Can a Texas justice court charge a fee to file a petition for an occupational driver's license?

Plain-English summary

When a Texas driver's license is suspended, the driver can ask a court for an "occupational" license, a limited license that allows essential driving such as getting to work. Transportation Code section 521.242 sets out that process: the driver files a verified petition, and the court holds a hearing before deciding whether to grant the license.

In 2013 the Eighty-third Legislature passed House Bill 438, which changed section 521.242 in two ways. It added justice courts to the list of courts (alongside county and district courts) that can receive these petitions, and it deleted the single word "civil" from subsection (e), so that the clerk now files the petition "as in any other matter" rather than "as in any other civil matter." Representative Harold V. Dutton, Jr., chair of the House Committee on Urban Affairs, asked the Attorney General two related questions: did deleting "civil" eliminate a court's authority to charge a filing fee, and if a justice court can charge a fee, on what statute does that authority rest.

The Attorney General said the fee authority survived. An official such as a clerk may charge a fee only when a statute authorizes it, and the general fee statutes for the trial courts tie the filing fee to a "civil matter." But an occupational-license proceeding has long been treated as a civil matter, separate from any criminal case, and House Bill 438 changed nothing else about the proceeding. The AG read the bare deletion of "civil" from the filing instruction as not signaling any intent to turn the case into a criminal matter or to dispense with the fees county and district courts had always charged. For justice courts specifically, the AG pointed to section 118.122 of the Local Government Code, which authorizes a justice court to collect a fee for all required filings and other processes in a civil matter. Because subsection 521.242(e) requires the clerk to file the verified petition, that filing is a "required filing," and the AG concluded a justice court may charge a fee for it.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The House Committee on Urban Affairs (as the opinion described it): The opinion answered that House Bill 438 did not eliminate a court's authority to charge a fee for filing a section 521.242 petition, and that section 118.122 of the Local Government Code supplied the specific authority for justice courts to charge that fee.

Justice courts and their clerks (as the opinion described it): The opinion described a justice court as authorized to charge a filing fee for an occupational-license petition because the proceeding remained a civil matter and the clerk's filing was a "required filing" under section 118.122 of the Local Government Code.

Drivers seeking an occupational license (as the opinion described it): The opinion treated the occupational-license proceeding as a civil matter that drivers initiate by filing a verified petition, and described the filing fee that county and district courts had charged as continuing to apply, now in justice courts as well.

Common questions

Did House Bill 438 make occupational-license petitions free to file?
No. The AG concluded the bill did not eliminate a court's authority to charge a filing fee. Deleting the word "civil" from subsection 521.242(e) did not turn the proceeding into a criminal matter or repeal the fee the courts had charged before.

What lets a justice court charge the fee?
The AG identified section 118.122 of the Local Government Code, which authorizes a justice court to collect a fee for all required filings and other processes in a civil matter. Because subsection 521.242(e) requires the clerk to file the verified petition, the AG treated it as a "required filing" covered by that statute.

Is applying for an occupational license a civil or criminal case?
The AG described it as a civil matter, independent of any criminal proceeding, relying on a court of appeals decision that had reached the same conclusion. That characterization is what kept the general civil filing-fee statutes in play.

Background and statutory framework

Section 521.242 of the Transportation Code sets the procedure for a person whose driver's license has been suspended to apply for an occupational license by filing a verified petition in an appropriate court, with notice and a hearing before the court decides (Tex. Transp. Code Ann. §§ 521.242, 521.242(a), 521.243-.244(a)). A license may be suspended for both criminal and noncriminal reasons (Tex. Transp. Code Ann. §§ 521.0445, 521.292, 601.057, 601.152), and the subchapter L "essential need" procedure is separate from any right to challenge the suspension itself (id. §§ 521.241-.253). House Bill 438 added justice courts to those that may receive the petition and deleted "civil" from subsection (e) (Act of May 22, 2013, 83d Leg., R.S., ch. 860, § 1, 2013 Tex. Gen. Laws 2209, 2209).

The AG construed the amended statute by its role in the broader statutory scheme (20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)), treated the occupational-license proceeding as civil in nature (State ex rel. Curry v. Gilfeather, 937 S.W.2d 46, 50 (Tex. App.-Fort Worth 1996, orig. proceeding)), and applied the rule that an official may charge a fee only as authorized by statute (Moore v. Sheppard, 192 S.W.2d 559, 560-61 (Tex. 1946)). The general fee statutes for the trial courts appear at Government Code sections 51.317 and 51.319 (district court) and Local Government Code sections 118.011, 118.052, 118.121, and 118.122 (county and justice courts). A prior opinion had found general civil filing-fee authority applicable to these petitions (Tex. Att'y Gen. Op. No. LO-96-131, at 2). Because House Bill 438 left the rest of the proceeding unchanged, the AG presumed the prior judicial interpretation continued to apply (Pettigrew v. State, 48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001)), and rested the justice-court fee on section 118.122(a) of the Local Government Code.

Citations

Statutes and session laws:

• Tex. Transp. Code Ann. § 521.242, § 521.242(a), § 521.242(e) (West Supp. 2013) (occupational-license petition procedure)
• Tex. Transp. Code Ann. §§ 521.241-.253 (West 2013 & Supp. 2013) (subchapter L, occupational licenses)
• Tex. Transp. Code Ann. §§ 521.243-.244(a) (West 2013) (notice and hearing)
• Tex. Transp. Code Ann. § 521.0445 (West 2013), § 521.292, § 601.057 (West 2011), § 601.152 (grounds for suspension)
• Tex. Gov't Code Ann. §§ 51.317, .319 (West 2013 & Supp. 2013) (district court fees)
• Tex. Loc. Gov't Code Ann. §§ 118.011, .052 (West Supp. 2013) (county court fees)
• Tex. Loc. Gov't Code Ann. §§ 118.121, .122, § 118.122(a) (West 2008) (justice court fees)
• Act of May 22, 2013, 83d Leg., R.S., ch. 860, § 1, 2013 Tex. Gen. Laws 2209, 2209 (House Bill 438)

Cases:

• 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)
• State ex rel. Curry v. Gilfeather, 937 S.W.2d 46, 50 (Tex. App.-Fort Worth 1996, orig. proceeding)
• Moore v. Sheppard, 192 S.W.2d 559, 560-61 (Tex. 1946)
• Pettigrew v. State, 48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001)

Other authority:

• Tex. Att'y Gen. Op. No. LO-96-131, at 2 (general civil filing-fee authority applies to occupational-license petitions)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1044
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1044.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 3, 2014

The Honorable Harold V. Dutton, Jr. Opinion No. GA-1044
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether justice courts are authorized to charge
Post Office Box 2910 a fee for filing a petition to apply for an
Austin, Texas 78768-2910 occupational driver's license (RQ-1148-GA)

Dear Representative Dutton:

You ask whether justice courts are authorized to charge a fee for filing a petition to apply for an occupational driver's license.[1] Section 521.242 of the Transportation Code provides the procedure for a person whose driver's license has been suspended to apply for an occupational license by filing a verified petition in certain courts. TEX. TRANSP. CODE ANN. § 521.242 (West Supp. 2013). The statute was recently amended by House Bill 438 to (1) authorize justice courts, in addition to county and district courts, to receive such a petition and (2) delete the word "civil" from subsection (e) as follows: "The clerk of the court shall file the petition as in any other [civil] matter." Act of May 22, 2013, 83d Leg., R.S., ch. 860 § 1, 2013 Tex. Gen. Laws 2209, 2209 ("House Bill 438").

To construe section 521.242 as amended, we consider "its role in the broader statutory scheme." 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). A person's driver's license may be suspended for reasons both criminal and noncriminal. See, e.g., TEX. TRANSP. CODE ANN. §§ 521.0445 (West 2013) (nonpayment of child support obligations); 521.292 (grounds for suspension); 601.057 (West 2011) (inadequacy of proof establishing financial responsibility); 601.152 (owner or operator of vehicle involved in an accident in certain circumstances). The procedure in chapter 521, subchapter L of the Transportation Code to seek an occupational driver's license for "essential need" is separate from any right to challenge or appeal a driver's license suspension. Id. §§ 521.241-.253 (West 2013 & Supp. 2013); see generally State ex rel. Curry v. Gilfeather, 937 S.W.2d 46, 50 (Tex. App.-Fort Worth 1996, orig. proceeding). The person whose driver's license has been suspended initiates the proceeding by filing a verified petition in an appropriate court. TEX. TRANSP. CODE ANN. § 521.242(a) (West Supp. 2013). The statute requires notice and hearing before the court determines whether the petitioner may receive an occupational license. Id. §§ 521.243-.244(a) (West 2013). The proceeding is a civil matter, independent of any criminal proceeding. Gilfeather, 937 S.W.2d at 50.

An official such as a judge or clerk of a justice court may charge a fee for performing an official duty only as authorized by statute. See Moore v. Sheppard, 192 S.W.2d 559, 560-61 (Tex. 1946). While chapter 521, subchapter L does not address filing fees, the Legislature has promulgated general fee statutes for the different types of trial courts. See, e.g., TEX. GOV'T CODE ANN. §§ 51.317, .319 (West 2013 & Supp. 2013) (district court); TEX. LOC. GOV'T CODE ANN. §§ 118.011, .052 (West Supp. 2013) (county court), 118.121, .122 (West 2008) (justice court). This office has determined that a court's general statutory authority to charge a fee for filing an original petition in a civil matter applies to the filing of a petition to apply for an occupational driver's license. Tex. Att'y Gen. Op. No. LO-96-131, at 2.

You ask whether, by deleting the word "civil" from subsection 521.242(e) of the Transportation Code, House Bill 438 eliminated the authority of a court clerk to charge a fee for filing the petition to apply for an occupational driver's license. Request Letter at 1. After amendment, subsection 521.242(e) provides that a "clerk of the court shall file the petition as in any other matter." TEX. TRANSP. CODE ANN. § 521.242(e) (West Supp. 2013). House Bill 438 does not change any other aspect of a section 521.242 proceeding. The plain language of subsection 521.242(e) following amendment does not suggest a legislative intent to transform the proceeding into a criminal matter or to dispense with the filing fees that district and county courts charged prior to the amendment. A court would likely conclude that House Bill 438 does not eliminate a court's authority to charge a fee for filing a section 521.242 petition. Cf. Pettigrew v. State, 48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001) ("To the extent that the material portions of the statute have remained unchanged we presume that the Legislature intended that the judicial interpretation of the previous version of the statute continue to apply."); Gilfeather, 937 S.W.2d at 50 (determining that a section 521.242 proceeding is civil in nature).

You also ask whether, and on what basis, a justice court may charge a fee for filing a section 521.242 petition. Request Letter at 2. Section 118.122 of the Local Government Code authorizes a justice court to collect a fee "for all required filings of documents . . . and all other processes and procedures in a civil matter in a justice court." TEX. LOC. GOV'T CODE ANN. § 118.122(a) (West 2008). Subsection 521.242(e) of the Transportation Code requires the court clerk to file the verified petition, making it a "required filing" under section 118.122 of the Local Government Code. As discussed above, a section 521.242 proceeding is a civil matter. Gilfeather, 937 S.W.2d at 50. Consequently, section 118.122 of the Local Government Code authorizes a justice court to charge a fee for filing a petition to apply for an occupational driver's license.

SUMMARY

House Bill 438 does not eliminate a court's authority to charge a fee for filing a petition to apply for an occupational driver's license under section 521.242 of the Transportation Code. Section 118.122 of the Local Government Code authorizes justice courts to charge a fee for filing such a petition.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Harold V. Dutton, Jr., House Comm. on Urban Affairs, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 27, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").