  OFFICEOFTHEATTORNEY
                   GENERALSTATE
                              OFTEXAS
  JOHN CORNYN




                                           August 11, 1999




The Honorable David P. Weeks                        Opinion No. JC-0094
Walker County Criminal District Attorney
P.O. Box 1659                                       Re:     Whether a district clerk may, pursuant
Huntsville, Texas 77342                             to court order, decline to tile divorce petitions
                                                    of inmates who attempt to satisfy the county
                                                    residency   requirement   of section 6.301 of
                                                    the Family Code based on time served in prison
                                                    (RQ-0020)


Dear Mr. Weeks:

         Section 6.301 of the Family Code provides that a suit for divorce may not be maintained
unless either the petitioner or the respondent has been “a resident of the county in which the suit is
tiled for the preceding go-day period.” TEX. FAM. CODE ANN. 4 6.301(2) (Vernon 1998). You ask
whether a district clerk may, pursuant to court order, decline to tile divorce petitions “where the
residency requirement is based on time served in prison.” Letter from Honorable David P. Weeks,
Criminal District Attorney, Walker County, to Honorable John Comyn, Attorney General
(Jan. 22, 1999) (on file with Opinion Committee). We understand that there is no such court order
currently in effect. Generally, a district clerk’s authority to tile pleadings is ministerial rather than
discretionary.   A district clerk is not authorized to refuse to tile inmate divorce petitions. While a
district judge may have the authority to order a district clerk to refuse to file inmates’ divorce
petitions, there may be constitutional and practical limitations for such an order. However, a
carefully crafted administrative        order implementing      procedures    to identify and dismiss
unmaintainable     inmate divorce petitions on an expedited basis would pass constitutional muster.

         We begin with a brief review of the residency requirement, relevant case law, and related
statutes. Section 6.301 of the Family Code provides that a suit for divorce may not be maintained
in this state unless either the petitioner or the respondent has been a domiciliary of Texas for the
preceding six months and “aresident of the county in which the suit is filed for the preceding go-day
period.” TEX. FAM. CODE ANN. 5 6.301 (Vernon 1998). A version of this residency requirement
The Honorable     David P. Weeks        - Page 2          (X-0094)




has been in effect since 1873,’ although the duration of the residency periods has been shortened
over time.’ Section 6.301 is a 1997 codification of former section 3.21 of the Family C0de.j

         Courts have construed the county residency requirement to require “‘an actual, physical,
continuous living in the county of suit by one of the parties for the period specified, coupled with
a good-faith intent to make that county home.“’ Cookv. Mayfield, 886 S.W.2d 840,842 (Tex. App.-
Waco 1994, no writ) (quoting Beavers v. Beavers, 543 S.W.2d 720, 721 (Tex. Civ. App.-Waco
1976, no writ)). The requirement is not jurisdictional, but deals with the right to maintain suit. See
id. at 841; McCaskill v. McCaskill, 761 S.W.2d. 470, 472 (Tex. App.-Corpus Christi 1988, writ
denied). It prescribes a qualification that must be met before the trial court is authorized to grant a
divorce. McCaskill, 761 S.W.2d. at 472 (citing cases). Because the residency requirement protects
the interests of the state as well as the parties, it cannot be waived. See Berry v. Beny, 612 S.W.2d
213,216 (Tex. Civ. App.-Beaumont          1980, writ dism’d). The proper method for aparty to contest
residency is through a plea of abatement.        Cook, 886 S.W.2d at 841. It appears that a court may
dismiss a divorce action sua sponte on the grounds that the residency requirement is not met. See,
e.g., In reMarriage ofEarin, 519 S.W.2d. 892 (Tex. Civ. App.-Houston [lst Dist.] 1975, no writ).

         We have found only one judicial opinion applying the county residency requirement to a
prison inmate, In re Marriage of Earin. This case does not suggest that an inmate will never be able
to maintain a divorce action in the county of incarceration. Rather, it suggests that in some cases an
inmate may be able to prove residency in the county where he or she is incarcerated and establish
the right to maintain a divorce action in that county.

         In In re Marriage of Earin, an appellate court considered the trial court’s dismissal of a
divorce action tiled in Brazoria County by an inmate of a state prison located in that county who had
been incarcerated for a period of time exceeding the length of the county residency requirement
established by former section 3.21 of the Family Code. See id. at 892. The inmate’s wife was a
resident of Louisiana. Id. The trial court dismissed the action based on the inmate’s testimony that
he had resided in Bexar County prior to his incarceration, intended to return to Bexar County upon
his release, and never intended to make Brazoria County his residence. See id. at 892-93. After
opining that the county residency requirement for divorce actions “‘require[s] more than a mere
temporary abiding of one in a county”’ and that a party’s physical presence in a county must be
“‘accompanied by his good faith and intention then to remain and permanently and definitely to
make that county his home, “’ id. (quoting Randle v. Randle, 178 S.W.2d 570, 572 (Tex. Civ.



       ‘ActapprovedMay27,1873,13thLeg.,ch.            74,s 1,1873Tex.Gen.Laws        117,reprintedin7H.P.N.G~~~~~,
THE LAWS OF TEXAS 1822.1897, at 569 (Austin,        Gammel Book Co. 1898).

           ‘Former section 3.21 of the Family Code was amended, effective January 1, 1974, to shorten the state
domiciliary requirement from one year to six months and the county residency requirement from six months to ninety
days. See Act of May 28, 1973,63d Leg., R.S., ch. 577,s 13, 1973 Tex. Gen. Laws 1596, 1603.

           ‘See Act of Apr. 3,1997,75th Leg., R.S., ch. 7,§§ 1 (enacting title 1 of the Family Code), 3 (repealing   former
title 1 of the Family Code), 1997 Tex. Gen. Laws 8,43.
The Honorable   David P. Weeks - Page 3          (X-0094)




App.&alveston       1944, no writ)), the court affirmed the dismissal on the basis of the inmate’s
testimony, stating “It is clear from the appellant’s testimony that he has had no intention and does
not have any present intention to make Brazoria County his residence.” Id. But while noting that
this inmate’s testimony established that he was not a bona fide resident of Brazoria County, the court
went on to observe that an inmate could become a resident in the county where he is incarcerated
ifhe intends to reside there permanently. See id. (“This is not to say that a prisoner who is domiciled
in the State ofTexas could not become aresident ofthe county where he is incarcerated ifhe intends
to be an inhabitant of that county permanently.“)    The court also suggested that an inmate may be
able to maintain a divorce action in the county where he or she resided at sentencing if he or she has
not abandoned residence there. See id. at 893.

         The enactment of other statutes making provision for state and county residency in special
circumstances, see TEX. FAM. CODE ANN. $5 6.303, ,304 (Vernon 1998), suggests that when the
legislature intends to authorize a person to maintain a divorce action based on temporary abiding
alone, it will do so expressly. Section 6.304 of the Family Code, for example, establishes that a
person serving in the United States armed forces who is stationed at a military installation in Texas
is considered a Texas domiciliary and resident of the county where he or she is stationed for
purposes of maintaining a divorce action. Because there is no analogous statute for inmates, we
believe that the legislature did not intend to provide for county residency based solely on time served
in prison.

        With respect to inmates, section 15.019 of the Civil Practice and Remedies Code, a
mandatory venue statute, provides in subsection (a) that “an action that accrued while the plaintiff
was housed in a facility operated by or under contract with the Texas Department of Criminal Justice
shall be brought in the county in which the facility is located.” TEX. Ctv. PRAC. &REM. CODE ANN.
$ 15.019(a) (Vernon Supp. 1999). It provides in subsection (c) that “[tlhis section does not apply
to an action brought under the Family Code.” Id. 4 15.019(c). Subsection (c) operates to exclude
Family Code actions brought by inmates from the mandatory venue provision established by
subsection (a). Subsection (c) does not foreclose the possibility that an inmate may be able to prove
residency in the county where he or she is incarcerated in order to maintain a divorce action under
section 6.301 of the Family Code.

         In sum, although county residency for purposes of section 6.301 of the Family Code may not
generally be based on a temporary abiding, such as time served in prison, in some cases an inmate
incarcerated in the county may be able to establish county residency based on his or her residency
in the county prior to incarceration or intention “to be an inhabitant of that county permanently.”
See In re Marriage of Earin, 519 S.W.2d. at 893. In addition, in some cases an imnate may be
married to a person who is a county resident and therefore may be able to maintain a suit on that
basis. See TEX. FAM. CODE ANN. 5 6.301 (Vernon 1998) (county residency requirement must be
satisfied by either petitioner or respondent).   Thus, while we agree that “residency may not be
accrued while serving time in prison,” Brief from Kay Douglas, Assistant Criminal District Attorney,
to Honorable John Comyn, Attorney General 2 (Feb. 5,1999) (on tile with Opinion Committee), it
The Honorable    David P. Weeks     - Page 4       (JC-0094)




is not the case that every inmate serving time in the county is necessarily precluded from maintaining
a suit for divorce in the county.

         With this background, we turn to your query: whether a district clerk may, pursuant to court
order, decline to tile divorce petitions of inmates who attempt to satisfy the county residency
requirement for maintaining divorce actions based on time served in prison. We assume that the
district clerk would determine that time served in prison is the sole basis for residency I?om the face
of an inmate’s initial divorce petition.

         Generally, a district clerk has no discretionary authority to refuse to tile a petition. See TEX.
R. CIV. P. 24 (“When a petition is filed with the clerk he shall indorse thereon the file number, the
day on which it was filed and the time of filing, and sign his name to officially thereto.“); see also
Tex. Att’y Gen. Op. No. H-1155 (1978) at 2 (duty of clerk of trial court under rules of civil
procedure to tile pleadings is ministerial, not discretionary) (citing Wagner v. Garrett, 269 S.W.
1030 (Tex. 1925), and Benge v. Foster, 47 S.W.2d 862 (Tex. Civ. App.-Amarillo            1932, writ ref d)).
We are not aware of any statute or rule authorizing a district clerk to refuse to file inmate divorce
petitions, and therefore conclude that a district clerk lacks such authority.

         You indicate that the district clerk would refuse to tile the petitions pursuant to court order.
Again, we understand that there is no such court order currently in effect. An attorney general
opinion is not binding on a court. See Commissioners Court of Titus County v. Agan, 940 S.W.2d
77,82 (Tex. 1997) (“While Attorney General’s opinions are persuasive they are not controlling on
the courts.“). For this reason, were such an order in effect, this office would not review it. In the
absence of such an order and in the interests of providing a complete response to your query, we
respectfully offer the following comments.

         A district judge has the authority to issue an administrative order regarding a district clerk’s
duty to file divorce petitions. See TEX. GOV’T CODEANN. $5 21.001 (Vernon 1988 & Supp. 1999)
(inherent power of courts); 74.093 (Vernon 1998) (district judges authorized to adopt local rules of
administration); see also Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267,268 (Tex. 1996) (per curiam)
(“The [district] clerk is an officer of the court subject to the court’s direction and control in
exercising ministerial duties such as filing documents”) (citing Exparte Hughes, 759 S.W.2d 118,
119 n.1 (Tex. 1988) and Moore v. Muse, 47 Tex. 210,215 (1877)). But a blanket order directing
the district clerk to refuse to file inmate divorce petitions in which county residency appears to be
based on time served in prison would raise constitutional and practical concerns.

         Federal courts have recognized that inmates have a constitutional right to reasonable access
to the courts. See, e.g., Bounds v. Smith, 430 U.S. 817 (1977); Corpus v. Estelle, 551 F.2d 68, 70
(5th Cir. 1977) (Due Process Clause ofthe Fourteenth Amendment assures that prisoners be granted
reasonable access to the courts). This is particularly true of actions, like divorce proceedings, in
which a fundamental interest is at stake, see Corpus, 55 1 F.2d at 70; see also Boddie v. Connecticut,
The Honorable     David P. Weeks        - Page 5         (X-0094)




401 U.S. 371,376 (1971) (divorce actionimplicates fundamental interest)! While we havenotbeen
able to locate a Texas state court case addressing this issue,’ courts of other states have recognized
that inmates have a constitutional right of access to courts for the purpose of tiling divorce actions
and other proceedings relating to family matters. See, e.g., Whitney v. Buckner, 734 P.2d 485,488
(Wash. 1987) (“a prisoner’s due process right of access to the courts includes the right to bring
actions for dissolution of marriage and for related matters”); Hall v. Hall, 341 N.W.2d 206,208-09
(Mich. App. 1983) (“a prisoner . has a due process right ofreasonable access to the courts for the
purpose of obtaining a divorce”). The Texas Legislature appears to have taken this right into account
in drafting chapter 14 of the Civil Practices and Remedies Code, which authorizes a court to impose
reasonable limitations on inmates’ access to courts, see, e.g, TEX. CIV. PRAC. & REM. CODE ANN.
 5s 14.003 (Vernon Supp 1999) (authorizing courts to dismiss frivolous inmate claim if court makes
 certain findings), 14.004 (requiring imnate to file affidavit identifying previous suits filed), but
which expressly excludes actions brought under the Family Code, such as a divorce action, from its
 scope, see id. $5 14.002(b) (“This chapter does not apply to an action brought under the Family
 Code.“), 14.004(a)( 1) (requirement that inmate file affidavit identifying previous suits does not apply
 to previous suits brought under Family Code).

          Additionally, a blanket order authorizing a district clerk to decline to tile inmates’ divorce
petitions solely on the basis of their initial pleadings could deny court access to legitimate claims.
Whether a party is a bona fide county resident, i.e., he or she resided in the county before
incarceration and has not abandoned that residence or intends in good faith to remain in a county and
make it home, is a question for a trier of fact. See In re Marriage of Earin, 519 S.W.2d. at 893
(county residency for purposes of maintaining a divorce action requires both party’s physical
presence and “good faith and intention then to remain.       and make that county his home”). In some
cases, an inmate may be able to convince the court he or she is a county resident. See id. (“This is
not to say that a prisoner who is domiciled in the State of Texas could not become a resident of a
county where he is incarcerated if he intends to be an inhabitant of that county permanently.“)
Furthermore, section 6.301 of the Family Code provides that either the petitioner or the respondent
may satisfy the county residency requirement. See TEX. FAM. CODEANN. 5 6.301 (Vernon 1998).
The fact that an inmate’s spouse resides in the county may not be apparent from the inmate’s initial
petition.




           ‘But see In re MM., 980 S.W.Zd 699,700 (Tex. App.-San Antonio 1998, no pet.) (“While a prisoner has a
constitutional   right of access to the courts,      prisoners have no absolute right to appear personally at civil
proceedings.“)    (citing Nance Y. Nance, 904 S.W.Zd 890,892 (Tex. App.-Corpus Christi 1995, no writ)).

           %I LeFebvre v. LeFebvre, 510 S.W.2d 29 (Tex. Civ. App.-Beaumont          1974, no writ), the court rejected the
claim of a woman who had recently been released from prison who claimed that the predecessor to section 6.301 of the
Family Code violated her rights under the due process and equal protection clauses of the Fourteenth Amendment by
precluding her from filing a divorce action following her release for the duration of the residency period. The appellant
was not an inmate at the time she tiled the challenge and we do not believe this case is relevant to an inmate’s right to
tile a divorce proceeding.
The Honorable    David P. Weeks - Page 6          (JC-0094)




         In sum, given the constitutional issues involved and the practical difficulty of assessing
whether an inmate may be able to establish county residency from the face of a divorce petition, we
question the advisability of a blanket order directing the district clerk to refuse to file inmate divorce
petitions in which the residency requirement appears to be based on time served in prison. On the
other hand, because “[plrisoners possess no constitutionally-protected             right to file frivolous
lawsuits,” Hicks Y. Brysch, 989 F. Supp. 797,821 (W.D. Tex. 1997) (citing Johnson v. Rodriguez,
llOF.3d 299,310-13,316       (5thCir. 1997)), we believe that a carefully crafted administrative order
implementing    procedures to identify and dismiss umnaintainable           inmate divorce petitions on
an expedited basis would pass constitutional muster. See, e.g., TEX. CIV. PRAC.&REM. CODEANN.
5 14.003 (Vernon Supp. 1999) (authorizing acourt to dismiss frivolous inmate claim ifcourt makes
certain findings); see also Hicks, 989 F. Supp. at 822 (holding that procedural prerequisites of
TEX. CIV. PRAC. & REM. CODE ANN. ch. 14 do not impermissibly restrict inmates’ right to court
access); Thomas v. Wichita Gen. Hosp. 952 S.W.2d 936 (Tex. App.-Fort Worth 1997, pet. denied)
(upholding constitutionality of TEX. CIV. PRAC.& REM. CODEANN. $ 14.004).
The Honorable   David P. Weeks     - Page 7       (X-0094)




                                         SUMMARY

                         A district clerk is not authorized to refuse to tile inmate
                divorce petitions. A district judge may have the authority to order a
                district clerk to refuse to file inmate divorce petitions that attempt to
                satisfy the county residency requirement of section 6.301 of the
                Family Code based on time served in prison, but a blanket order
                authorizing a district clerk to decline to file such divorce petitions
                would raise constitutional concerns and may be impracticable given
                that in some cases an inmate may be able to establish that he or she
                is a bona tide resident of the county. However, a carefully crafted
                administrative order implementing procedures to identify and dismiss
                umnaintainable inmate divorce petitions on an expedited basis would
                pass constitutional muster.

                                                Your   very ruly,



                                               d&CT
                                                JOHhr    CORNYN
                                                Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERV’iN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
