                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                                 May 5, 2014



The Honorable Susan Combs                          Opinion No. GA-l 055
Texas Comptroller of Public Accounts
Post Office Box 13528                              Re: The scope of subsection 51.607(a) of the
Austin, Texas 78711-3528                           Government Code concerning the Comptroller of
                                                   Public Accounts' identification of new or changed
                                                   court costs and fees (RQ-1162-GA)

Dear Comptroller Combs:

      You ask about the scope of the Comptroller's duties under subsection 51.607(a) of the
Government Code. 1 Subsection 51.607(a) provides:

                Following each regular session of the legislature, the comptroller shall
        identify each law enacted by that legislature, other than a law disapproved by the
        governor, that imposes or changes the amount of a court cost or fee collected by
        the clerk of a district, county, statutory county, municipal, or justice court from a
        party to a civil case or a defendant in a criminal case, including a filing or
        docketing fee, jury fee, cost on conviction, or fee or charge for services or to
        cover the expenses of a public official or agency. This subsection does not apply
        to attorney's fees, civil or criminal fines or penalties, or amounts charged, paid, or
        collected on behalf of another party to a proceeding other than the state in a
        criminal case, including restitution or damages.

TEX. Gov'T CODE ANN. § 51.607(a) (West Supp. 2013). Under subsection 51.607(b), no later
than August 1 after the end of each regular legislative session, the Comptroller is required to
publish in the Texas Register a list of each court cost or fee identified pursuant to subsection
51.607(a). ld. § 51.607(b). Under subsection 51.607(c), "[n]otwithstanding the effective date of
the law imposing or changing the amount of a court cost or fee included on the list, the
imposition or change in the amount of the court cost or fee does not take effect until the next
January 1 after the law takes effect." ld. § 51.607(c).

        1
          See Letter from the Office of the Tex. Comptroller of Pub. Accounts to Honorable Greg Abbott, Tex. Att'y
Gen. at 3 (Nov. 5, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Susan Combs - Page 2             (GA-1055)




         You state that the Eighty-third Legislature enacted House Bill 1513 ("H.B. 1513"), which
among other amendments temporarily increased from $5 to $10 the "Records Management and
Preservation Fee" (the "RMP fee") authorized by subsection 118.011(b)(2) of the Local
Government Code. Request Letter at 2; Act of May 23, 2013, 83rd Leg., R.S., ch. 927, § 1.04,
2013 Tex. Gen. Laws 2302, 2305. You explain that the Comptroller, pursuant to her duty under
subsection 51.607(b), "included [H.B. 1513], and in particular the increase in the [RMP fee] , in
the list it published in the Texas Register." Request Letter at 2. You state that, in response to the
Comptroller's including the amendment to section 118.011 on the list, a question has arisen as to
whether subsection 51.607(a) applies only to court costs and fees that are collected by the clerk
of one of the listed courts, and not to other, non-court-related costs or fees. !d. You assert that
the Comptroller "has historically interpreted Section 51.607(a) to apply to two different
categories of costs and fees:"

       (1) "court cost[s] or fee[s] collected by the clerk of a district, county, statutory
           county, municipal, or justice court from a party to a civil case or a defendant
           in a criminal case, including a filing or docketing fee, jury fee, cost on
           conviction ... ";and

       (2) "fee[s] or charge[s] for services or to cover the expenses of a public official or
           agency."

Id at 1-2 (quoting subsection 51.607(a)). You ask us to clarify the scope of subsection
51.607(a) because, as you explain, a court cost or fee excluded from or included in the Texas
Register incorrectly "may cause a court cost or fee to be collected prematurely or . . . after its
intended collection date." !d. at 3.

        The primary goal in statutory construction is to determine and give effect to legislative
intent as expressed by the plain language of the statute, which is presumed to have been
deliberately and purposefully selected by the Legislature. Tex. Mut. Ins. Co. v. Ruttiger, 381
S.W.3d 430, 452 (Tex. 2012). To that end, words and phrases are "read in context and construed
according to the rules of grammar and common usage." TEX. Gov'T CODE ANN. § 311.011
(West 2013). An agency's interpretation of a statute it is charged with enforcing or applying is
entitled to "serious consideration," so long as the construction is reasonable and does not conflict
with the statute's plain language. R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future and
Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).

        The first sentence of subsection 51.607(a) directs the Comptroller to identify laws "that
impose[] or change[] the amount of a court cost or fee . . . . " TEX. Gov'T CODE ANN.
§ 51.607(a) (West Supp. 2013). Modifying "a court cost or fee" is the phrase co Uected by the
clerk of a district, county, statutory county, municipal, or justice court from a pruty to a civil case
or a defendant in a criminal case ...." !d. The next word in the sentence 'inc luding,'' is
defined by the Code Construction Act as a term of "enlargement and not of limitation," and it is
used here to indicate that the list that follows it modifies or is illustrative of what came before it.
!d. § 311.005(13) (West 2013); see Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26
(Tex. App.-Tyler 2000, pet. denied) (applying the definition of "including" under the Code
The Honorable Susan Combs - Page 3              (GA-1055)



Construction Act). Thus, "a filing or docketing fee, jury fee, cost on conviction, or fee or charge
for services or to cover the expenses of a public official or agency" represents an illustrative list
of the types of court costs or fees to which subsection 51.607(a) applies. TEX. Gov'T CoDE ANN.
§ 51.607(a) (West Supp. 2013).

        You indicate that the Comptroller has interpreted the phrase "fee or charge for services or
to cover the expenses of a public official or agency" to describe a separate category of fees that
must be included on the list in the Texas Register. Request Letter at 2. However, that phrase is
preceded by the disjunctive "or," indicating that it is the last of four examples meant to illustrate
"a court cost or fee collected by the clerk of [the specified courts] from a party to a civil case or a
defendant in a criminal case." TEX. Gov'T CODE ANN. § 51.607(a) (West Supp. 2013). The
phrase is not a separate category unto itself. In sum, the plain language of subsection 51.607(a)
does not describe two categories of costs and fees, but just one: a "court cost or fee" as modified
and illustrated by the phrases that follow it.

        Moreover, section 51.607 as a whole describes costs or fees that are judicial in nature. In
subsection 51.607(a), the phrase "court cost or fee" means a court cost or a court fee, and it
includes only those costs and fees collected in one of five different courts in relation to a civil or
criminal case. The illustrative list of court costs and fees is comprised of court-related costs and
fees. This language excludes costs or fees associated with non-court-related filings. Likewise,
the second sentence of subsection 51.607(a) describes the costs and fees that are not' subject to
the statute, and they are all judicial in nature. See id § 51.607(a). Further, subsection 51.607(b)
requires simply that the Comptroller prepare a list "of each court cost or fee covered by
Subsection (a)," and the phrase "court cost or fee" is referenced five times throughout section
51.607. Id § 51.607(a)-(c) (emphasis added). Therefore, both the plain language and a
contextual reading of subsection 51.607(a) lead to the conclusion that it applies only to court-
related costs or fees.

         Section 118.011 of the Local Government Code is found in subchapter B of chapter 118,
titled "Fees of County Clerk Other Than Court Fees," and sets out a county clerk's fee schedule
for several non-court-related fees. TEX. Loc. Gov'TCODEANN. § 118.011(a) (West Supp. 2013)
(listing, for example, fees for filing real property records, a birth or death certificate, and a
marriage license). It permits a clerk to set and collect the RMP fee "for the records management
and preservation services performed by the county clerk after the filing and recording of a
document in the records of the office of the clerk." Id §§ 118.0ll(b)(2), .0216(a). Because the
RMP fee authorized under section 118.011 relates to non-court-related filings, it does not fall
within the scope of the Comptroller's duties under subsection 51.607(a).

        This office, like a court, affords "serious consideration" to the Comptroller's reading of
subsection 51.607(a) because the Comptroller is the official charged with implementing that
statute. R.R. Comm 'n of Tex., 336 S.W.3d at 624; TEX. Gov'T CoDE ANN. § 51.607(a)--(b)
(West Supp. 2013). Nevertheless, when the implementing official's interpretation of a statute
conflicts with the statute's plain language, as is the case here, we cannot defer to the
implementing official's view and must advise that the statute's plain language should be
enforced.
The Honorable Susan Combs - Page 4          (GA-1055)



                                     SUMMARY

                     The plain language of Government ode sub ection
              5l.607(a) applies only to court-related costs and :fees. The Records
              Management and Preservation Fee auth rized under Local
              Governme11t 'ode subsection 118.01l(b) relates to the filing o:f
              non-court-related documents. It therefore does not fall within the
              scope ofthe Comptroller's duties under subsection 51.607(a).

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee
