c -.-...



# The Attorney General of Texas

March19,1981 MARK WHITE Attorney General Honorable Patricia A.Elliott Criminal District Attorney Taylor County Courthouse Abilene, Texas 79602 Opinion No. k3+366 Re: Collection of fees from city, school district, and water district for filing abstract ofjudgment Dear Ms.Elliott: When a plaintiff recovers a favorable judgment in a suit for the collection of~delinquent taxes, he may place alien upon the property ofthe judgment debtor by securing an abstract of juclgment, see article 5447, V.T.C.S., and by filing it in the real property records inthe office of the county clerk of the county in which the property is located. The property thereby becomes encumbered in favor of the judgment creditor. You have asked whether the city ofAbilene, the Abilene Independent School District, and the West Central Texas Municipal Water District are liable for the payment of the $3.00 fee charged by the Taylor County clerk for recording abstracts ofjudgment The taxing authorities assert that this fee isincluded among the court costs mandated by article 39304 V.T.C.S., and, therefore, that article 7297, V.T.C.S., exempts them from having topay it. Article 5447, V.T.C.S.;provides that:

Each clerk of a court, when the person in whose favor ajudgment wasrendered, hisagent, attorney or assignee, applies therefor, shall make out.
.. and deliver to such applicant upon the payment ofthe fee allowed bylaw, anabstract ofsuchjudgment

. .. Statutory authority for the. $3.00 fee charged by the county clerk for recording abstracts ofjudgment inthe real property records ofthe county is conferred byarticle 3930(2)(a), V.T.C.S. Article 7297, V.T.C.S., provides that district orcounty attorneys shall:

. .. institute suit in the name of the State for recovery of.

.. taxes due and unpaid on unrendered personal property; and in all suits where juaments are obtained under this law, theperson owning the property on which there are taxes due.

.. shall be

n. 982. -Honorable Patricia A.Elliott - Page Two

liable for all costs. The State and county shall beexempt from liability for any costs growing out of such action. (Emphasis added). This exemption also applies to school districts and municipal corporations which are authorized to levy andcollect their owntaxes. V.T.C.S. article 1060a. Article 39304 V.T.C.S., sets forth various fees to be charged by county clerks and clerks of county courts for services rendered incauses of action on the docket of the county court It is well established that article 7297 exempts the aforementioned taxing authorities from liability for payment of court costs In suits for the collection of delinquent taxes. Nacogdoches Independent School District v.McKinney, 513S.W.2d5 (Tex. 1974);Electra Independent School District v. W.T.Wsggoner Estate, 168S.W.26 645 (Tex. 1943); City of Houston v. McCarthy, 371S.W. 2d 587 (Tex. Civ. App.- Houston 1963,writ reM n.r.e.1; South Lake Independent School District v. Easterling 142S.W. 2d 237 (Tex. Civ. App.-Beaumont 1940, writ rePdX The Texas Supremd Court has recently held that this exemption also applies to court costs arising inabill of discovery suit initiated as an aid to the enforcement of a prior delinquent tax judgment State v. U.T.L. Aeronautics, Inc., 590S.W.2d 120(Tex. 1979). Inthat case, the court observed that:

It is our opinion that the State’s action grows out of and is grounded upon its judgment in the prior suit for taxes and relates solely to the enforcement ofthat judgment. But for the prior juement, there would be no basis for the State’s bill of discovery suit. 590 S.W.2dat 12L It is urged ln an accompanying brief that the need for filing sn abstract of judgment in the records ofthe county clerk also exists solely by virtue ofthe prior tax judgment Inother words, but for the judgment Inthe delinquent tax suit, there would be no basis for securing and filing an abstract ofjuament in order to encumber the judgment debtor’s property. Accordingly, the recording fee - which, it iscontended, isincluded among the costs to be taxed upon the initial flllng ofthe suit under article 3930b - is a cost which ‘grows out of ” the cause of action within the meaning of article 7297. The quoted passage from State v. U.T.L.~Aeronautlcs, Inc., s&ra, is relied uponasauthority for this proposition. In our opinion, however, this argument is without merit. Article 3930b neither, explicitly nor, we think, implicitly provides that a fee charged by a county clerk for recording an abstract ofjudgment in the county records is to be included among the costs to be taxed upon the initial filing ofasuit for the collection ofdelinquent taxes. See section 2(a). We do not think the legislature Intended for the article 7297 exemption to spply to fees for services performed during the course of a taxing authority% efforts to implement the post-judgment enforcement option of placing a

p. 983. -0

. .

Honorable Patricia A.Elliott - Page Three

lien on ajudgment debtor’s property through the filing of an abstract ofjudgment in the county records. See Attorney General Opinion WW-658(1959). State v. U.T.L. Aeronautics, Inc., supra, does not compel adifferent conclusion. That case merely held that the costs arismg out of abill ofdiscovery suit brought by the state to determine whether a corporation had sufficient property to satisfy aprior delinquent tax judgment related solely to the enforcement of that judgment and therefore grew out ofthe judgment within the meaning ofarticle 7297. It furnishes no authority for an agument regarding fees involved in exercising a post-judgment enforcement option which does not involve litigation. We therefore conclude that the fee charged by the Taylor County clerk for recording abstracts ofjudgment in the county records isnot part ofthe “costs growing out of ” the original delinquent tax suit within the meaning of article 7297, V.T.C.S., and, accordingly, that the three aforementioned taxing authorities are not exempt from liability for payment ofit. SUMMARY

Article 7297, V.T.C.S., does not exempt the city ofAbilene, the Abilene Independent School District, and the West Central Texas Municipal Water District from liability for payment of the fee charged by the Taylor County clerk for recording abstracts of juc$gment in delinquent tax suits in the real property records ofTaylor County. Very truly your%

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L.Garrison, Chairman James Allison Jon Bible Rick Gilpin

p. 984