Could a Texas county clerk charge defendants separate filing fees for answers and discovery responses in a contested probate case?
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This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-346: Probate Adverse-Action Filing Fees
Plain-English summary
The Dallas County criminal district attorney asked whether county clerks could charge defendants for filing answers, interrogatory responses, requests-for-admission responses, and other papers in contested probate proceedings. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
JM-346 concluded that article 3930(b), paragraph B(1)(c), authorized a single $25 fee paid by the party who started an adverse action or contest in probate court. It found no statute authorizing additional filing fees for the defendant's later pleadings and legal papers in that adverse action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
The opinion treated the initial fee as advance payment for clerk services that would arise during the contested case. It relied on the rule that public officers may collect only fees expressly provided and fixed by law, with fee statutes construed strictly against implied charges. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
JM-346 overruled Attorney General Opinion JM-168 to the extent JM-168 had said supplemental instruments in an ancillary probate action were subject to the per-document fees in paragraph B(1)(b)(i) after the inventory, appraisal, or tax-receipt milestone. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Currency note
This opinion was issued in 1985. 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.
Common questions
Who paid the initial fee for a probate adverse action?
The party who started the adverse action or contest. Article 3930(b), paragraph B(1)(c), set that fee at $25 at the time JM-346 was issued. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Could the clerk charge the defendant to file an answer?
No. The opinion found no statutory authority for a separate charge on a defendant's original answer or later pleadings in the adverse action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
What about answers to interrogatories or responses to requests for admissions?
The same conclusion applied. JM-346 said those legal instruments were covered by the initial adverse-action fee rather than a new per-document filing fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Why did the ordinary open-probate-docket fee not apply?
The opinion read paragraph B(1)(b) as covering services that otherwise fell within the ordinary probate fee structure but occurred after the inventory, appraisal, or tax-receipt milestone. It read paragraph B(1)(c) as the provision specifically governing an ancillary adverse action or contest. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Did JM-346 change an earlier Texas AG opinion?
Yes. It overruled JM-168 in part because JM-168 had applied paragraph B(1)(b)(i)'s supplemental-instrument fees to an ancillary probate action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Background and statutory framework
Article 3930(b) separated county-clerk probate charges into categories. Paragraph B(1)(a) covered the original probate cause or estate action, paragraph B(1)(b) covered specified services after the inventory or tax-receipt milestone, paragraph B(1)(c) covered adverse actions or contests, and paragraph B(1)(d) covered claims against an estate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
The 1983 amendment replaced the earlier one-year dividing line with probate-process milestones involving approval of the inventory and appraisement or filing of the inheritance or estate tax receipt. JM-346 understood that change as defining how long the original lump-sum probate fee compensated the clerk for ordinary probate services. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Rodeheaver v. Alridge described the $25 adverse-action charge as covering both the initial filing and later clerk services during the case. JM-346 also relied on McCalla v. City of Rockdale and related cases for the rule against collecting official fees by implication. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Citations and references
- V.T.C.S. article 3930(b), §1, paragraph B(1)
- McCalla v. City of Rockdale, 246 S.W. 654, 655 (Tex. 1922)
- Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)
- Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942)
- State v. Moore, 57 Tex. 307, 321 (1882)
- 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 JM-168 (1984)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0346
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0346.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
August 23, 1985
Honorable Henry Wade
Criminal District Attorney
Condemnation Section
Services Building
Dallas, Texas 75202
Opinion No. JM-346
Re: Fees to be charged for filing certain instruments in probate court
Dear Mr. Wade:
You request the opinion of this office concerning fees, if any, to be charged by county clerks for the filing of pleadings and legal instruments by defendants in adverse actions in the probate courts, such as the defendant's original answer, answers to interrogatories, or responses to requests for admissions. You also seek clarification of Attorney General Opinion JM-168 (1984) in regard to the applicability of subsection (b)(i), paragraph B(1), section 1, of article 3930(b), V.T.C.S. We conclude that the state statutes do not authorize any fees to be charged by county clerks in adverse actions in the probate court, except the fee to be paid by the party initiating the adverse action as authorized by article 3930(b), section 1, paragraph B(1)(c).
Since 1967, article 3930(b), V.T.C.S., has prescribed the fees which clerks of the county courts are authorized to charge for court-related services performed by the clerks. Section 1, paragraph A of that act provides for fees for ordinary civil cases on the county civil court dockets. Paragraph C relates to services of the clerk in issuing and recording the return of documents where no cause is pending. Paragraph D has to do with issuing certificates, certified copies, and other documents on which there is no return to be recorded. Paragraph E applies to letters testamentary and similar instruments, and Paragraph F applies to the filing and keeping of wills for safekeeping. Section 1, paragraph B, which prescribes fees for probate court dockets, provides, in pertinent part, that
(1) For each cause or action, or docket in Probate Courts: . . . .
(a) For each original cause or action in a Probate Docket, a fee to be due and payable and to be paid by the party or parties starting or initiating said cause or estate action. . . .
(i) For probating will with independent executor; for administration with will attached, for administration of an estate, for guardianship or receivership of an estate, for muniment of title, a fee from the starting or initiating such cause of action until either an order approving the inventory and appraisement is filed or until the inheritance or estate tax receipt is filed, whichever first occurs: a fee of .......... $35.00
. . . .
(b) For each probate docket remaining open after the filing of the order approving the inventory and appraisement or after the filing of the inheritance or estate tax receipt, whichever occurs first, the following fees shall be paid. . . .
(i) For filing, or filing and recording, of each instrument of writing, legal document, paper or record in an open Probate Docket after the filing of the order approving the inventory and appraisement or after the filing of the tax receipt, whichever is applicable, a fee:
(1) For the first page of .............. $3.00
(2) For each page or part of a page thereafter of ......................................... $2.00
(ii) For approving and recording each bond relating only to an open Probate Docket after the filing of the order approving the inventory and appraisement or after the filing of the tax receipt, whichever is applicable, a fee of .......... $3.00
(iii) For administering each oath relating to an open Probate Docket after the filing of the order approving the inventory and appraisement or after the filing of the tax receipt, whichever is applicable, a fee of .......... $2.00
(c) For each adverse action or contest, other than the filing of a claim against an estate, in a cause or docket in a probate court, a fee to be due and payable and to be paid by the party or parties starting or initiating such adverse action or contest, but excluding other items listed in Paragraphs A, B, C, and D of this Section 1, of ......................................... $25.00
(d) For filing and entering each claim against an estate in the claim docket, a fee to be paid by claimant at the time of filing such claim, of ......................................... $2.00
(Emphasis added).
Until amended in 1983, paragraph B(1)(a) provided for a fee for each original cause or action for a period of one year from the starting or initiating of the cause of action instead of a fee from the starting or initiating of the cause of action until either an order approving the inventory and appraisement is filed or until the inheritance or estate tax receipt is filed. Likewise, prior to 1983, paragraph B(1)(b) provided fees for each probate docket remaining open after its first anniversary date instead of a fee for each docket remaining open after the filing of the order approving the inventory and appraisement or after the filing of the inheritance or estate tax receipt.
The usual proceedings within the jurisdiction of the probate courts may remain pending for lengthy periods of time. It is our opinion that the legislature intended the reference to inventory and appraisement and to inheritance or estate tax receipt as a determination of the period of time during which services by the county clerk are compensated by the lump sum fee for the starting of the original cause or estate action. The amendment in 1983 ties that determination to key points in the probate process in place of the arbitrary one-year period. See Bill Analysis to S.B. No. 663, 68th Leg., prepared for House Committee on the Judiciary, filed in Bill File to S.B. No. 663, Legislative Reference Library. We conclude that fees provided by paragraph B(1)(b) apply to services which would be covered by the provisions of paragraph B(1)(a) were it not that the services occur after the filing of the order approving the inventory and appraisement or after the filing of the tax receipt. On the other hand, fees provided by paragraph B(1)(c) apply to adverse actions or contests other than claims against an estate, which are not themselves probate matters, but are filed in probate court because they are ancillary or incident to a cause in the probate court. Fees provided by paragraph B(1)(d) apply to claims against an estate.
Hence, we conclude that it is the intention of the legislature that it is paragraph B(1)(c), not paragraph B(1)(b), that applies to the adverse actions about which you inquire.
It has long been established that unless a fee is provided by law for an official service required to be performed and the amount is fixed by law, a fee may not be charged. Furthermore, fee statutes are strictly construed, and fees are not permitted by implication.
The courts of this state have adopted the rule construing strictly those statutes prescribing fees for public officers and against permitting such fees by implication. No officer is permitted to collect fees or commissions unless the same are provided for and the amount thereof declared by law. This is true, notwithstanding such officer may be required by law to perform specific services for which no compensation is provided.
McCalla v. City of Rockdale, 246 S.W. 654, 655 (Tex. 1922). See also Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942); State v. Moore, 57 Tex. 307, 321 (1882); Attorney General Opinions MW-104 (1979); H-796 (1976); S-87 (1953); V-957 (1949).
Paragraph B(1)(c) expressly requires a $25.00 fee to be paid by the party initiating an adverse action or contest in a cause in a probate court. We think that neither paragraph B(1)(c) nor any other statutory provision of which we are aware provides for a fee other than the initial $25.00 fee in such an adverse action. In Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex. Civ. App. - Houston [1st Dist.] 1980, writ ref'd n.r.e.), the court stated that
A reading of Article 3930(b) shows that the $25.00 fee which the county clerk is to collect for each filed adverse action or contest covers not only the clerk's services for the initial filing of the action but also many other services which will accrue during the processing of the suit. Thus, the statutory fee is, in effect, an advance payment for the cost of services which have not been rendered at the time the fee is collected.
In Attorney General Opinion JM-168, we stated that supplemental instruments filed in connection with an ancillary probate action are subject to the fees prescribed by paragraph B(1)(b)(i) of article 3930(b) if the instruments are filed after the inventory and appraisement have been approved or after the inheritance or estate tax receipt has been filed. We now conclude that, other than the initial $25.00 fee, no fees are authorized for the filing of pleadings and legal instruments in adverse and ancillary actions in the probate courts. To the extent that Attorney General Opinion JM-168 conflicts with this conclusion, it is overruled.
SUMMARY
County clerks are authorized to charge an initial fee of $25.00 to be paid by the party initiating an adverse action or contest in a probate court. An additional fee is not authorized for the filing of pleadings and legal instruments by the defendants in adverse actions in a probate court.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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