How much can a Texas court charge to file a protective order?

Plain-English summary

A county attorney asked the Attorney General two questions about the fees for a family-violence protective order. First, under section 71.04(e) of the Family Code, could a court clerk charge an applicant more than $36 when several people had to be served, or when the server had to make repeated attempts to serve someone? Second, under Texas Rule of Civil Procedure 145, did an applicant who already received a government benefit based on poverty still have to list all of their other income and assets in an affidavit of inability to pay?

On the first question, the office said no. Section 71.04(e) sets the total at $36, the $16 filing fee plus the $20 fee for serving notice, and the statute's third sentence says the total "may not exceed $36 under any circumstances." That cap is absolute. It holds even when several abusers must each be served or when the server has to try more than once, situations the office acknowledged cost the county more than $36. The legislative history backed the plain words: the bill's author said the amendment was meant to confirm that the filing fee would not exceed $16 and the service fee would not exceed $20 under any circumstances. On the second question, the office said the applicant must still fill out the complete Rule 145 affidavit. The rule defines a person "unable to afford costs" to include someone receiving an indigency-based government benefit, but it separately requires the affidavit to contain complete information on every item in its paragraph 2 (income, property, dependents, debts, expenses, and so on), so the applicant could not skip those details just because they receive a benefit.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas later recodified its family-violence protective-order law (Family Code chapter 71 provisions moved into title 4, and protective-order filing fees and service rules have been amended, including provisions waiving fees for many family-violence applicants), and Texas Rule of Civil Procedure 145 was substantially rewritten. The dollar figures and section numbers here reflect the law as it stood in 1994. Read this page for the office's reasoning, and verify the current fee and affidavit rules before relying on any specific amount.

What the opinion meant for those who asked

For court clerks: The opinion concluded a clerk could not charge a protective order applicant more than $36 total (the $16 filing fee plus the $20 service fee), even when several respondents had to be served or service was attempted repeatedly. It also concluded the clerk should require a complete Rule 145 affidavit from an applicant claiming inability to pay.

For people seeking a protective order: The opinion treated $36 as the absolute ceiling on filing and service fees, and explained that an applicant who could not pay had to file a sworn affidavit of inability to pay with all the financial details Rule 145 lists, not just proof of receiving an indigency-based benefit.

Common questions

How much could a Texas court charge to file a family-violence protective order?
Under this opinion, no more than $36 total: $16 to file plus $20 for service. The cap applied no matter how many respondents had to be served or how many service attempts were made.

What if the applicant could not afford the $36?
The applicant could file an affidavit of inability to pay under Rule 145, but the office concluded the affidavit had to include all the financial information paragraph 2 of the rule lists, not just a statement of receiving an indigency-based benefit.

Did the fee go up if there were several abusers to serve?
No. The office concluded section 71.04(e) capped the total at $36 regardless of the number of respondents or the number of service attempts.

Background and statutory framework

Title 4 of the Family Code, enacted in 1979, addresses family violence, and chapter 71 governs protective orders. A proceeding starts when a person files an application with the clerk (Family Code § 71.02; see §§ 71.03-.05 on venue, who may file, and contents). Section 71.04(e) sets the filing fee at $16 and, except for the service fee allowed by section 71.07, bars the clerk from assessing any other fees; section 71.07(i) caps the service fee at $20 in person (or the cost of postage by registered or certified mail). Section 71.07 also entitles each alleged abuser to service (subsection (a)) and lets the applicant choose in-person or mail service, so a single application can require multiple services or repeated attempts.

The office traced the fee history: in 1979 the law set a $16 filing fee but did not limit service charges, so clerks added court costs and service fees, pushing the total high enough that many poor applicants could not afford to apply. In 1987 the legislature barred clerks from assessing fees beyond the section 71.07 service fee (Acts 1987, 70th Leg., ch. 1090), the provision was renumbered as subsection (e) in 1989 (Acts 1989, 71st Leg., ch. 614), and in 1991 Senate Bill 1149 added the sentence capping the total at $36 "under any circumstances." Reading that plain language together with the author's hearing testimony, the office concluded the $36 cap is absolute. On the second question, the office relied on the text of Rule 145, which both defines who is "unable to afford costs" and separately requires a complete affidavit, citing a dissenting opinion that had treated an entitlement recipient as unable to afford costs as a matter of law (Cronen v. Smith, 812 S.W.2d 69, 75 (Tex. App.—Houston [1st Dist.] 1991, no writ) (Mirabal, J., dissenting)). Because the rule expressly requires complete information on each paragraph-2 item, the office did not need to decide whether that information was relevant for an entitlement recipient; the rule made it required.

Citations

Statutory provisions and rules discussed:

• Family Code § 71.01 (definitions of family violence, family, household)
• Family Code § 71.04(e) (filing fee; $36 total cap)
• Family Code § 71.07 (service of notice; § 71.07(i) $20 service-fee cap)
• Texas Rule of Civil Procedure 145 (affidavit of inability to pay costs); Rule 106(a) (methods of service)
• Acts 1979, 66th Leg., ch. 98; Acts 1987, 70th Leg., ch. 1090; Acts 1989, 71st Leg., ch. 614; Senate Bill 1149 (1991)

Case discussed:

• Cronen v. Smith, 812 S.W.2d 69, 75 (Tex. App.—Houston [1st Dist.] 1991, no writ) (Mirabal, J., dissenting)

Other authority: Alexander, Title 4, Protection of the Family, 21 Tex. Tech. L. Rev. 1863 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0298
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0298.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 2, 1994

Honorable David Motley
Kerr County Attorney
Kerr County Courthouse
700 East Main Street
Kerrville, Texas 78028-5324

Opinion No. DM-298

Re: Whether, under section 71.04(e) of the Family Code, a clerk of court may charge an applicant for a protective order more than $36 in certain cases and related question (RQ-559)

Dear Mr. Motley:

You have asked us whether, under section 71.04(e) of the Family Code, a clerk of court may charge an applicant for a protective order in cases of family violence[1] more than $36 if more than one person requires service or if service of notice of an application for a protective order is attempted but not completed. You also have asked us whether, under Texas Rule of Civil Procedure 145, an applicant for protective order who currently receives a government entitlement based on indigency must specify in an affidavit other income and assets available to the applicant. We will answer your questions in the order you asked them.

The legislature originally enacted title 4 of the Family Code, of which chapter 71 is a part, in 1979 in an effort to address the problem of family violence. See Alexander, supra note 1, at 1863. Chapter 71 pertains specifically to protective orders. Pursuant to section 71.02 of the Family Code, a person commences a proceeding under chapter 71 by filing with the appropriate clerk of court an application for a protective order. See Fam. Code §§ 71.03 - .05 (providing for venue, persons qualified to file application, and contents of application). Section 71.04(e), about which you specifically ask, provides for fees related to the filing and service of an application for protective order. It states as follows:

The fee for filing an application is $16 and is to be paid to the clerk of the court in which the application is filed. Except as provided in Section 71.07 of this code, the applicant may not be assessed any other fees, costs, charges, or expenses by the clerk of the court or any other public official in connection with the application. The total fees relating to the filing of and service of notice of an application for a protective order, including fees under Section 71.07 of this code, may not exceed $36 under any circumstances. An applicant who is unable to pay the filing fee and other costs as provided in Section 71.07 of this code may file with the court an affidavit of inability to pay under the procedures, to the extent that they apply, provided by the Texas Rules of Civil Procedure. [Emphasis added.]

Section 71.07, to which section 71.04(e) refers, provides in pertinent part as follows:

(a) Each individual who is alleged to have committed family violence is entitled to service of notice of an application for a protective order as provided by this section on the filing of an application.

. . . .

(f) A party filing an application for a protective order shall furnish the clerk with a sufficient number of copies of the application for service of those individuals alleged in the application to have committed family violence.

(g) A notice of an application for a protective order shall be served in the same manner as a citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized.

. . . .

(i) The fee for service of notice of an application for a protective order charged to the applicant under this section may not be more than

(1) $20 if the notice is delivered in person; or

(2) the cost of postage if the service is by registered or certified mail.

Section 71.04(e) limits the total fees a clerk may charge an applicant for a protective order to $36. This is equivalent to the amount section 71.04(e) requires a clerk to charge for filing the application ($16) plus the fee section 71.07(i) authorizes a clerk to charge for service of notice of an application for protective order ($20). However, as you suggest, in drafting section 71.07 the legislature contemplated that, upon occasion, multiple services or multiple attempted services must be made. For example, an applicant may allege that more than one individual has committed family violence, and in such a situation, section 71.07(a) entitles each such individual to service of notice of an application for protective order. Additionally, section 71.07(b) requires the clerk to have the notice served in the manner the applicant directs, which may be one of two methods rule 106(a) of the Texas Rules of Civil Procedure authorizes: by delivering a copy of the application to the respondent in person, or by mailing a copy of the application to the respondent by registered or certified mail, return receipt requested. If the applicant requests that the clerk have the notice served upon the respondent in person, the server may need to make multiple attempts to serve the notice.[2] In either situation, section 71.04(e) appears to mandate that the clerk charge only $20 for service, regardless of the number of respondents served or number of times service must be attempted. You ask us, therefore, to resolve the inconsistency you perceive between section 71.04(e) and section 71.07 of the Family Code.

The legislature designed title 4 of the Family Code in part to provide protective orders to persons who are poor. Alexander, supra note 1, at 1869. In 1979, when the legislature originally enacted section 71.04(d) (renumbered as subsection (e) in 1989, see Acts 1989, 71st Leg., ch. 614, § 2, at 2014-15), it specified a nominal filing fee of $16 but did not limit the amount a clerk could assess for service of notice of the application for protective order,[3] although section 71.07(a) mandated that each respondent was entitled to service.[4] See Acts 1979, 66th Leg., ch. 98, § 11, at 185. Clerks therefore charged court costs and service fees in addition to the $16 filing fee, raising the total fee to a level so high that many eligible persons could not afford to apply for protective orders. Alexander, supra note 1, at 1869. In 1987 the legislature amended section 71.04(d) to prohibit a clerk from assessing in connection with the application any fees, costs, charges, or expenses, other than the fee for service of the notice that section 71.07 authorizes.[5] See Acts 1987, 70th Leg., ch. 1090, § 1, at 3700; see also Alexander, supra note 1, at 1869.

In 1991, by the enactment of Senate Bill 1149, the legislature added the present third sentence to section 71.04(e): "The total fees relating to the filing of and service of notice of an application for a protective order, including fees under Section 71.07 of this code, may not exceed $36 under any circumstances." On its face, this sentence clearly prohibits a clerk from assessing a total fee larger than $36 under any circumstances. The legislative history does not show any contrary intent. In hearings on Senate Bill 1149, the author, Senator Brooks, underlined the plain language of the amendment by stating that the purpose of the amendment was to "clarify the previous legislative intent that the filing fee [for an application] for protective order shall not exceed $16 and the fee for service shall not exceed $20 under any circumstances." Hearings on S.B. 1149 Before the Senate Comm. on Health & Human Services, 72d Leg. (Apr. 16, 1991) (statement of Senator Brooks, author) (tape available from Senate Staff Services) (emphasis added). Consequently, we construe section 71.04(e) to absolutely prohibit a clerk from charging an applicant for protective order under chapter 71 of the Family Code more than $36, regardless of the number of respondents who must be served or the number of times service must be attempted before the server actually delivers the service.

Your second question concerns affidavits of inability to pay costs. As quoted above, section 71.04(e) permits "[a]n applicant who is unable to pay the filing fee and other costs as provided in Section 71.07 of this code [to] file with the court an affidavit of inability to pay under the procedures, to the extent that they apply, provided by the Texas Rules of Civil Procedure." Rule 145 of the Texas Rules of Civil Procedure provides in pertinent part as follows:

In lieu of filing security for costs of an original action, a party who is unable to afford said costs shall file an affidavit as herein described. A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Said affidavit, and the party's action, shall be processed by the clerk in the manner prescribed by this rule.

. . . .

2. Affidavit. The affidavit shall contain complete information as to the party's identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse's income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses.

You contend that, because rule 145 defines a "party who is unable to afford costs" as a person who is presently receiving a government entitlement based on indigency, an applicant for protective order who is filing an affidavit of inability to pay under section 71.04(e) of the Family Code need only state in the affidavit his or her identity and the fact that he or she is receiving a government entitlement based on indigency. You believe that the remainder of the information specified in rule 145 is "wholly unnecessary." We are uncertain whether, by the phrase "wholly unnecessary," you mean not required or irrelevant. Because rule 145 explicitly requires an affiant to provide complete information regarding each of the items listed in paragraph 2 of the rule (thus making such information necessary), we need not determine here whether the information specified in paragraph 2, other than a statement that the affiant is the recipient of a government entitlement based on indigency, is relevant to determining whether such a person is unable to afford the costs of an original action.[6] Cf. Cronen v. Smith, 812 S.W.2d 69, 75 (Tex. App.—Houston [1st Dist.] 1991, no writ) (Mirabal, J., dissenting) (affiant receiving government entitlement based on indigency is as matter of law "party who is unable to afford costs" within context of rule 145).

SUMMARY

Pursuant to section 71.04(e) of the Family Code, a clerk must not charge an applicant for a protective order under chapter 71 of the Family Code more than $36 total for filing the application and serving notice of the application, regardless of the number of respondents who must be served or the number of times service must be attempted before the server actually delivers the service. Although an applicant for protective order is presently receiving a governmental entitlement based on indigency, the applicant must, if he or she claims to be unable to pay the filing fee and other costs as provided in section 71.07 of the Family Code, file with the clerk an affidavit of inability to pay in which the applicant provides information regarding all items paragraph two of Texas Rule of Civil Procedure 145 specifies.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

DREW DURHAM
Deputy Attorney General for Criminal Justice

JAVIER AGUILAR
Special Assistant Attorney General

RENEA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] Section 71.01(b)(2) of the Family Code defines "family violence" as:

(A) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, or assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, or assault, excluding the reasonable discipline of a child by a person having that duty; or

(B) abuse, as that term is defined by Sections 34.102(1)(C), (F), and (G) of this code, by a member of a family or household toward a child of the family or household. [Footnote omitted.]

For purposes of chapter 71, the term "family" "includes individuals related by consanguinity or affinity, as determined under Article 5996h, Revised Statutes, individuals who are former spouses of each other, . . . and individuals who are the biological parents of the same child, without regard to marriage, and a foster child and foster parent, whether or not these individuals reside together." Fam. Code § 71.01(b)(3). The term "household" "means a unit composed of persons living together in the same dwelling, whether or not they are related to each other." Id. § 71.01(b)(5). The term "member of a household" "includes a former member of a household," i.e., "a person who previously lived in the household." Id. § 71.01(b)(4), (6). See generally Alexander, Title 4, Protection of the Family, 21 Tex. Tech. L. Rev. 1863, 1864-66 (1990).

[3] As originally enacted, section 71.04(d) provided that "[t]he fee for filing an application is $16 and is to be paid to the clerk of the court in which the application is filed." See Acts 1979, 66th Leg., ch. 98, § 11, at 185.

[5] In 1987 the legislature amended section 71.04(d) of the Family Code to provide in pertinent part as follows (italics indicate language the legislature added in 1987): "The fee for filing an application is $16 and is to be paid to the clerk of the court in which the application is filed. Except as provided in Section 71.07 of this code, the applicant may not be assessed any other fees, costs, charges, or expenses by the clerk of the court or any other public official in connection with the application." See Acts 1987, 70th Leg., ch. 1090, § 1, at 3700. By the same bill, the legislature added to section 71.07 of the Family Code subsection (c), which reads essentially as section 71.07(i) does currently. See discussion supra page 2 (quoting Fam. Code § 71.07(i)).

[6] Because you do not ask, and therefore we do not consider, the effect, if any, of filing an affidavit under rule 145 of the Texas Rules of Civil Procedure in which the affiant fails fully to state his or her financial condition as required by the rule.