The Honorable Tom

Criminal District JeffersonCounty P. 0. Box 2553 July5,1976

Hanna Attorney. Opinion **No. H-843** 

Re: Abstracts of Judgments rendered in tax suits Beaumont, Texas 77704 Dear Mr. Hanna: You have asked severalquestions about the effect of abstracting judgmentsobtained in tax suits:

(1) Should the District Clerk of Jefferson County issue abstracts of.jutigments in tax suits? (2) Does the abstract of judgment affect only the real estate subject'tothe tax suit and would an order of sale,generally issued after 30 days, negate the abstract **of** judgment, therebymaking the issuance of said abstract superfluous? (3) Would the abstract of judgment create a cloud or lien on other real properties own,ed by the Defendant in the tax suit, and, if so,would the District Clerk's office be subject to litigation,fordamages because of its position as issuing authority? Article 5447,V.T.C.S., specifies:

Each clerk of a court,when the person in whose.favor a judgmentwas rendered,his agent, attorney or assignee, applies therefore, shallmake out, certifyunder his hand and official seal, and deliver to such applicant upon the payment of the fee allowed by law, an abstract of such judgment showing:

**p. 3554** The Honorable Tom Hanna - page 2 (H-843)

(1) The names of the plaintiff and of the defendant in such judgment; (2) The birthdate and driver's license number of the defendant
. . .

. . . (6) The amount forwhich the judgment was rendered and balance due thereon
. . .

. . . A certificateof the proper officer,whatever its form, which shows the essential facts requiredby the appropriate statute constitutesan "abstractof judgment." Gullett Gin .Co.v. Oliver, 14 S.W. 451 (Tex.Sup. 1890). - -- By article 5448,V.T.C.S.,'the County Clerk is required to record and index abstracts of judgments. Article 5449, V'.T.C.S.

provides: When any judgmenthas been so recorded and indexed
. . . it shall
. . .operate as a lien upon all the real estate of the defendant situated in the countywhere such record and index are made, and upon all real estate which the defendantmay thereafteradquire, situated in said county . . . . Thus, a properly recorded and indexed abstractof a judgmentagainst a defendant establishesa judgment lien upon all non-exempt real estate of the defendant in the county, includingproperty later acquired. Baker v. West, 3~6 S.W.Zd 695 (TeX.Sup. 1931); Richeyv. Mos4TS.W. 172 (Tex.Sup. 1923);Cheewickv. Weaver, 2m -2d 942 (Tex. Civ.App. -- Beaumont 195S,yrref'd n.r.e.); Blum v. Keyser, 28 S.W. 561 (Tex.Civ. App. -- 1894,no writ). -- Real estate ordered sold to satisfya judgment in a tax lien foreclosure suitmight sell for an amount less than the judgment,but if the judgment is also a personal judgment against the defendant, the personal liabilityof the judgment

p.3555The Honorable Tom Hanna - page 3 (H-943)

debtor remains for the balance. Shugar: 5 Nocona Inde endent School District, 289 S.W.2d 243 (Tex.Civ.App. -- @T2imi mno writ); Watts v. Cit of El Paso, 183 S.W.Zd 249 (Tex.Civ. App. q %&o-4 4G GFitref'a w.0.m.); Slum v. Keyser, supra;V.T.C.S. arts. 7345b, 732Sa, 7328.1. In answer to your first question, the clerk is required by statuteupon request of the successfulplaintiff to issue an ab6tract of judgment in tax suitswhich result in a personal judgmentagainst a defendant. The answer to your second question is~that a~judgment lien extends to all nonexempt real estate of the defendant in the county, and if a personal judgmentresulting from the tax suit is not satisfied by a tax lien foreclosure sale of the real estate subject to the tax, the issuanceof the abstract of judgment to establish the judgment lien for the balance still due ,isnot superfluous. Your third question iswhether the abstract of judgment creates a cloud or lien on other real property owned by a defendant in a tax suit. Insofar as non-exemptproperty is concerned, the answer is yes,until the judgment is satisfied. V.T.C.S. art. 5449. Judgment liens do not cloud exempt property. See Richeyv. Moor, supra. -- The other part of your third question iswhether the issuanceof an abstract of judgmentwould subject the

,., District Clerk to litigation for damages. The clerk can incur no personal liability for issuing an abstract of judgment in a proper case. He is commandedby the statute t0 a0 it. V.T.C.S. art. 5447. See 47 Tex. Jur. 2d, Public .Officers9 130, et seq. -
SUMMARY The abstract of a personal judgment rendered against a defendant by a court in a tax suit shouldbe issued as article 5447,V.T.C.S. directs, even though the judgment additionally forecloses a tax lien on particular property. When recorded and indexed,

p.3556I .-

The Honorable Tom Iianna- page 4 (H-843)

the abstract of an in judgment creates a men aga nst all ==TF non-exempt real property of the defendant located in the county. The Clerk incurs' no personal liability for issuing an abstract of judgment in a proper case. @ry trulyyours,

APPROVED: Attorney General of Texas

DAVID
. , rs ssis an

Opinion Committee ,jwb

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