                                    The Attorney General of Texas
                                                       October    24,   1984
JIM MATTOX
Attorney General


Supreme Court Bullding
                                  Eonorable Mike Driszoll                            Opinion No.       JM-216
P. 0. BOX 12548                   Harris County Attorwy
Austin, TX. 7871% 2543            1001 Preston, Suite 634                            Re:   Whether a district  clerk
512/4742501                       Boueton,  Texas   7 7,102                          must docket a transferred  case
Telex 9101874.lM7
                                                                                     before the filing  fee is paid
Telecopier  5W475.0266

                                  Dear Mr. Driscoll:
714 Jackson. Suite 700
Dallas. TX. 75202.4508                   You have requested      our opinion  regarding  a procedural  matter
                                  under the Texas Rules of Civil Procedure.        You ask whether the Harris
2141742-0944

                                  County district      ,::Lerk is required   to assign    and docket  a case
4824 Alberta    Ave.. Suite 180   transferred    to his county pursuant to rule 89 before a filing     fee is
El Paso, TX. 7SSO5-2793           paid.    You have a:lllo asked how such a case may be dismissed if such
915m3aS4                          filing   fee is not p~nid.

  IO1 Texas, Suite 700
                                        Rule 89 of t:>e Texas Rules of Civil     Procedure   sets out the
.,ous,on, TX. 77002.3111          procedural  steps required when a case has been transferred    to another
7131223-5888                      county under a transfer of venue.   Portions of the rule follow:

                                                 If a mation to transfer venue is sustained,                  the
800 Broadway. Suite 312
Lubbock. TX. 79401-3479
                                             cause shall not be dismissed,              but the court shall
808/747-5233                                 transfer      said cause to the proper court;               and the
                                             costs     incurred prior         to the time such suit is
                                             filed      in the court           to which said          cause    is
43OS N. Tenth. Suite S
                                             transferred       shall be taxed against the plaintiff.
,&Alla”,  TX. 7SMl~lSSS
512IS82-4547
                                             The clerk shall make up a transcript                   of all the
                                             orders      :n;lde in said        cause,    certifying      thereto
                                             officially       under the seal of the court,             and send
200 Main Plaza. Suits 400
                                             it with l:he original           papers in the cause to the
San Antonio. TX. 782052797
                                             clerk 01’ the court to which the venue has been
 5121225-4191
                                             changed. . . .            After      the     cause      has    been
                                             transferred,        as above provided for the clerk of
                                             the court to which the cause has been transferred
                                             shall ~.il        notification      to the plaintiff         or his
                                             attorney       that transfer        of the cause has been
                                             completed, that the filing             fee in the proper court
                                             is due and payable within thirty                   days from the
                                             mailing cf such notification.                and that the case
                                             may be tlj.smissed if the filing              fee is not timely
                                             paid; and if such filing             fee is timely paid, the
                                             cause will be subject            to trial at the expiration




                                                                 p.. 969
Ronorable    Mike Driscoll         - Page 2    (J&216)




             of thirty     days a:f,:er the mailing Of notification
             to the parties      ox their attorneys   by the clerk
             that the papers h,ave been f,iled in the court to
             which the cause has been transferred;       and if the
             filing    fee is not timely paid, any court       of the
             transferee     county to which the case might have
             been assigned,     upon its own motion or the motion
             of     a party,    ma:{ dismiss     the cause    without
             prejudice    to the refiling   of same.

Tex. R. Civ.        Proc.    89.

       It is our opinion th#%,: rule 89, when read in conjunction               with
article   3927, V.T.C.S.,    door! not require the district        clerk to assign
and docket a case transferred          under a transfer       of venue until      the
required filing      fee of $23.00 Is paid.        Under rule 89, the clerk of
the court to which a caho is transferred                is required      to receive
certified    copies of the papers. files        and orders entered in the case
and to notify the plaintifE,,       that the case has been “transferred”          and
that a filing     fee is due.   l,f  the filing   fee is  not   paid,  any district
court “to which the case might have been assigned” may dismiss the
cause.     This last phrase, contained in rule 89, we believe,              implies
that the case is not “assigned,”          that is, placed on the docket of a
particular    court, before the filing       fee is paid.

       In any event,    article 3927, which controls   in the event of a
conflict   with a rule of procedure promulgated by the supreme court,
clearly   provides  that an ixtion   cannot be docketed before the filing
fee is paid.     The statute yovides   as follows:

                 The clerks        of .rhe district     courts shall   receive
              the following        fers for their      services:

                  (1) The fees in this Subsection   shall be due
              and payable, and shall be paid at the time suit or
              action is filed.

                  For each sd.t   filed,  including appeals  from
              inferior  courts . . . . . . . . . . . . . $25.00.

 V.T.C.S.    art.    3927.

         With regard to your inquiry concerning the manner of dismissal of
 cases    for which filing fees are not paid, we believe that any district
 judge    of a court in the transferee   county ro which the case might have
 been    assigned would have the authority under rule 89 to enter an order
 that    the case is dismissed,   notwithstanding  the fact that it has not
 been     assigned  to any particular      court within  that county.    -See




                                              p. 970
lionorable   Mike Driscoll     - Pqe      3     (m-216)




V.T.C.S.  art.   199a        (authority        for     local   rules   relating   to   the
assignment of cases).

                                       SUMMARY

                Cases transfermd    under a change of venue need
             not be assigned and docketed      in the transferee
             county until a fi:L:ing fee is paid.




                                                       JIM     MATTOX
                                                       Attorney General of Texas

TOMGREEN
First Assistant     Attorney    Gaxral

DAVID R. RICHARDS
Btecutive Assistant Attorne?           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 Moellinger
Nancy Sutton




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