DAN MORALES

ATTTORNEY GENERAL 

## QBffice

of tip 9lttornep &ate of ‘PCexai3 May 2, 1996 

## Qhneral

The Honorable lames W. Carr Lavaca County Attorney Box 576, Second Floor Courthouse HakttsviUe, Texas 77964 Opinion No. DM-389
Re: Whether a county clerk must file a judgment issued by a “common law 

### court” (RQ-876)
Dear Mr. Carr:
You have requested our opinion as to whether a county clerk must file ajudgment rendered by a “common law” court.
In recent years, the so-called “Republic of Texas” movement has harassed various local public officials by, among other things, conducting %ials” in self-styled “common law” courts of the movement’ s invention, and attempting to the the “ judgments” resulting from those trials, and other such documents, including phaadings, in the law&l district and county courts of this state.’ In the most recent reported instance, two individuals, at odds with the federal Farmer’ s Home Administration over a prior debt, filed false XC-1 financing statements against three United States Department of Agriculture employees named as “debtors.” 

### United Srales v. Greenstree~, 912 F.Supp. 224, 227 @I.D. Tar. 

### 1996).2 Some clerks of courts have been misled by the attempted filings of these bogus papers, apparently because, at first glance, they appear to be similar in form to documents routinely filed in the courts of the Texas. Invariably, however, they indicate on their thee

%eveoexamplesofthe kindof “dommems” at issuearereproduced

as appendices

to the court’s decision in Kimmel

Y.BunterCounty

Apposal District, 835 S.W.2d 108, 109-115flex. App.-Austin 1992,writdian’d w.0.j.).

Gmenswetarguestha~heisof”Freunan chamcwand’ofthewhite Preamble Citizemhip and not oae of the 14th Amendment legidated enfranchiacd

DCFacto eolomd races.” He furlherclaims that he is a “white Pxamble natural

sovereignCommon

LawDe Ime Citizenof the Repubiiclstatc of Texas.” As a msult, he concludesthat he is a wvereign, not subjectto the jmhdiction ofthis Court. Gmemlreet,912 F. Supp.at228.The Honorable James W. Carr - Page 2 @M-389)

the purported existence of the “common law wurts of the Republic of Texas,” or similar bodies which have no legal existence except in the minds of the partisans of this movement. 

### As the court said 

### in Kimmel: “We hold that the Common Law Court for the Republic of Texas, if it ever existed, has ceased to exist since February 16, 1846.” Kimmel, 835 S.W.2d at 109.
The Texas Constitution states, in article V, section 1: The judicial power of this State shag be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace. and in such other wurts as may be provided by law. The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior wurts thereto. These specifd courts, together with those statutory wurts which the legislature has created, such as municipal courts, county wurts at law, and the various specialized courts existing in the larger counties, wnstitute the only courts in which is vested the “ judicial power of this State.” Tex. Const. art. V, 3 1. No “common law wurt,” whether of the so-called “‘Republic of Texas” or otherwise, is among those ordained by wnstitution or statute. Section 191.001(c), Local Govemment Code, provides: “The county clerk shag record, exactly, without delay, and in the manner provided by this subtitle, the wntents of each instrument that is filed for recording and that the clerk is authorized to record.” A document specifying on its face that it is a judgment of a “wmmon law” wurt is not one
“that the clerk is authorized to record.” Section 192.001, Local Government Code, states:

“The wunty clerk shall record each deed, mortgage, or other instrument that is required or permitted by law to be recorded.” An instrument originating from a “common law’ wurt is not one “that is required or permitted by law to be recorded.” Fiiy, section 192.004, Local Government Code, provides: “The wunty clerk shall record separately from a deed or other wnveyance each deed of trust, mortgage, or judgment that is required to be recorded to create a judgment lien and every other instrument that is intended to create a hen.” A purported lien 

### from a 

### “wmmon law” court is not a lawful instrument and therefore cannot create a hen. In 

### Bernard v. Crowell, 38 S.W.2d 912 (Tex. Civ. App.-San Antonio 1931, no writ), the wurt said that “the clerk of a trial court has no discretion in the matter of filing papers recognized by law as properly belonging in the record of causes.” Any document that purports to be an order or judgment from a “common law” court is not one that is “recognized by law as properly

p. 2134The Honorable James W. Carr - Page 3 @M-389)

belonging in the record of causes,” because a “common law” court is not a legally wnstituted wutt under the constitution or statutes of this state. County and district clerks should reject any document that indicates on its face that it is to be tiled in, that it is an order or judgment from, or that it is a notice of a removal petition to, any purported state or local court not so named in wnstitution or statute.) A clerk should maintain a list of legitimate wurts ready at hand to assist in this de-termination, and should of course consult his or her county or district attorney should any questions arise. Local officials may also wish to post notices advising of the legal wnsequences that attach to the filing of fraudulent lien~.~ Furthermore, county and district attorneys would be well advised to draw up a set of detailed guidelines to assist clerical employees in assuring that no legitimate fdings are denied, and that both state and federal wnstitutional requirements are strictly observed. In some instances, it might be newssary for prosecutorial officials to monitor filings to ensure compliance with the law.5

‘We note that if districtand countyclerks have aheady acammlateda numberof docoments rrlatin~tothe~led”RepublicofTuas,~theymaykableto~oftheminaccorQnawith the portions

of therecords

retention statotes thatrelate

to d+mction ofmcotds. See LocalGov? Cede chs. 202 (terms under which local gowrmneo tal mxwds may be demmycd),203 (dnties of recotds a&odiaWforlocalgovunmen tal bodies); see also Gov’t Code ch. 441, subch. J (revisionsto local gomnment ncords retentionaebedulcs). We caution, bower, that local 0Bicials should oxacise caution in this regard,since se&ion552.351, Government Code,createsa criminaloffer&e for willfol destruction

of mcor4 i.e. notin compliance with statotory

rcguitemont.

‘In 1995, the legislahue amendedchapter9 of the Texas Uoiform commmial Code to add section9.412, which forbids thefiling ofa fraudulent

lieo, curates

a cue of actionin favorof the owner of property

coveredby the fmodulendy filed fmancing statement,aod makes such iiliog a crimioal o&me. See Bus. &Corn.Code5 9.412.

‘Individuals chiming to be Wizens” ofthe “Republic of Texas”leaveno doubtthatthey meen business,sod theyroutinely issoe publicthreats

to -bring down”govemmen t. Ioarecentaddresshefore aboot 300 sopportetsat the State Capitol, the “pnwisiooal xzmtary of defense” of the “kpoblic” dcdarcd: In abom two we&, we cmk op to the next rootui. When we start going

after...prsonalpropaty,it’ sgoingtogctrealserious. Ifwehavotobringthe whole govemmemto a haltin order to getlegal reviewbefore the Legislature

m theycan determine

theirlaw&lstatus,

we’ll do it. Jeffry Needham,Republic Leaders Give Notice To Govcmor, IRS, SAN ANIDNIOEXPRESSNEWS, Mar. 19,1996, at 3B.

p. 2135The Honorable James W. Carr - Page 4 @M-389)

‘,. ..,_ JrMMARY A district or wunty clerk should not accept for tiling any document that indicate-s on its face that it is to be fded in, that it is an order or judgment from, or that it is a notice of a removal petition to, any purported state or local court not named in the constitution or statutes of the state of Texas. County and district attorneys should assist clerical employees in making certain that no legitimate tilings are denied, and that state and federal wnstitutional requirements are strictly observed.

DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General
SARAH J. SHIRLEY Chair, Opiion Committee

p. 2136