When did Texas district courts have to start collecting the new $20 electronic-filing fee?

Plain-English summary

After the Texas Supreme Court ordered electronic filing for most civil courts, the Eighty-third Legislature passed House Bill 2302, which added section 51.851 to the Government Code to set the new electronic-filing fees, including a $20 fee a clerk collects on the filing of a civil action or proceeding that requires a filing fee. The question that reached the Attorney General was about timing: when district court clerks were supposed to start collecting those fees.

That question came up because of a general statute, section 51.607, titled "Implementation of New or Amended Court Costs and Fees." It says that a new or increased court cost or fee does not take effect until the next January 1 after the underlying law takes effect, no matter what effective date the law itself carries. House Bill 2302 dealt with this directly: an uncodified section of the bill expressly exempted the section 51.851 fees from section 51.607, and another part said the fees applied only to filings payable on or after September 1, 2013. Separately, a different 2013 bill, Senate Bill 390, repealed subsection 51.607(d), the provision that had let a fee law expressly opt out of the January 1 delay.

Bexar County Criminal District Attorney Susan Reed asked the Attorney General whether district court clerks should have started collecting the new fees on September 1, 2013, when House Bill 2302 took effect, or whether collection had to wait until January 1, 2014. She suggested that by repealing subsection (d), the Legislature intended for all new court costs and fees to begin on January 1 without exception, which would put House Bill 2302 and Senate Bill 390 in conflict.

The Attorney General concluded the two bills do not conflict. When acts pass in the same legislative session, the later one controls the earlier only if there is an express repeal or an irreconcilable repugnancy. House Bill 2302 expressly exempted the e-filing fees from section 51.607 and expressly applied them to fees payable on or after September 1, 2013. Senate Bill 390 made no reference to House Bill 2302 and merely removed the express-exception subsection from section 51.607; reading it to make section 51.607 apply without exception would render section 21 of House Bill 2302 meaningless and would let one Legislature bind a later one. Because giving full effect to House Bill 2302 did not violate section 51.607 as amended by Senate Bill 390, the AG concluded the fee amounts mandated by section 51.851 applied to fees that became payable on or after September 1, 2013.

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 Bexar County Criminal District Attorney (as the opinion described it): The opinion answered that the section 51.851 fee amounts applied to fees that became payable on or after September 1, 2013, and that House Bill 2302 and Senate Bill 390 did not conflict, declining to treat Senate Bill 390's repeal of subsection 51.607(d) as forcing a January 1, 2014 start.

District court clerks (as the opinion described it): The opinion described the new electronic-filing fees as effective for filings payable on or after September 1, 2013, rather than delayed to January 1, 2014 under section 51.607's general rule.

The Office of Court Administration (as the opinion noted): The opinion noted that OCA's briefing reached the same conclusion, that the fee mandated by section 51.851 became effective September 1, 2013.

Common questions

Did the new $20 e-filing fee start in September 2013 or January 2014?
The AG concluded the section 51.851 fees applied to fees that became payable on or after September 1, 2013. House Bill 2302 expressly exempted those fees from the section 51.607 rule that would otherwise delay a new fee to the next January 1.

Why didn't the usual January 1 delay apply?
Section 51.607 delays a new court fee to the next January 1, but House Bill 2302 expressly exempted the section 51.851 fees from section 51.607 and expressly applied them to fees payable on or after September 1, 2013, so the AG found the delay did not govern these fees.

Did Senate Bill 390 cancel out that exemption?
No. The AG concluded the bills do not conflict. Senate Bill 390 only removed the subsection that had allowed laws to opt out of section 51.607; reading it to make section 51.607 apply without exception would have rendered the House Bill 2302 exemption meaningless and let one Legislature bind a later one.

Background and statutory framework

Section 51.851 was added to the Government Code by House Bill 2302 in response to the Texas Supreme Court's order mandating electronic filing for most civil courts (Act of May 16, 2013, 83d Leg., R.S., ch. 1290, § 2, 2013 Tex. Gen. Laws 3269, 3270; Texas Supreme Court Administrative Order, Misc. Docket No. 12-9206 (Dec. 11, 2012)). It set specific fees, including a $20 fee on the filing of a civil action or proceeding requiring a filing fee (Tex. Gov't Code Ann. § 51.851(b)). Section 21 of House Bill 2302, an uncodified provision, exempted those fees from section 51.607 and applied them only to fees payable on or after September 1, 2013. Section 51.607 generally delays a new or changed court cost or fee until the next January 1 after the law takes effect (Tex. Gov't Code Ann. § 51.607(c)). Its former subsection (d), which allowed a law to expressly provide that section 51.607 did not apply, was repealed by Senate Bill 390, effective June 14, 2013 (Act of June 1, 2003, 78th Leg., R.S., ch. 209, § 81(a), 2003 Tex. Gen. Laws 979, 1002, repealed by Act of May 17, 2013, 83d Leg., R.S., ch. 417, § 1, 2013 Tex. Gen. Laws 1206, 1206).

The AG construed the statutes to give effect to the Legislature's intent as expressed in their plain language (R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)) and applied the rule that same-session acts conflict only on an express repeal or irreconcilable repugnancy (Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946)). Because Senate Bill 390 made no reference to House Bill 2302, the AG drew on the principle that the Legislature knows how to enact laws effectuating its intent (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)), the presumption against reading a statute to do a useless or meaningless act (Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)), and the rule that one Legislature cannot bind a later one (Jefferson Cnty. v. Bd. of Cnty. & Dist. Rd. Indebtedness, 182 S.W.2d 908, 915 (1944)).

Citations

Statutes and session laws:

• Tex. Gov't Code Ann. § 51.851, § 51.851(b) (West Supp. 2013) (electronic-filing fees)
• Tex. Gov't Code Ann. § 51.607, § 51.607(c) (West Supp. 2013) (implementation of new court costs and fees; January 1 delay)
• Act of May 16, 2013, 83d Leg., R.S., ch. 1290, § 2, 2013 Tex. Gen. Laws 3269, 3270 (House Bill 2302)
• Act of June 1, 2003, 78th Leg., R.S., ch. 209, § 81(a), 2003 Tex. Gen. Laws 979, 1002 (former subsection 51.607(d))
• Act of May 17, 2013, 83d Leg., R.S., ch. 417, § 1, 2013 Tex. Gen. Laws 1206, 1206 (Senate Bill 390)

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)
• Jefferson Cnty. v. Bd. of Cnty. & Dist. Rd. Indebtedness, 182 S.W.2d 908, 915 (1944)

Other authority:

• Texas Supreme Court Administrative Order, Misc. Docket No. 12-9206 (Dec. 11, 2012) (order mandating electronic filing)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1046
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1046.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 4, 2014

The Honorable Susan D. Reed Opinion No. GA-1046
Bexar County Criminal District Attorney
101 West Nueva Re: When district courts should begin collecting
San Antonio, Texas 78205 the new fees for electronic filing under House Bill
2302 and Senate Bill 390 (RQ-1151-GA)

Dear Ms. Reed:

You ask about the date on which district court clerks should begin collecting the fees mandated by Government Code section 51.851.[1]

Section 51.851 was added to the Government Code by House Bill 2302, adopted by the Eighty-third Legislature, in response to the Texas Supreme Court's order mandating electronic filing for most civil courts in Texas. Act of May 16, 2013, 83d Leg., R.S., ch. 1290, § 2, 2013 Tex. Gen. Laws 3269, 3270 (codified at TEX. GOV'T CODE ANN. § 51.851 (West Supp. 2013)) (hereinafter "H.B. 2302"); see Texas Supreme Court Administrative Order, Misc. Docket No. 12-9206, at 3-4 (Dec. 11, 2012). Section 51.851 implements specific filing fees and court costs, including a $20 fee to be collected by the clerk of certain courts "on the filing of any civil action or proceeding requiring a filing fee, including an appeal" and certain other filings. TEX. GOV'T CODE ANN. § 51.851(b) (West Supp. 2013). Relevant here, section 21 of H.B. 2302, an uncodified provision, exempts the fees authorized by section 51.851 from the requirements of Government Code section 51.607. See H.B. 2302 § 21(a)(1), at 3274.

Section 51.607, titled "Implementation of New or Amended Court Costs and Fees," provides in part that "[n]otwithstanding the effective date of the law imposing or changing the amount of a court cost or fee . . . 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." TEX. GOV'T CODE ANN. § 51.607(c) (West Supp. 2013). Prior to the 2013 legislative session, section 51.607 contained a subsection (d), which provided in part that "[t]his section does not apply to a court cost or fee if the law imposing or changing the amount of the cost or fee . . . expressly provides that [section 51.607] does not apply to the imposition or change in the amount of the cost or fee." Act of June 1, 2003, 78th Leg., R.S., ch. 209, § 81(a), 2003 Tex. Gen. Laws 979, 1002, repealed by Act of May 17, 2013, 83d Leg., R.S., ch. 417, § 1, 2013 Tex. Gen. Laws 1206, 1206 (hereinafter "S.B. 390"). Subsection 51.607(d) was repealed by the Eighty-third Legislature's adoption of S.B. 390, which became effective on June 14, 2013. S.B. 390, §§ 1, 3, at 1208.

You assert that by repealing subsection (d) the Legislature intended for the "collection of all new court costs and fees . . . [to] begin on January 1 without exception." Request Letter at 3 (emphasis omitted). Thus, you suggest that H.B. 2302 and S.B. 390 conflict and ask whether district court clerks should have begun collecting new fees when H.B. 2302 became effective on September 1, 2013, or whether the collection of the fees should be delayed until January 1, 2014 pursuant to subsection 51.607(c). Request Letter at 3; see H.B. 2302 § 23, at 3274 (effective date).[2]

Like the courts, our primary objective when construing statutes is to give effect to the Legislature's intent as expressed in the statute's plain language. R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). When construing acts passed during the same legislative session, "there must be an express repeal, or an irreconcilable repugnancy between them" for the latter act to control the former. Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946). H.B. 2302 expressly exempts the electronic filing fees assessed under section 51.851 from the application of section 51.607. H.B. 2302 § 21(a)(1), at 3274. It also expressly applies "only to a fee that becomes payable on or after September 1, 2013." H.B. 2302 § 21(b), at 3274. This indicates that the Legislature did not intend for the implementation of such fees to be delayed until January 1, 2014, as would be provided under subsection 51.607(c).

S.B. 390 makes no reference to H.B. 2302, nor does it contain any language indicating that section 51.607 should control in the event of a potential conflict with another law. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). S.B. 390 merely removed an express exception from section 51.607. Construing S.B. 390 to mean that section 51.607 should apply entirely without exception would render section 21 of H.B. 2302 meaningless. Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010) (stating that courts "'do not lightly presume that the Legislature may have done a useless act'" or enacted a meaningless statute). It would also contravene the general rule that "one Legislature cannot bind the hands of a subsequent Legislature." Jefferson Cnty. v. Bd. of Cnty. & Dist. Rd. Indebtedness, 182 S.W.2d 908, 915 (1944). By contrast, giving full effect to H.B. 2302 in no way violates section 51.607 as amended by S.B. 390. Therefore, H.B. 2302 and S.B. 390 do not conflict.

Accordingly, the new fee amounts mandated by section 51.851 of the Government Code apply to fees that became payable on or after September 1, 2013.[3]

SUMMARY

The fee amounts mandated by Government Code section 51.851 apply to fees that became payable on or after September 1, 2013.

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

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

[1] See Letter from Honorable Susan D. Reed, Bexar Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 3 (Sept. 12, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You suggest that the Comptroller has taken the position that "collection of the new $20 electronic filing fee should begin on January 1, 2014." Request Letter at 3. However, you do not direct us to any written statement expressing the views of the Comptroller's Office on the matter. Because we can find no indication that the Comptroller's Office has formally adopted this position, we cannot give any weight to your representation of the Comptroller's position.

[3] In briefing submitted to this office the Office of Court Administration ("OCA") takes the position that "regardless of the intent behind the repeal of Subsection (d), neither the repeal of [subsection 51.607(d)] nor any other provision in statute prohibits the Legislature from excepting an existing statute from being applicable to a new law." Brief from David Slayton, Admin. Dir., Office of Ct. Admin. at 2 (Oct. 24, 2013) (on file with the Op. Comm.). OCA therefore concludes, consistent with this opinion, that the fee mandated by section 51.851 became effective September 1, 2013. Id. at 1.