 1351).

         In a 1997 opinion relying in part on LeCroy, the Louisiana Supreme Court invalidated a
statute imposing a court filing fee in certain city courts to benefit Safety Net for Abused Persons, or
“SNAP,” a domestic violence program and shelter serving a Louisiana parish. See Safety Netfir
Abused Persons v. Segura, 692 So. 2d 1038 (La. 1997). The fee was to be deposited in a special
fund to benefit SNAP, which provided “a myriad of laudable services for victims of domestic abuse,
the primary ones being shelter, counseling and information for abuse victims.” Safety Net, 692 So.
2d at 1043. “However, these services have no logical connection to the judicial system. SNAP is
not a part of the judicial branch, it serves no judicial or even quasi-judicial function, it is not a
program administered by the judiciary, and it is not a link in the chain of the justice system.” Id. at
1043-44. Thus, collecting the fee from litigants violated the right of access to the courts. See id.

         On the basis of LcCroy we conclude that the provisions of Government Code section 5 1.961
requiring filing fees to be collected and allocated to a state agency’s programs violates the open
courts provision of the Texas Constitution. No statute allocates the filing fees subject to section
5 1.961(g) for court-related purposes for support of the judiciary. The language of section 51.961(g)
differs from other tiling fee provisions that expressly allocate the fees to court-related purposes. See
The Honorable Mike Stafford           - Page 6           (GA-0387)




TEX. GOV’T CODEANN. $3 11 .O11 (Vernon 2005) (words and phrases shall be construed according
to the rules of common usage). For example, Government Code section 5 1.702(a) provides that “in
addition to all other fees authorized or required by other law, the clerk of a statutory county court
shall collect a $40 filing fee in each civil case filed in the court to be used for court-related purposes
for the support of the judiciary.” Id. 9 5 1.702(a). The fees collected under this section are sent to
the comptroller for deposit in “the judicial fund,” id. 0 5 1.702(d), a separate fund in the state treasury
to “be used only for court-related purposes for the support of the judicial branch of this state.” Id.
4 21.006 (Vernon 2004). See also TEX. Lot. GOV’T CODEANN. 3 133.15 l(c)( 1) (Vernon Supp.
2005) (certain civil fees in district court shall be allocated to “the judicial fund to be used for court-
related purposes for the support of the judiciary”).

         Pursuant to section 40.102(a) of the Human Resources Code, the trust account is to be used
to “offer resources for community primary prevention programs,” such as the counseling, short term
residential care, and other prevention activities provided by the Services to At-Risk Youth program.
TEX. HUM. RES. CODE ANN. 5 40.102(a) (Vernon Supp. 2005). Section 40.106(b) provides that
administrative and other costs, subject to the limit established by section 40.104, “shall be taken
from the operating fund” derived from the child abuse and neglect prevention trust account. Id. $j
40.106(b).     Thus, filing fees placed in the trust account may be spent for the department’s
administrative costs, an expenditure that is clearly not for court-related purposes. See id. These fees
are also to be spent for state programs directed at preventing child abuse and neglect before it occurs,
programs that have no apparent connection with the judiciary. The filing fees in question are not
designated for court-related purposes.

         We note that Attorney General Opinion GA-0231 (2004) addressed the constitutionality
under Texas Constitution, article I, section 13 of the fee collected under section 51.961(d) “for
deposit in the county treasury to the credit of the family protection account.” TEX. GOV’T CODE
ANN. 8 51.961(d) (V emon Supp. 2005); see generally Tex. Att’y Gen. Op. No. GA-023 1 (2004).
Section 5 1.961(d) authorizes the commissioners court to use the account to “provide funding to a
nonprofit organization that provides services described by Subsection (e).” TEX. GOV’T CODE ANN.
$ 51.961(d) (V emon Supp. 2005). When Attorney General Opinion GA-0231 was issued, the
section 51.961(e) services consisted of “family violence prevention, intervention, mental health,
counseling, legal, and marriage preservation services to families that are at risk of experiencing or
that have experienced family violence or the abuse or neglect of a child.“5 Act of June 1,2003,78th
Leg., R.S., ch. 198,$2.165(a), 2003 Tex. Gen. Laws 611,711 (adopting Government Code section
5 1.96 1(e)); see &so Tex. Att’y Gen. Op. No. GA-023 1 (2004) at 1. Attorney General Opinion GA-
023 1 concluded that collecting the fee did not violate the constitution, but that the “familyprotection
fee revenues maybe used for court-related purposes only,” and that “[a] county commissioners court,
which has sole authority to distribute the fee revenues, must determine whether a particular use is
court related.” See Tex. Att’y Gen. Op. No. GA-023 1 (2004) at 4. Thus, Attorney General Opinion



          5Government Code section 5 1.961(e), as amended in 2005, allows a service provider who receives funds under
section 5 1.96 1(d) to “provide family violence nlzn child oDuse prevention, intervention, family strengthening, mental
health, counseling, legal, and marriage preservation ser\aices to families that are at risk of experiencing or that have
experienced family violence or the abuse or neglect of a child.” TEX. GOV’T CODEANN. $ 5 1.961(e) (Vernon Supp.
2005), as amended by Act of May 29,2005,79th       Leg., R.S., ch. 268, 6 1.66,2005 Tex. Gen. Laws 621,654 (additions
emphasized).
The Honorable Mike Stafford      - Page 7       (GA-0387)




GA-023 1 construed section 5 1.961 consistently with the constitution. See Proctor v. Andyews, 972
S.W.2d 729, 735 (Tex. 1998) (“Statutes are given a construction consistent with constitutional
requirements, when possible, because the legislature is presumed to have intended compliance with
[the constitution.]“), Brady v. Fourteenth Court of Appeals, 795 S. W.2d 712,7 15 (Tex. 1990); see
also TEX. GOV’T CODEAnn. 0 311.021(l) (Vernon 2005).

         We are not able to give a constitutional construction to the provisions governing the one-half
of the fee collected under section 5 1.96 1 and eventually distributed to the Department of Family and
Protective Services. Attorney General Opinion GA-023 1 dealt with a single entity vested with the
authority necessary to insure that its fee revenues were allocated to constitutionally authorized
purposes. The commissioners court imposes the fee and is responsible for spending it to fund
services directed at preventing family violence and child abuse. See generally Weber v. Sachse, 59 1
S.W.2d 563 (Tex. Civ. App.-Dallas 1979, writ dism’d); TEX. Lot. GOV’T CODE ANN. 08 111.010,
111.041 (Vernon 1999) 4 111.070 (Vernon Supp. 2005) (commissioners court’s authority over
budget). The commissioners court moreover routinely budgets funds to support the judiciary. See
TEX. GOV’T CODE ANN. $ 26.008 (Vernon 2004) (excess court costs returned by comptroller to
county must be used only for court-related purposes), TEX. Lot. GOV’T CODEANN. 5 291.001(3)
(Vernon 2005) (commissioners court shall maintain the courthouse). At the county level, control
over the funds at issue is vested in a single entity with broad authority over county expenditures,
including authority to budget funds for the judiciary.

         In contrast, authority over the filing fee revenues intended for the department is not
concentrated in one governmental entity. The county collects the fee and transfers half of it to the
comptroller for placement in the trust account fund in the general revenue fund. This account also
includes the revenues from issuing marriage licenses and declarations of informal marriage, funds
that are not subject to article I, section 13, and no provision of law separates the filing fee revenues
from other revenues in the trust account fund. See TEX. LOC. GOV’T CODE ANN. 5 118.022 (Vernon
Supp. 2005) ($12.50 of each fee for issuing amairiage license and a declaration of informal marriage
shall be placed in child abuse and neglect prevention trust fund account). The department’s authority
over the trust account fund is limited by legislative appropriation and by the legislation governing
its expenditure. See TEX. HUM RES. CODEANN. $5 40.102, 40.105(b), 40.106(b) (Vernon Supp.
2005). No one entity has broad authority over the expenditure of the filing fees in question. Under
these circumstances, legislation rather than reliance on rules of statutory construction is necessary
to ensure that these fees are used only for court-related purposes.

         Moreover, money from the trust fund account is appropriated to the department to be used
only for “child abuse and neglectprinzary prevention programs,” including administrative expenses.
See id. 5 40.105 (emphasis added); see also id. $9 40.102,40.106(b).     The provisions governing use
of the trust fund account were adopted in 2001, at a time when no filing fees were placed in the fund.
See Act of May 25, 2001, 77th Leg., R.S., ch. 957, 9 1, 2001 Tex. Gen. Laws 1916, 1916-18
(adopting sections 40.101-. 107 ofthe Human Resources Code). The legislature had no reason at that
time to allocate the trust fund account for court-related purposes. In contrast, provisions authorizing
the county family protection fee and providing for its expenditure were part of the same enactment.
See Act of June 1, 2003, 78th Leg., R.S., ch. 198, $ 2.165(a), 2003 Tex. Gen. Laws 611, 711
(adopting Government Code section 5 1.961).
The Honorable Mike Stafford      - Page 8       (GA-0387)




         The county family protection fee at issue in Attorney General Opinion GA-023 1 may be used
for services “to families that are at risk of experiencing or that have expeviencedfamiZy violence or
the abuse OY neglect of a child.” TEX. GOV’T CODE ANN. 3 51.961(e) (Vernon Supp. 2005)
(emphasis added). This language authorizes the county to use the filing fees to fund a broad range
of services, including court-related services. The department’s authority to spend its share of the
filing fees is much narrower, encompassing only primary prevention programs, which may not even
include court-related services.     Accordingly, we conclude that section 5 1.961(g) imposes an
unconstitutional burden on a litigant’s right of access to the courts in violation of article I, section
13.
The Honorable Mike Stafford        - Page 9      (GA-0387)




                                         SUMMARY

                         Government Code section 5 1.961(g), as amended by the
               Seventy-ninth Legislature, requires one-half of a fee collected in a
               suit for dissolution of marriage to be deposited to the credit of the
               child,abuse and neglect prevention trust fund account, which is used
               to fund child abuse and neglect prevention programs carried out by
               the Department of Family and Protective Services. Pursuant to the
               open courts provision of the Texas Constitution, article I, section 13,
               filing fees may only be used for judicial support services. Section
               5 1.96 1(g) allocates filing fees to purposes other than judicial support
               services and therefore imposes an unconstitutional           burden on a
               litigant’s right of access to the courts in violation of article I, section
               13.




                                                Attor&&&eral       of Texas



BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
