What did a Texas district clerk have to do with a civil dismissal notice, an attorney withdrawal request, or an unsigned proposed nonsuit order?

Texas AG Opinion JM-694: District Clerk Filing Duties

Plain-English summary

The Harris County Attorney asked what the district clerk had to do after receiving three kinds of documents in civil cases: a notice of dismissal, an attorney's request to withdraw from a case scheduled for dismissal, and a nonsuit motion combined with a proposed order that the judge had not signed.

The Attorney General described the clerk's role as ministerial. The clerk filed papers and recorded court activity, while judges made judicial decisions. Based on that division of responsibility, the opinion concluded that the clerk had to accept and record all three kinds of submissions.

A notice of dismissal had to be entered in the minutes and filed in the case. Correspondence asking to withdraw as attorney of record also belonged in the minutes and case file because it concerned the record the clerk maintained.

For a nonsuit, the clerk had to file the motion and proposed order and note the filing on the docket. The lack of a judge's signature on the proposed order did not turn the clerk's filing task into a judicial decision.

Currency note

This opinion was issued in 1987. 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

Did a district clerk decide whether a dismissal or nonsuit was legally valid?

No. The opinion distinguished the clerk's ministerial filing and recordkeeping functions from decisions reserved for a judge.

What did the clerk have to do with a notice of dismissal?

The clerk had to enter the notice in the minutes and file it in the civil case record.

Did an attorney's withdrawal request belong in the court file?

Yes. Because the request concerned who remained attorney of record, the opinion said the clerk should enter the correspondence in the minutes and file it in the case.

Could the clerk refuse a nonsuit submission because the proposed order was unsigned?

The opinion said the clerk still had to file the nonsuit motion and proposed order and note the motion on the docket. Signing or ruling on the proposed order was a judicial function.

Why did the timing of a nonsuit filing matter?

The opinion explained that, when the defendant had not already sought affirmative relief, the plaintiff's right to nonsuit existed from the moment the motion was made. Prompt filing therefore mattered to the procedural record.

Background and statutory framework

Government Code section 51.303 prescribed several district-clerk duties, including recording court acts and proceedings, entering judgments under the judge's direction, recording executions and returns, and performing other duties imposed by law.

Texas Rules of Civil Procedure 25 and 26 required file and court dockets recording the parties, attorneys, nature of the action, motions, proceedings, dates, and court rulings. Rules 162 and 163 addressed dismissals, while Rule 164 governed nonsuits. Rule 21 required a written application for an order to be filed and noted on the docket.

The opinion relied on Texas decisions describing the filing of papers and docketing of motions as clerk duties. Those cases also supplied the basic distinction the opinion applied: judges render judgments, while clerks enter and preserve the court's record.

Citations and references

Rules and statutes:

• Government Code section 51.303 (district-clerk duties and powers)
• Texas Rules of Civil Procedure 25 and 26 (file and court dockets)
• Texas Rules of Civil Procedure 162 and 163 (dismissals)
• Texas Rule of Civil Procedure 164 (nonsuits)
• Texas Rule of Civil Procedure 21 (written motions and docket notation)

Cases:

• Benge v. Foster, 47 S.W.2d 862, 864 (Tex. Civ. App. - Amarillo 1932, writ ref'd)
• Cooney v. Isaacks, 173 S.W. 901, 903 (Tex. Civ. App. - El Paso 1915, writ dism'd)
• Wooster v. McGee, 1 Tex. 17 (1846)
• Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978)
• Curtis v. Carey, 393 S.W.2d 185, 188 (Tex. Civ. App. - Corpus Christi 1965, no writ)
• Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)
• Newman Oil Co. v. Alkek, 657 S.W.2d 915, 920 (Tex. App. - Corpus Christi 1983, no writ)
• Green v. County Attorney of Anderson County, 592 S.W.2d 69, 73 (Tex. Civ. App. - Tyler 1979, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0694
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0694.pdf

Original opinion text

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

May 12, 1987

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-694

Re: Duties of a district clerk with regard to notices of dismissal filed in civil action and related questions

Dear Mr. Driscoll:

You inquire about those duties which the district clerk of Harris County must discharge in civil actions when the clerk receives: (1) "notices of dismissal," (2) "a request for withdrawal by an attorney from a civil action scheduled for dismissal," and (3) "a combined motion and order for non-suit filed in a civil action which was not signed by the Judge." Before proceeding to answer your questions, some preliminary matters need to be addressed.

The district court clerk's duties are prescribed by statute. In particular, section 51.303 of the Texas Government Code, governing the "duties and powers" of the clerk of a district court, sets forth the following:

(a) The clerk of a district court, in record books kept for that purpose, shall:

(1) record the acts and proceedings of the court;

(2) enter all judgments of the court under the direction of the judge; and

(3) record all executions issued and the returns on the executions.

(b) The district clerk shall keep in well-bound books an index of the parties to all suits filed in the court. The index must list the parties alphabetically using their full names and must be cross-referenced to the other parties to the suit. In addition, a reference must be made opposite each name to the page of the minute book on which is entered the judgment in the case.

(c) On the last day of each term of the court, the district clerk shall make a written statement of fines and jury fees received. The statement must include the name of the party from whom a fine or jury fee was received, the name of each juror who served during the term, the number of days served, and the amount due the juror for the services. The statement shall be recorded in the minutes of the court after it is approved and signed by the presiding judge.

(d) The clerk of a district court may:

(1) take the depositions of witnesses; and

(2) perform other duties that are imposed on the clerk by law. (Emphasis added).

The courts typically characterize the powers and duties of district clerks as ministerial functions. Benge v. Foster, 47 S.W.2d 862, 864 (Tex. Civ. App. - Amarillo 1932, writ ref'd). In Cooney v. Isaacks, 173 S.W. 901, 903 (Tex. Civ. App. - El Paso 1915, writ dism'd), the court asserted:

The duty to file papers and docket motions rests with the clerk, and it is the duty of that official to file all papers tendered for filing, and to docket all motions filed.

See also Wooster v. McGee, 1 Tex. 17 (1846) (the district clerk is responsible for filing all papers in a cause presented by the parties). The courts have therefore distinguished the clerk's ministerial duties from judicial determinations. See, e.g., Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) ("Judges render judgment; clerks enter them on the minutes.").

Rules 25 and 26 of the Texas Rules of Civil Procedure impose obligations upon the district clerk with respect to administering file dockets. Rule 25 of the Rules of Civil Procedure provides:

Each clerk shall keep a file docket which shall show in convenient form the number of the suit, the names of the attorneys, the names of the parties to the suit, and the nature thereof, and, in brief form, the officer's return on the process, and all subsequent proceedings had in the case with the dates thereof. (Emphasis added).

Rule 26 of the Rules of Civil Procedure provides:

Each clerk shall also keep a court docket in a well bound book in which he shall enter the number of the case and the names of the parties, the names of the attorneys, the nature of the action, the pleas, the motions, and the rulings of the court as made. (Emphasis added).

Notices of dismissal are governed primarily by Rules 162 and 163 of the Rules of Civil Procedure. Rule 162 provides:

The plaintiff may dismiss a case upon filing a notice of dismissal, which shall be entered in the minutes. A copy of the notice shall be served in accordance with Rule 21a on any party who has answered or has been served with process. (Emphasis added).

Rule 163 states:

When it will not prejudice another party, the plaintiff may dismiss his suit as to one or more of several parties who were served with process, or who have answered, but no such dismissal shall in any case be allowed as to a principal obligor, except in the cases provided for in Art. 2088 of the Revised Civil Statutes of Texas.

In our opinion, the reasonable construction of Rules 162 and 163 in light of Rules 25 and 26 requires the clerk to perform the ministerial acts of entering the notice of dismissal in the minutes and filing it in the subject cause. See also Benge v. Foster, 47 S.W.2d at 864 (clerk serves in ministerial capacity for court).

As to correspondence received by a clerk concerning the withdrawal of an attorney from a civil action, Rule 10 of the Rules of Civil Procedure provides:

An attorney of record is one who has appeared in the case, as evidenced by his name subscribed to the pleadings or to some agreement of the parties filed in the case; and he shall be considered to have continued as such attorney to the end of the suit in the trial court, unless there is something appearing to the contrary in the record. (Emphasis added).

Since the clerk is responsible for maintaining the "record" in a civil action, see generally Tex. R. Civ. Proc. 25 and 26; Govt. Code § 51.303, correspondence addressed to the clerk pertaining thereto, such as a request for withdrawal by an attorney, should be entered in the minutes and in the file by the clerk of the district court. See also Curtis v. Carey, 393 S.W.2d 185, 188 (Tex. Civ. App. - Corpus Christi 1965, no writ) (having once appeared as attorney of record for a party, an attorney, as an officer of the court, will continue to be attorney of record for that party until the trial court gives him permission to withdraw); State Bar Rules, V.T.C.S. Title 14 App. art. 10, § 9, Code of Prof. Resp., DR 2-110(A)(1).

Turning to non-suits, the rule governing a plaintiff's motion for non-suit provides:

Upon the trial of any case, at any time before plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. In the event a motion for sanctions is pending, or the party taking the non-suit has been ordered to pay either attorney fees or other costs, or both, as sanctions for failing to comply with court orders and has failed to pay such fees or costs, or both, the non-suit shall have no effect upon the liability for attorney fees, sanctions, or other costs.

Tex. R. Civ. Proc. 164. When the defendant has not sought affirmative relief prior to plaintiff's motion for non-suit, the Texas Supreme Court has liberally construed Rule 164 as favoring plaintiff's right to take a non-suit unencumbered by any requirements extrinsic to Rule 164. See Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982); Newman Oil Co. v. Alkek, 657 S.W.2d 915, 920 (Tex. App. - Corpus Christi 1983, no writ).

Although Rule 164 does not specify any duties for the district clerk concerning motions for non-suits, motion practice in civil cases requires in part the following:

An application to the court for an order, whether in the form of a motion, plea or other form of request, unless presented during a hearing or trial, shall be made in writing, shall state the grounds therefor, shall set forth the relief or order sought, and shall be filed and noted on the docket. (Emphasis added).

Tex. R. Civ. Proc. 21. The word "shall" is generally construed to be mandatory. Green v. County Attorney of Anderson County, 592 S.W.2d 69, 73 (Tex. Civ. App. - Tyler 1979, no writ); Attorney General Opinion JM-561 (1986). Accordingly, a district clerk must file in the record and note in the docket a motion for non-suit and its accompanying proposed order. The clerk's fulfillment of these duties in a timely manner is especially significant in that the plaintiff's right to a non-suit exists from the moment a motion for non-suit is made, unless the defendant has, prior to that time, sought affirmative relief. Greenberg v. Brookshire, 640 S.W.2d at 872.

SUMMARY

When the clerk of the district court receives a notice of dismissal, a request for withdrawal by an attorney from a civil action scheduled for dismissal, or a motion for a non-suit with an accompanying proposed order, the duty of the clerk with respect to each of these documents or instruments is to enter them in the minutes and file them in the record of the subject cause.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jeff Millstone
Assistant Attorney General