Can a Texas district clerk charge a filing fee to transfer a child support enforcement case to a new county?

Texas AG Opinion JM-939: No Fee to Transfer a Child Support Case

Plain-English summary

Child support cases follow the child. When a court in Texas enters a support order and the child later moves to a different county, the case can be transferred to the new county so a court there can handle any future motions to change or enforce the order. The Trinity County Attorney asked a narrow but practical question: when that transfer happens, can the district clerk charge a filing fee for it?

The Attorney General said no.

Start with how these cases work. Once a court takes on a suit affecting the parent-child relationship, it keeps exclusive control of the case going forward, unless a specific exception applies. Section 11.06 of the Family Code is one of those exceptions: it lets the case move to the county where the child now lives. When it moves, the new court becomes the court of continuing jurisdiction, and all the existing orders carry over and are enforced as if they had started there.

Now the fee question. There is an apparent clash between two sets of rules. A general procedural rule, Texas Rule of Civil Procedure 89, says a court can dismiss a case that was transferred on a change of venue if a new filing fee is not paid. But the Family Code speaks directly to filing fees in these cases, and it says no additional filing fee may be collected in a suit affecting the parent-child relationship when a party files a motion to modify a decree or a motion to enforce an order.

The Attorney General had construed that language before. The word "additional" points back to the original filing fee paid when the suit first started. In other words, the cost of later filing a motion to modify or enforce is already covered by that first fee. The legislature did not merely waive the fee for the motion itself; it excused the filing party from all additional filing fees in the suit. That makes sense, because if the child has moved, a transfer may be the only way to get a court that can actually rule on the motion. The legislature wanted no filing costs standing between a parent and the enforcement or modification of a support order, so a party need not pay for the motions or for the transfer needed to decide them.

That left the conflict between the general rule and the Family Code. The Attorney General concluded the Family Code wins. A Texas appellate court had already held that the Family Code's transfer procedures were designed to replace the ordinary venue rules in the Rules of Civil Procedure. Following that reasoning, the Family Code's no-fee provision replaces Rule 89's pay-or-dismiss provision. So the clerk may not charge a fee to file the transfer papers in a child support enforcement action moved under section 11.06.

Currency note

This opinion was issued in 1988. 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.

The Family Code has been extensively reorganized since 1988. The suit-affecting-the-parent-child-relationship provisions once in chapters 11 and 14, including the transfer and filing-fee rules discussed here, have been renumbered into the current Family Code (transfers now appear in chapter 155, and the no-additional-fee rule in the modification and enforcement chapters). The core principle, that a party seeking to modify or enforce a support order is not charged extra filing fees, has carried forward, but the section numbers have changed. Anyone handling a child support transfer today should rely on the current Family Code and current rules rather than the 1988 citations here.

Who this opinion affected (as of 1988)

Parents and custodians seeking support enforcement: The opinion protected them from a transfer filing fee when a child support case followed a child to a new county, keeping the courthouse door open without an added charge.

District clerks: The opinion told clerks they may not collect a fee for filing transfer papers in these cases, though it left intact the clerk's ability to collect a deposit for expected costs in the proceeding.

Courts: The opinion resolved the tension between Rule of Civil Procedure 89 and the Family Code in favor of the Family Code's fee rule for parent-child cases.

Common questions

Do I have to pay a filing fee to move my child support case to a new county?
No. The Attorney General concluded a district clerk may not charge a fee for filing papers in a child support enforcement action transferred under section 11.06 of the Family Code.

Doesn't Rule 89 let a court dismiss a transferred case if the fee isn't paid?
Rule of Civil Procedure 89 says that generally, but the Attorney General concluded the Family Code controls in a suit affecting the parent-child relationship, so its no-additional-fee rule replaces Rule 89 here.

Why is there no fee?
Because the Family Code says no additional filing fee may be collected when a party files a motion to modify or enforce an order, and "additional" refers back to the initial filing fee. The initial fee already covers those later motions and the transfer needed to decide them.

Can the clerk still collect anything?
Yes. The statute does not prohibit the clerk from collecting a deposit, set as in other cases, for expected costs and other expenses arising in the proceeding. What is barred is an additional filing fee.

Background and statutory framework

When a court acquires jurisdiction of a suit affecting the parent-child relationship, it retains continuing exclusive jurisdiction of all parties and issues unless an exception exists under section 11.06 or 17.06 of the Family Code (Family Code section 11.05). Section 11.06(b) addresses transfer of a proceeding to the county where a child has moved and currently resides. Under section 11.06(k), the court to which a transfer is made becomes the court of continuing jurisdiction, all proceedings continue as if brought there originally, and all judgments, decrees, and orders transferred have the same effect and are enforced as if originally entered in the transferee court (Fassy v. Kenyon, 675 S.W.2d 217 (Tex. App. - Houston [1st Dist.] 1984, no writ)).

Texas Rule of Civil Procedure 89 provides that a court may dismiss a case transferred on a change of venue if a new filing fee is not paid. The Family Code, however, addresses filing fees when a motion for enforcement of an order is filed: no additional filing fee may be collected or required in a suit affecting the parent-child relationship when a party files a motion to modify a decree under section 14.08 or a motion for enforcement of an order under section 14.09 or 14.091, though the clerk may still collect a deposit set as in other cases for expected costs. (A separate provision also labeled section 14.13 bars a clerk from charging a fee for services in an action in which the attorney general is representing a party to obtain child support; Attorney General Opinion JM-396 (1985) concluded the overlap in labeling was a clerical error and both provisions are valid.)

Attorney General Opinion JM-396 (1985) construed the fee provision, explaining that the word "additional" refers to the initial filing fee in the suit affecting the parent-child relationship, so the cost of filing motions to modify or enforce orders is covered by the initial filing fee. The legislature did not merely excuse a party from paying a fee for the motion, but excused a party who files a motion from all additional filing fees in the suit. Because a transfer may be necessary to adjudicate a modification or enforcement motion when the child has moved, a party need not pay a fee for the motions or a fee for the transfer necessary to adjudicate them.

On the conflict between Rule 89 and the Family Code, the Family Code controls. In Beyer v. Diaz, 585 S.W.2d 359 (Tex. Civ. App. - Dallas 1979, no writ), a motion to transfer was granted in a parent-child proceeding under section 11.06, and the appellate court held that the transfer procedures in the Family Code were designed to supplant the regular venue rules in the Rules of Civil Procedure. Based on that authority, the cost provision of the Family Code supplants the cost provision of Rule 89, and a district clerk may not charge a fee for filing papers in a child support enforcement action transferred under section 11.06.

Citations

Statutory authority:

• Section 11.06, Family Code (transfer of a suit affecting the parent-child relationship)
• Section 11.05, Family Code (continuing exclusive jurisdiction)
• Section 14.13, Family Code (no fee where the attorney general represents a party to obtain child support)
• Section 14.131, Family Code (no additional filing fee for a motion to modify or enforce)
• Texas Rule of Civil Procedure 89 (dismissal of a transferred case for nonpayment of a new filing fee)

Cases:

• Fassy v. Kenyon, 675 S.W.2d 217 (Tex. App. - Houston [1st Dist.] 1984, no writ) (Texas appellate court; transferee court becomes court of continuing jurisdiction)
• Beyer v. Diaz, 585 S.W.2d 359 (Tex. Civ. App. - Dallas 1979, no writ) (Texas appellate court; Family Code transfer procedures supplant the regular venue rules)

Prior Attorney General materials referenced: JM-396 (1985).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-939
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0939.pdf

Original opinion text

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

August 16, 1988

Honorable Joe Warner Bell
Trinity County Attorney
P. O. Box 979
Groveton, Texas 75845

Opinion No. JM-939

Re: Whether a district clerk may charge a fee for filing transfer papers in a child support enforcement action (RQ-1466)

Dear Mr. Bell:

You ask whether a district clerk may charge a fee for filing papers in a child support enforcement action transferred pursuant to section 11.06 of the Family Code.

When a court acquires jurisdiction of a suit affecting the parent-child relationship, it retains continuing exclusive jurisdiction of all the parties and issues unless an exception exists under section 11.06 or 17.06 of the Family Code. Fam. Code section 11.05.

Your question concerns the transfer of a case under subsection (b) of section 11.06 of the Family Code, which, among other things, addresses a transfer of a proceeding to the county where a child has moved and currently resides. Under your scenario it appears that prior to the change of residence of the child an order for support had been entered by the transferring court.

Subsection (k) of section 11.06 states:

A court to which a transfer is made becomes the court of continuing jurisdiction, and all proceedings in the suit are continued as if it were brought there originally. All judgments, decrees, and orders transferred shall have the same effect and be enforced as if originally entered in the transferee court.

See Fassy v. Kenyon, 675 S.W.2d 217 (Tex. App. - Houston [1st Dist.] 1984, no writ).

Texas Rule of Civil Procedure 89 provides that a court may dismiss a case transferred on a change of venue if a new filing fee is not paid. Section 14.13 of the Family Code, however, addresses the matter of filing fees to be collected when a motion for enforcement of an order is filed. Section 14.131 provides:

No additional filing fee may be collected or required in a suit affecting the parent-child relationship when a party to the suit files a motion to modify a decree under Section 14.08 of this code, or when a motion for the enforcement of an order is filed under Section 14.09 or 14.091 of this code. This section does not prohibit the clerk from collecting a deposit in the amount set by the clerk as in other cases for payment of expected costs and other expenses arising in the proceeding. (Emphasis added.)

Section 14.13 was construed in Attorney General Opinion JM-396 (1985) where it was stated:

That provision makes clear that the district clerk may not charge a fee for a motion to modify a decree or a motion for enforcement of an order in a suit affecting the parent-child relationship. Apparently the district clerk's question arose because of uncertainty about the interpretation of the phrase "no additional filing fee" in that provision. We think that the word "additional" is a reference to the initial filing fee in the suit affecting the parent-child relationship. In effect, the provision means that the cost of filing motions to modify or motions to enforce orders is covered by the initial filing fee. (Emphasis added.)

[Footnote 1: Another provision also labeled section 14.13 of the Family Code provides: A clerk, auditor, sheriff, or other government officer or employee may not charge a fee or other amount for services rendered in connection with an action or proceeding in which the attorney general of this state is representing a party for the purpose of obtaining child support. In Attorney General Opinion JM-396 (1985) it was concluded that the two sections are not in conflict and the "overlap in labeling is nothing more than a clerical error. Thus, both amendments are valid."]

When a party to a suit affecting the parent-child relationship desires to seek modification or enforcement of a decree, the legislature has provided that no additional fee is to be collected in the suit. The legislature has not excused a party merely from paying a filing fee for the motion for modification or enforcement, but instead has excused a party who files a motion from all additional filing fees in the suit. This provision makes sense. If the child has moved, a transfer may be necessary to adjudicate any motion for modification or enforcement of the decree governing the parent-child relationship. The legislature wants no filing costs attached to seeking modification or enforcement. Thus, the legislature has provided that a party who seeks modification or enforcement of a decree need not pay a fee for filing the necessary motions or a fee for the transfer necessary to adjudicate such motions.

Your concern is how to resolve the conflict between Texas Rule of Civil Procedure 89 and section 14.13 of the Family Code. We believe that the Family Code controls. In Beyer v. Diaz, 585 S.W.2d 359 (Tex. Civ. App. - Dallas 1979, no writ), a motion to transfer was granted in a proceeding concerning the parent-child relationship pursuant to the provisions of section 11.06. The appellants contended that they were entitled to an appeal under the then Rules of Civil Procedure in that the action of the trial court amounted to a change of venue in a plea of privilege proceeding. In dismissing the appeal the appellate court held that the transfer procedures in the Family Code were designed to supplant the regular venue rules in the Rules of Civil Procedure. Based upon this authority, we conclude that the cost provision of section 14.13 of the Family Code supplants the cost provision of Texas Rule of Civil Procedure 89.

SUMMARY

A district clerk may not charge a fee for filing papers in a child support enforcement action transferred under section 11.06 of the Family Code.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General