Our commissioners court dutifully enacted a $30.00 filing fee for divorce cases filed in our county in accordance with Senate Bill 6 -Government Code Sec. 51.961.
The District Clerk posted notices of the fee increases. Yesterday, the AG said the fee was unconstitutional. (GA-0387). My clerk wants to know: collect it all, collect the county portion, or collect none? Any thoughts appreciated.

Good question. The opinion only finds section (g) unconsitutional. That's the provision that deals with disbursing half of the fee. The opinion doesn't say anything about section (a)which orders the collection of the fee. So the clerk shall collect it but cannot disburse half of it?

I told our clerk to continue to collect the County's half, which was held to be constitutional in the previous opinion, and which is the same amount as before the change in the law.

Could it be, however, legal for the clerk to collect the entire fee and to send half to the comptroller, but only unconstitutional for the comptroller to disburse it to the trust account?

Well, at this point, it's just an AG opinion. Doesn't a court have to rule before there is a change in law?

I have told my District Clerk to collect only the county's half of the fee.

John's point about the determination at issue coming from an attorney general's opinion, as opposed to a court ruling, is a salient one. The concurrent issue to be weighed, however, is whether any of our counties want to be the "test case" that could transform the AG's opinion into "real" law. That's not to say the AG opinion is a lock to jettison the objectionable provision, however. A few years back, there were AG opinions suggesting that the court at law conviction fee was unconstitutional as a conduit for unequal punishment as between the various counties in the state. A lawsuit making the same arguments found in the AG opinions followed. The state (ironically enough, represented by the AG) and the defendant counties ultimately won that suit.

The problem I see is that fee statutes are not discretionary for clerks. They must collect the fee stated. But that seems to leave our counties over a barrel. Collecting a fee for which there appears to be no coordinating expenditure purpose related to support of the judiciary, in the face of an opinion providing notice of the statute's perceived deficiency, seems risky. That the purpose for the fee is invalidated, but the fee itself isn't expressly condemned, appears to be a distinction without a difference. In other words, it's no better to collect a filing fee for a non-existent reason than for an improper reason. And while the opinion is not binding precedent, it's much more likely to find a receptive judicial ear (since it reiterates the Lecroy v. Hanlon mantra that filing fees can only go toward support of the judiciary) than matters with no bearing on judicial budgets.