Does the State of Texas have to pay court filing fees and service fees up front when it sues?

TX AG Opinion DM-0459: Does Texas have to prepay court costs and filing fees when it litigates?

Plain-English summary

The Williamson County Attorney's office handles many criminal, juvenile, and civil cases for the State of Texas, and when those cases require serving citations or subpoenas in other counties, the office had relied on a 1982 Attorney General opinion (MW-447A) for the rule that the state does not have to pay security for costs, like filing fees and service-of-process fees, before judgment. Sheriffs and constables started questioning whether that opinion still held and demanding the fees in advance. The county attorney asked the Attorney General to reconsider and confirm.

The Attorney General reaffirmed the 1982 opinion. Section 6.001 of the Civil Practice and Remedies Code exempts the state from filing a bond for court costs in a suit it brings, in an appeal, or to take out writs like attachment or garnishment. The opinion explained that the 1982 conclusion rested on former article 2072 of the civil statutes, which was repealed and re-enacted as section 6.001 in a 1985 nonsubstantive recodification. That recodification combined four overlapping cost-exemption statutes into one and used the word "bond" instead of "security," but in this context the two terms mean the same thing, so the meaning did not change and neither did the 1982 conclusion.

The opinion drew one important line. Section 6.001 only relieves the state of paying these costs in advance; it does not relieve the state of ultimately paying them. Unless a separate statute exempts the state from liability for costs in a particular kind of case (one example is Local Government Code section 154.004), the state is liable for its costs like any other party. When the state wins, it may recover all costs from the losing party, but if it cannot collect from that party, the state has primary liability to pay them.

Currency note

This opinion was issued in 1997. 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.

Section 6.001 of the Civil Practice and Remedies Code and the Texas Rules of Civil Procedure on costs have been amended since 1997. The basic principle (the state need not prepay court costs but remains liable for them) has long been settled, but confirm the current statute and rules before relying on any specific procedure.

Common questions

Can a clerk, sheriff, or constable require the state to pay filing or service fees up front?
No, under this opinion. The Attorney General reaffirmed that section 6.001 of the Civil Practice and Remedies Code exempts the state from posting security for court costs, including filing fees and service-of-process fees, so the state cannot be required to pay them before judgment.

Did the rule change when the old statute was rewritten?
No. The opinion explained that former article 2072 was repealed and re-enacted as section 6.001 in a 1985 nonsubstantive recodification. The switch to the word "bond" from "security" did not change the meaning, because in this context the terms are synonymous.

Does this mean the state never pays court costs?
No. The opinion stressed that the exemption is only from paying in advance. If the state loses a case and no statute exempts it from liability, it owes the costs like any other party.

What if the state wins?
The opinion explained the state may recover all costs from the losing party, but if it cannot collect from that party, the state has primary liability to pay the costs.

Background and statutory framework

Section 6.001 of the Civil Practice and Remedies Code provides that a listed governmental entity or officer (including this state, a department of the state, the head of a department, and a county) may not be required to file a bond for court costs incident to a suit it files or an appeal it takes, and need not give surety for a bond to take out a writ of attachment, sequestration, distress warrant, or garnishment in a civil suit. The Attorney General traced the provision's lineage: MW-447A (1982) construed former article 2072, V.T.C.S., which provided that "no security for costs shall be required of the State." That article, along with former articles 279a, 2072a, and 2276 (which used the term "bond"), was repealed and combined into section 6.001 in the 1985 recodification of the civil-procedure and civil-remedies statutes, undertaken to eliminate duplicative provisions and improve drafting "without altering the sense, meaning, or effect of the law." Because "bond" for court costs is synonymous with "security" for court costs in this context (City of Athens v. Evans; Montoya v. McManus), the recodification did not change the result.

On the limit of the exemption, the opinion relied on the rule that filing fees are merely security for costs, so advance payment cannot be required (Rodeheaver v. Alridge), while the state remains liable for costs under the Rules of Civil Procedure (Tex. R. Civ. P. 125 through 127, 131) unless a statute like Local Government Code section 154.004 exempts it; if the state cannot recover its costs from a losing party, it bears primary liability to pay them (Rodeheaver; Roby v. Hawthorne). The opinion noted MW-447A had not been overruled and had been cited in later opinions (DM-360, DM-250, DM-26).

Citations

Statutes and rules:

• Tex. Civ. Prac. & Rem. Code § 6.001
• Tex. Local Gov't Code § 154.004
• Tex. R. Civ. P. 125-127, 131

Cases:

• Rodeheaver v. Alridge, 601 S.W.2d 51 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.)
• City of Athens v. Evans, 63 S.W.2d 379 (Tex. Comm'n App. 1933, judgm't adopted)
• Montoya v. McManus, 362 P.2d 771 (N.M. 1961)
• Roby v. Hawthorne, 84 S.W.2d 1108 (Tex. Civ. App.-Dallas 1935, writ dism'd)

Related opinions:

• Tex. Att'y Gen. Op. MW-447 (1982); MW-447A (1982); DM-360 (1995); DM-250 (1993); DM-26 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0459
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0459.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

December 12, 1997

The Honorable Eugene D. Taylor
Williamson County Attorney
Courthouse Annex, Second Floor
405 Martin Luther King, Box 7
Georgetown, Texas 78626

Opinion No. DM-459

Re: Whether the State of Texas is exempted from paying filing fees and other court costs prior to judgment; reconsideration of Attorney General Opinion MW-447A (1982) (RQ-943)

Dear Mr. Taylor:

You state that your office represents the State of Texas in many criminal, juvenile, and civil proceedings pending in the courts of your county. When these cases require the service of citations, subpoenas, or other process in other counties of the state, you have relied on Attorney General Opinion MW-447A (1982) as authority that the state need not pay security for costs, such as filing fees and fees for service of process, prior to judgment. You state that sheriffs and constables have been questioning the continued viability of Attorney General Opinion MW-447A and have been demanding fees in advance. You ask whether the conclusions of Attorney General Opinion MW-447A are still valid.

Attorney General Opinion MW-447A clarified Attorney General Opinion MW-447 (1982), which concluded that section 1 of former article 3912e, V.T.C.S. (1925), now codified as section 154.004 of the Local Government Code, did not exempt the State of Texas from having to pay filing fees in civil cases filed with district clerks. Section 154.004 of the Local Government Code provides that the state may not pay a fee or commission to a district officer or a county officer who is paid an annual salary, but excepts "the payment of costs in a civil case or eminent domain proceeding by the state."

Attorney General Opinion MW-447A pointed out that "[t]he state is liable for costs in a case where costs are properly adjudged against it as the non-prevailing party, and where no statute exempts it from costs," but also noted that former article 2072, V.T.C.S., now codified as section 6.001 of the Civil Practice and Remedies Code ("Code"), provided in pertinent part: "no security for costs shall be required of the State or of any incorporated city or town . . . in any action, suit, or proceeding . . . ." The opinion continued by stating that "[f]iling fees are merely 'security for costs,' so that advance payment of such may not be required." See Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Attorney General Opinion MW-447A concluded that "the state is not required to pay filing fees for the filing of a case, pay fees for service of citation or give any other security for costs, including any appellate costs, although the state will ultimately be liable for costs should it be the losing party."

Since Attorney General Opinion MW-447A was issued in 1982, it has not been overruled by a court or an opinion of this office, and it has been cited in subsequent opinions. The statute that it construed, former article 2072, V.T.C.S. (1925), was repealed and its substance was incorporated in section 6.001 of the Code, in a nonsubstantive revision of the statutes relating to civil procedure and civil remedies and liabilities. The revision was undertaken for the purposes of "eliminating repealed, invalid, duplicative, and other ineffective provisions, and improving the draftmanship of the law . . . without altering the sense, meaning, or effect of the law."

The subject matter of three other exemptions from court costs was also incorporated into section 6.001 of the Code. These provisions, former articles 279a, 2072a, and 2276, V.T.C.S. (1925), overlapped in subject matter with one another and with former article 2072. Former article 279a, V.T.C.S., provided in part that "[n]either the State of Texas, nor any county, nor any state department, nor the head of any state department, . . . shall be required to give any bond incident to any suit filed by any such agency, official, and/or entity, for costs of court or for any appeal or writ of error . . . ." Former article 2072a, V.T.C.S., exempted the banking commissioner and the State Banking Board from giving any "cost bond" in trial courts or on appeal or any supersedeas bond on appeal or writ of error. Former article 2276, V.T.C.S., exempted the State of Texas, its departments and heads of departments, and various federal entities from giving "any bond . . . for costs of Court or for any appeal or writ of error . . . nor any surety for the issuance of any bond for the taking out of writs of attachment, sequestration, distress warrants, or writs of garnishment in any civil case." In these three exemptions, the legislature used the term "bond" instead of "security" to describe the exemption from advance payment of filing fees and other court costs. In the context of these and similar exemptions, the term "bond" for court costs is synonymous with "security" for court costs.

The recodification combined the four cost exemption statutes into one, and chose the term "bond" for court costs to describe the exemption. Section 6.001 of the Code provides in part:

(a) A governmental entity or officer listed in Subsection (b) may not be required to file a bond for court costs incident to a suit filed by the entity or officer or for an appeal or writ of error taken out by the entity or officer and is not required to give a surety for the issuance of a bond to take out a writ of attachment, writ of sequestration, distress warrant, or writ of garnishment in a civil suit.

(b) The following are exempt from the bond requirements:

(1) this state;

(2) a department of this state;

(3) the head of a department of this state;

(4) a county of this state;

. . . .

The repeal of article 2072, V.T.C.S. (1925), and the reenactment of its substance in section 6.001 of the Code did not change the meaning of article 2072, nor did it change the conclusion of Attorney General Opinion MW-447A (1982). We reaffirm Attorney General Opinion MW-447A. Section 6.001 of the Civil Practice and Remedies Code exempts the state from paying security for court costs, including filing fees and fees for service of process.

We further point out that section 6.001 of the Civil Practice and Remedies Code only exempts the state from advance payment of filing fees and other court costs but does not exempt it from ultimately paying such costs. In the absence of a provision exempting the state from liability for costs in a particular type of case, such as section 154.004 of the Local Government Code, the state, like other parties, is liable for its costs. When the state prevails in a suit it may recover all costs from the losing party, but in the event the state cannot recover its costs from the losing party, the state will have primary liability to pay them. See Rodeheaver, 601 S.W.2d at 54; Roby v. Hawthorne, 84 S.W.2d 1108, 1109 (Tex. Civ. App.--Dallas 1935, writ dism'd).

SUMMARY

Section 6.001 of the Civil Practice and Remedies Code exempts the state from paying security for court costs, such as filing fees and fees for service of process. Attorney General Opinion MW-447-A (1982) is reaffirmed.

Section 6.001 exempts the state only from advance payment of filing fees and other court costs and does not exempt it from ultimately paying such costs. In the absence of a provision exempting the state from liability for costs in a particular type of case, the state is liable for its costs. When the state prevails in a suit it may recover all costs from the losing party, but if it cannot recover its costs from the losing party, the state will have primary liability to pay them.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

Footnotes

1. See Act of February 25, 1959, 56th Leg., R.S., ch. 23, § 1, 1959 Tex. Gen. Laws 35, 36 (former art. 3912e, V.T.C.S. (1925)). Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 934, 1307 (repeal of art. 3912e, V.T.C.S. and adoption of Local Gov't Code § 154.004 as part of nonsubstantive revision of statutes relating to local government).

2. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9, 1985 Tex. Gen. Laws 3242, 3244-45, 3322 (repeal of art. 2072, V.T.C.S. (1925), adopting Civ. Prac. & Rem. Code § 6.001 and repealing art. 2072, V.T.C.S. as part of nonsubstantive revision of statutes relating to civil procedure and civil remedies and liabilities).

3. V.T.C.S. art. 2072 (West 1984); see Act of April 15, 1909, 31st Leg., 1st C.S., ch. 14, § 1, 1909 Tex. Gen. Laws 284, 284.

4. See Attorney General Opinions DM-360 (1995), DM-250 (1993), DM-26 (1991).

5. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9, 1985 Tex. Gen. Laws 3242, 3244-45, 3322.

6. Foreword to Proposed Code, Civ. Prac. & Rem. Code at IX (Vernon's 1986).

7. Act of April 26, 1957, 55th Leg., R.S., ch. 213, § 1, 1957 Tex. Gen. Laws 439.

8. Act of March 25, 1927, 40th Leg., R.S., ch. 135, § 1, 1927 Tex. Gen. Laws 203, 203.

9. Act of May 9, 1935, 44th Leg., R.S., ch. 283, § 1, 1935 Tex. Gen. Laws 670, 670.

10. Act of April 26, 1957, see supra note 7.

11. See City of Athens v. Evans, 63 S.W.2d 379, 382 (Tex. Comm'n App. 1933, judgm't adopted) (art. 2072, V.T.C.S. (1925) refers not only to bonds as security for costs in trial courts, but also to bonds as security for costs of an appeal); Montoya v. McManus, 362 P.2d 771, 777 (N.M. 1961) ("bond" for payment of costs that may be adjudged against party in election contest is synonymous with "security").

12. Civ. Prac. & Rem. Code § 6.001 (emphasis added). Section 6.001(c) provides that a county or district attorney is not exempt from filing a bond to take out an extraordinary writ unless approved by the commissioners court in an action in behalf of the county or the attorney general in an action brought in behalf of the state.

13. Tex. R. Civ. P. 125-27.

14. Id. 131.