## QBffice of tip Bttornep&neral

DAN MORALES Al-rORNF.Y GENERAL 

## %tate of Qexas

November20.1995

Mr. Kenneth

H. Ashworth Opiion No. DM-366 Commissioner Texas HigherEducation CoordinatingBoard P.O. Box 12788 Austin,Texas 78711-2788 Kc Whether a duly recorded abstract of a valid, nondormant, and urdschged judgment may constitute (1) a cloud on the judgment debtor’ s title to homestead propetty located in the county where the abstract is recorded and (2) a slander of the judgment debtor’ s homestead title (RQ-784)

Dear Mr. Ashwolth:

You have asked us whether the Texas HigherEducation CoordinatingBoard must issue a partial release of a student loanjudgment hen on real property that a judgment debtor cleims as homestead. You cite the case of Tbrrcnt w v. Miller, 833 S.W.Zd 666 (Tar. App.-Bastland 1992, writ denied), as cause for your concern that a judgment lien that is not partiallyreleased as to the debtor’ s claimedhomestead may cast a cloud on the debtor’ s title and that ajudgment creditor’ srefusalto releasethe lien as to the claimed homestead may wnstitute a slander of the debtor’ s title. We therefore understand

you to ask whether a duly recorded abstract of a valid, nondormant, and undischarged judgment may constitute (1) a cloud on thejudgment debtor’ s title to homesteadproperty located in the wunty where the abstract is recorded and (2) a slander of the judgment debtor’ s homestead title. Before turning our attention to the T-t&m& case, we willreviewthe nature ofthejudgment lien and the effectit has on a homestead.

Thejudgment hen is a creature of statute. 04 SfufeBunk v. Bailey, 214 S.W.2d 901, 903 (Tex. Civ. App.-Amarillo 1948, writ refd). Section 52.001 of the Property Code establishesthe hen as follows:

Except as provided by Section 52.0011, [which deals withthe establishment of a judgment lien pending appeal,] a first or subsequent abstract ofjudgment, when it is recorded and indexed in accordance with this chapter, if the judgment is not then dotmant, wnstitutes a lien on the real property of the defendantlocated in the county in which the abstract is recorded and indexed, inchniingreal property acquired afler suchrecording and indexing.Mr.KennethH.Ashworth - Page2 (DM-366)

See also Prop. Code 4 52.003 (abstract must show names of parties; defendant’ s birth date and driver’ s license number if available;case docket number under whichjudgment
was rendered; defendant’ saddress if shownin suit, or nature of citation and date and place of service; date of rendition ofjudgment; amount for which judgment was rendered and balance due; amount of balance due for child support arrearage; and judgment interest rate).

The homestead is protected by wnstitutional and statutory provisions. Section 50 of article KVJ of the Texas Constitution protects the homestead from forced sale for the payment of any debt other than for purchasemoney, taxes on the homestead,or labor and materials used in improvingthe homestead. Section 50 also makes void any wmmch~I hen against the homestead other than for purchase money or home improvements. If the election held on November 7. 1995, results in the adoption of the Seventy-fourth Legislature’ s Senate Joint ResolutionNo. 46 (whichresult appears probable’ ). section 50 will be amended to add to the kinds of debts far which forced sale and valid hens are permitted (1) an owehy of partition resultinggem a divisionor award of the homesteadin
a divorce proceeding and (2) n&axing of a lien againstthe homestead. See S.J. J&x 46, 74th Leg., RS., 1995 Ten. Sess. Law Serv. pamphlet 8, at A-10. Section 41.001 of the Property Code is the statutory wunterpart to article KV& section 50. See Prop. Code 0 41.001, arnettai?~by Act of May 8, 1995, 74th Leg., RS.. ch. 121, art. 1. 1995 Tex.
sess. Law serv. 933.

The wurts of this state have held that “ajudgment, though duly abstracted, never fixes a lien on the homestead so long as it remains a homestead.” How v. Lovr. 494 S.W.2d 591, 593-94 (Ten. Cii. App.-Dallas), wrif refd n.r.e. per curiam, 499 S.W.2d 295 (Tex. 1973); acco&Eng&mkr Co. v. Kenne@, 424 S.W.Zd 305, 309 (Tex. Civ. App.-Dallas), writ ref

’d n.r.e. per curiwn, 428 S.W.2d 806 (Tcx. 1968); Amkrson v. Bum&k, 245 S.W.2d 318, 322-23 (Tex. Civ. App.-Eastland 1951, writ refd n.r.e.); Commercial Sec. Co. v. Thompson,239 S.W.Zd 911. 915 (Tar. Cii. App.-Fott Worth 1951, no writ); Harms v. Ehlers, 179 S.W.2d 582,583 (fen. Civ. App.-Austin 1944,writ refd); Hughes v. Groshart, 150 S.W.Zd 827, 829 (Ten. CN. App.-Amid0 1941. no writ).2 Rather, ‘a recordedjudgment hangs over the defendant, and by virtue of it a hen attaches to all his real property, in the county where the judgment is recorded, which he

“Ihe Aasttn

Americadlatesman qmied on Nownber 8.1995. that with ninely~ght puwd cd tbc prakcts reporting,the mtc was 363,363 for aad 343,473 ageist tk pmposed ammdmant. Aman~ent Resulu, AumtN AM.-~ATESW. NW. 8.1995, It Al 1.
rThamuatypmfKsition*fmmdinEwcetInc. v. Gwdes,815 S.W.2d35o~ex. App.-dklsin 1991. no tit): The dcbtork homestead is not exanpl ffom the pzfcckd ljudgmcnt] lien; rotha, the homestead

is exemptfromany seizureattanptingto enforce thepcrfcckdlb.” Id. at 352. This ar&sis in Exacet Inc. has hccn criticized as being %ntcnablc amslihltionally and pradatidly.” Joseph W.McKnighs FarnIb law: Husbmd and W’t/, 45 SW. L.1. 1831, 1852 (1992) (foOtMS OlUiNCd).

P. 1983Mr. KennethH. Ashworth - Page 3 0%366 )

owns at the time thejudgment is recorded, or acquires there&er, and which is subject to execution, or becomes subject to execution during the life of the judgment record.” Marks v. Bell, 31 SW. 699, 702 (Tex. CN. App. 1895, writ refd); accord Lewis v. Brown,321 S.W.Zd313,317 (Xx. Civ. App.-Fort Worth 1959,writ refd n.r.e.); IVUMJ
v. SlinwM, 140 S.W.Zd 497. 499 (Tex. CN. App.-Dallas 1940, writ refd) (“A duly recordedjudgment hen againstthe owner of landwhich is exemptwill,however, attach to the property when it ceases to be a homestead, if. at such time, it is still owned by the judgment debtor.“).

Ajudgment hen that is perfected whilethe property is a homesteadis not void and
so is unlike an attempted non-purchase-money, nonimprovement

wmmctual lien, which is void and never attaches even atIer debtor abandons the property as homestead. See Harrison v. First NOI

‘IBank, 224 SW. 269.276 (Tex. Civ. App.-Fort Worth 1920, no writ) (on motion for rehearing) (judgmentlien does not fall within provision of section 50 of article XVI that “[n]o mortgage, trust deed, or other hen on the homestead shag ever be valid, except for the purchasemoney therefor, or improvementsmade thereon.“). “The jjudgment] lien is created when the propetty becomes subjectto it, and not until then, and hence is not affectedby any homesteadright. The hen arises as it would ifthe record were made on the day of abandonmentof homestead.” Gkmrcockv. Stirrger, 33 S.W. 677. 678 (Tex. Civ. App. 1895,writ refd).
Thus, a judgment lien may attach to the debtor’ s property either befbre the propaty becomes a homestead or when the property ceases to be a homestead. A judgment hen that exists before the property’ s subsequentimpressionwith a homestead is not atkted by the establishmentof the homestead,the homesteadinterest is subjectto the pm-existing lien. See Imvood NotihHomeowners

‘Ass ‘nv. Harriis,

736 S.W.2d 632,635 (Tex. 1987); Johnson v. Prosper StateBank, 125 S.W.2d 707, 711 (Tex. Civ. App.- Dallas 1939),afd, 138 S.W.2d 1117(Ten. 1940).
Additionally, a judgment debtor may transfer the debtor’ s homestead to another person free of anyjudgment liensthat were perfected a&r the propetty became impressed with the homestead interest, and the purchaser has good title as against such creditors. Gill v. Quinn, 613 S.W.Zd 324, 325 (Tex. Civ. App.-Eastland 1981. no writ). The proceeds of a voluntary sale of a homestead are statutorily exempt from seizure by creditors for sbr months after the date of the sale. Prop. Code 8 41.001(c). This sixmonth grace period was enacted to pennit the seller a reasonable opportunity to use the proceeds to purchase a new homesteadwithoutjeopardy. Tqlor v.MartyBras. Nursery, Inc., 777 S.W.2d 568, 570 (Tex. App.-San Antonio 1989, no writ). The legislature intended the statutory exemption of homestead sale proceeds to protect only the right to acquire a new homestead, not to protect the proceeds themselves. Gaa@v v. Firsr Nat‘I &mk, 283 S.W. 277 280 (Tar. Civ. App.-Beaumont 1926, no writ). Therefore, the exemption terminates upon the debtor’ s acquisition of a new homestead or at the end of six months, whichever occurs first. England v. Feakral Lkpsiir Ins. Corp. (In re England), 975 F.2d 1168,1175 (5th Cii. 1992).

P. 1984Mr.KemmtbH.Ashworth - Page4 (DM-3663

The court in Tmcmt Barrk v. Miller held that although a duly recorded and indexed abstract ofjudgment does not operate on an existing homestead, it may cast a cloud on the debtor’ s title to the homestead. 833 S.W.2d at 667. A cloud on title is

“‘ [a]n outstandii claimor encumbrance which, if valid,would atfect or impairthe title of the owner of a particular estate, and on its face has the effect, but can be shown by wrbinsic proof to be invahd or inapplicableto the estate in question. ‘” Best Jm. Co. v. ParkhilI, 429 S.W.2d 531, 534 (Tex. Civ. App.-Corpus Christi 1968, writ dism’ d) (quoting BLACK’ S

Uw DICTIONARY

322 (4th ed. 1951)). Such a cloud results from two hctors: (1) the recording and indexingof the abstract and (2) the lack of a wnclusivc determi&on that the debtor’ s property is homestead.

To have the cloud of an abstract ofjudgment removed, a plaintitT must plead and prove at least a reasonable apprehensionof injury caused by the cloud. See 61 TEX.JUR. 31, QuietingTitle

andDeterminingAdverse Claims 5 9 (1988). “The alleged cloud must be capable of endangering the owner’ s title or impeding its free and unencumbered alienation.” Id. 8 12 (footnote omitted). Therefore, no suit to remove the cloud of an abstract of judgment will lie in the absence of the judgment creditor’ s seizure of the property or the judgment debtor’ s attempt to sell the prope@, which attempt was thwarted by the abstract ofjudgment. See Mauro v. Lmlies, 386 S.W.2d 825, 826-27 (TaC.CN. App.-Beaumont 1964,no writ).

A cloud on title does not necessarily give rise to a cause of action for slander of title. A plainthf in an action for slander of title must plead and prove that the defendant uttered and published false and malicious words in disparagement of some interest the plaintiffhad in property and that the plaintitT s&red specialdamages as a result. Srovull

v. Texus Co., 262 S.W. 152,153 (Tex. CN. App.-Fort Worth 1924,writ refd).” Falsity, therefore, is an elementof the plaintiffs case: “‘ The statement claimedas slanderousmust be false. Jfthere be such a flaw in the title as the defendantasserted, no action lies. And it is for the plaintiff to prove it false, not for the defendant to prove it true. ‘” Funt v. Sullivrm, 152 S.W. 515, 523 (Tex. Civ. App.-San Antonio 1912, writ refd) (quoting MARTIN L. NEWELL, THE LAW OF DEFAMATION, m & SLANDER

IN CIVIL AND ~~~A~E~A~ADMDJ~~I~LEDIN~CO~RT~~FTHEUNITEDSTA~~FAMER~~A 5 S,at208(1890)).

Even without any fmtbcr action by the judgment creditor, the judgment debtor’ s
. homestead frequently becomes unmarketable because of the filing of an abstract of judgment and the unascertainedhomesteadstatus of the property:

Whilehomestead property willpass free and clear of suchjudgments, the homestead status is not readily determinable by the deed records. s&garding

spcial damages,

theplaintiff

must pleadand pmvc the loss of a spccitk sale of tk grty resultingfromthe diqaragemcnt. Eg., A. H. &lo Corp. v. smrdcrs,

632 S.W.2d 145,146 (Tcx.

P. 1985Mr. Kenneth H. Ashworth - Page 5 (DM-366)

The buyer must often rely solely on the homeowner’ sassurancesthat the property is homestead. Assuming that the homestead status is, at some point in time, established, this status may terminate before the homestead owner conveys the property and at that time the judgment lien will immediatelyattach. Most buyers are not willingto purchase land in whichthe seller’ stitle is uncertain. This has the undesirablee&t of renderingthe title to his homesteadunmarketable.

SuzameM. Schwarz,Comment, Ju&ment Liensmdthe T~urcHomestead,40B~no~ L.RM.641,643(1988).

Tmant Bank v. Miller provides an example of the adverse ekt an abstract of judgment has on the marketabilityof a homestead. In that case, the Millers lost a sale of their homestead when the title company relked to issue title insurance without Tarrant Bank’ s partial release of its judgment lien as to the homestead’ and the bank refused to exewte the partial

release.

833 S.W.2d at 667. The ttial court had awarded damagesfor slander of title, rmdered a declaratoryjudgment that the bank’ sjudgment lien was not enforceable against the debtors’ homestead, and awarded attorney fees. Id.5 The bank

%c awl afsppda in.Uaam v. &v&s, 386 S.W.2d 825, 827 (Xx. Civ. AppBmnmont 1%4,wwrit),notedthst’[i]tisdoubtfulthtaUUe~waJd~tiUe~ upona*of pmputywhemajadgmcnthadhwnabshUed.” AhriefadmiNedtoouroffleinthismmerexplaha whyUUecmnpankwillnotissuebmance inawhasi~

~heprrmiuMfor...[a]tiUepolicyd~ usuallycostinthelmn&eds d dollars..

. . The title ampany will not tisk issuing a policy with

. . . [a jlKlgmult]limoflrwN.t. Thcpomid~oflitigationsnduroc*tedawl whelhersucwwidornotfar~uwpmmiom- risnotalst e&c&. ThebasicrasonistbatifliUgatiwensues,aadofanmieitwouldbe a@lStthetiUCCFOlllF#Q!,theitrucdllonluddslualsmlissaeoffact Tk. titlecompanymustaaasarilydepxbdonthecoopemtionaadteshotyofthe homeownerorthefamiiyandtheycouldbedeadnothenvkbetmav&ble.
lztter from John A. Daniek, Esq., Daaids & Daniel& Attorneysat law, Saa Aatonio, Texas (Apr.7.1995) (on file with thi’ oftlco).

P. 1986Mr. Kmneth H. Ashworth - Page 6 (~~-366)

appealed only from the award of damages and attorney fees in thejudgment and not from the declarationitself Id.

A certain ambiguityin the Tmak &I& case apparently accounts for your wncern that ajudgment creditor may be gable for slender of title merely for retking to execute a partial release ofjudgment hen as to property the debtor claims to be homestead. The opinionin Tmant Bunk does not clearlyindicatewhetherthe scope of the appeal included liabilityissues or was limitedto issuesrelating to damages and attorney fees, The court of appeals aflirmedmost of the trial court’ s award of damagesand attorney fees. Id. at 669, The opinion indicates that the bank “appeal[ed] the trial court’ s award of S28.086.50 in damages and attorney’ s fees wmpkining: , . . that the evidencewas legally and factually insu5cient to support thejudgment.” Id. at 667. Later in the opinion, the wurt stated that the bank’ s second point of error was that “the trial court erred in grantingjudgment because the evidence was IegsJly and Mually insuf6cient.” Id. at 668 (footnotes omitted). The point of error may have challenged(or the wurt may have interpreted it as challenging)the sufiiciencyof the evidencein support of the lower wurt’ s findings as to either (1) both liabii and damages(and attorney fees) or (2) only damages (and attorney fees).

An articlein HOUSIOII Lawyer supports the view that Tmanf Bank held that a mere dual to release a judgment lien as to a putpotted homestead may subject the creditor to liability for slander of title. The authors stated: ‘The lesson to be learned [from Tmunf Bank] is that if there is no question as to whether the property at issue is the judgment debtor’ s homestead, the judgment creditor should not rekse to give the judgment debtor a partial release of judgment lien as to the homestead property.” S. Bradley Todes & Rosa S. Silbert, Judgment Lfens in Texps, 31 HOUS. UW. 28. 30 (May-June 1994).

We would disagree that the decisionin T-t Bank canbe interpreted as holding that the creditor is obligatedto release the “lien”on demand. Such an interpretation of the
case would depend on the unwarran tedaJsumptionthatthecape~Mappealofthetrial wurt’ s findingson liabiity issues. The procedural context of that case requires that it be interpreted as an appeal only from the damages issues. The eponymous bank did not timely respond to the plaintiffs’request for admissions;wnsquently, all the requested admissionswere deemed admitted. 833 S.W.Zdat 668. The bank also refused to produce documents and failed to answer interrogatories, so the trial court sanctionedthe bank by entering a defaultjudgment in favor of the plaintiffson all issues except the amount of damages. Id: The trial wurt thenheld a trial to determinedamagesand attorney fees. Id. at 668-69. “&]iability may be determined in a dethult judgment without evidetttiary support as a sanction for failure to provide discovety, and there need only be an evidemiaty hearing to establishthe amount ofplaintiffs damages.” Brandty v. Ever, 662 S.W.Zd 752, 758 (Tex. App.-San Antonio 1983) wril refd n.r.e. per nrriam, 677 S.W.2d 503 (Tex. 1984). Accordingly, because the defaultjudgment was a discovery sanction, the trial court could enter a judgment of liability without evidentisry support.

P. 1987Mr. KennethH. Ashworth - Page 7 (DM-366)

Therdore, the sufficiency of the evidence to support the liability finding was not reviewableon appeal.

The Twang Bunk opinion showsthat the court of appealsproperly refkained from reviewing the evidence on liabiity issues. The opinion does not mention the habiity element of falsity. Findingthat “[tlhere [wa]s some evidenceto support the [trial] wurt’ s award of actual and exemplary damages,” the court of appeals noted that “[t]he [trial] court found that the Bank’ s failure to give the release was intentional, wiltid, and malicious.” 833 S.W.2dat 668. The adjectives“intentional,wilful,and malicious”appear to relate to the award of punitive damagesrather than to the malice element of the prima facie case of slander of title. Malice as an element of the prima facie case “should mean that the act or refusal was deliberate conduct without reasonable cause,” whereas malice to support punitive damages “should mean actual malice, that is, ill will, bad or evil motive,or such gross indiibrence to or reckless disregard of the rights of others as will amount to a wiltid or wanton act.” Ki&v. Hogge& 331 S.W.2d 515. 518 (Tex. CN. App.-San Antonio 1960,writ refd n.r.e.). The T-f Bank court slso concludedthat the evidence supported the trial court’ s award of attorney fees for trial but not for appeal,
as there was no evidence as to the amount of fees that would be reasonable on appeal. 833 S.W.2d at 669.

All these circumstances wmpel a wnclusion that the wurt in T-i Bank reviewed the evidence to detemtine whether it supported only the ttial wutt*s award of damages and attorney fees, not whether it also supported the Sndmg of iiabiity. Having determined that Tmzmf Bank is not dispositiveof your question. we now consider other caselawtofindananswer.

One variety of slander of title involves a failure to release or disclaima recorded claimed,but not actual, interest in property. “Th[e Texas Supreme]Court has established that a cause of action to recover damagesfor the failureto release a putPorted, though not actual,property interest is a cause of action for slander of title. ” Wlis v. Wa&p, 656 S.W.2d 902, 905 (Tat. 1983) (citations omitted). Therefore, a recorded document that creates the appearance of a claimthat is not actual providesthe requisite fhlsity and, if the other elements are present, will support an action for slander of title. See id. (iiolving faihxe to release claim of right of tirst refusal when right had already expired; damages awarded for failure to release claim of right); Reaugh v. McCollum&&ration Co., 163 S.W.Zd620,621 (far. 1942) (involvingfailureto release claimunder recorded lease that
was not signedby all owners and that partiesunderstood would not be bindinguntil signed and acknowledgedby all owners); Kidi, 331 S.W.2d at 517 (involvingfailure to release recorded oil and gas lease that had expired).

A potential lien in a homestead created by a duly recorded and indexed abstract of
a valid, nondormant, and undischarged judgment is an actual interest and thus is diiinguishable from the claimedbut not actual interests that are subject to the rule recognized in Ellis v. Wal&op. The proper recording of an abstract of a valid, nondotmant, and

P. 1988,Mr.KennethH. Ashworth - Page 8 (DM-366)

undischargedjudgment is in no sense false and therefore cannot support an essential element of a case for disparagementof title to the homestead. See Leslie v. WestemSteel Co., 202 F. Supp. 27.28 (S.D. Tex. 1962);see also Wesfman v. James B. Clow & Sons, 38 F.2d 124 (W.D. Tex. 1930) (“The abstract ofjudgment does not of itself assert any claim of lien upon homestead property.“). Thus, the court in CommercialSe&ties Co.
v. ~sotr,239S.W.2d911.915(Tex.Civ.App.-FortWorth 1951,nowrit),cotrectly noted that if a “

judgment ha[s] not been discharged,there [i]s no basis for damages for tiling the abstract of it.” We the&ore are of the opinion thata duly recorded abstract of a valid, nondotmant, and undischarged judgment cannot in itselfwnstitute a slander of title to thejudgment debtor’ s homestead. See 67 Tex. Jur. 3d S&n&r of Title 5 2 (1989) (mere filingof abstract ofjudgment ordinarily does not wnstitute ground for recovery of dama&.

First Naiional

Bankv.Moore, 7 S.WSd 145 (Tkx. CN. App.-San Antonio 1928, writ denied), might on cursory reading appear to wntradict our wnclusion that a duly recorded abstract of a valid, nondormant, and undischargedjudgment cannot in itself wnstitute a slander of title to thejudgment debtor’ shomestead. Jn that case thejudgment crediton refirsed to execute a partial release of an abstract of judgment against J. P. Moore as to property that Moore and his wife, Pearl F. Moore, claimed to be their homestead and Mrs. Moore’ s separate property. Id. at 146. The facts stated in that case do not indicate that the abstract ofjudgment at issue was false in MY way, yet the wutt found on motion for rehearing that there was evidence supporting the trial wutt’ s award of damages againstthe creditors for slanderof title. Id. at 147.

Car&d reading will show, however, that the actionable false statements in that
case were made outside the abstract ofjudgment. The wurt noted that the judgment creditors knew facts that made theirjudgment lien inapplicableto the judgment debtor’ s wife’ s property-namely, that the subject propetty was the debtor’ s wife’ s separate property, while the judgment was against only the husband-but desired to force the debtor and his wife to pay off the judgment by persisting in claimingthat their recorded abstract of judgment did impose a hen on the debtor’ s wife’ s land. Id. at 147. The creditors had continued to resist and assail the debtor’ s wife’ s claimof homestead end separate property interests in the land even during the litigation of the case. id. at 146; they “were asserting ajudgment lien on the land,” id., and had “persisted in claimbtga lien
on her property,” id. at 147. The court found that such evidence supported the lower wurt’ s award of damages. Id. Althoughit is not clear from the opinion what form the creditors’ assertions and claimstook, it is clearthat the assertionsand claimswere outside the abstract ofjudgment. Therefore, these outside claims,not the filingof the abstract of judgment itself, gave rise to an action for slanderof title.

The situation you present differsCornFirst National Bankv. Moore. Ajudgment creditor’ s knowledge of the judgment debtor’ s homestead right does not constitute knowledge that thejudgment hen is forever inapplicable to the homestead. Nor does the creditor’ s refusal to release the potential hen created by the abstract of judgment

P. 1989Mr. KennethH. Ashworth - Page 9 (~~-366)

constitute a claimthat the creditor has a present lien in the homesteadproperty. Compare Moore, where the creditors knew that the subject property was the debtor’ s wife’ s separate property, while the judgment was against only the husband; in that case the creditors not only refused to release the judgment “lien” in the wife’ s separate property but also deniedthat the property was separate and claimeda present lienin it. Id

For the fore-goingreasons, and particularly because a properly recorded and indexed abstract of II valid, nondormant, and undischarged judgment is not **false**

in any way, we do not believe that a court would hold that a mere refbsal to release a potential judgment lien against the debtor’ s homestead is an actionable slander of title. The homeowner who has been determinedby finaljudgment to be indebted has no right to demand that thejudgment creditor forever relinquisha,valuablepotential security created by statute to assist in the satisfaction of the indebtedness. If a duty of the creditor to mitigate an impedimentto alienationarises at all, it would be at most a duty to disclaim any present lien in the homestead,not to waivethe potentialfuture lien.6

You also ask whether the Texas Highe-r Education CoordinatingBoard may, upon the judgment debtor’ s request, voluntarily disclaim any present judgment lien in a judgment debtor’ s homestead. By this question we understand you to ask whether the board may voluntarily execute, for example,a partial release of “lien” as to the purported homestead, upon a satisfactory showing (1) that the property is under a contract of sale that requires the issuance of a policy of title insurance.(2) that the title company requires
a partial release of lien or other disclaimerof a present lien as a conditionto issuanceof a policy on the property. and (3) that the property in &ct has remained the debtor’ s homestead continuously since the time of fXng of the abstract ofjudgment. We believe the board may do so. In order to avoid relinquishing any potential fbturejudgment lien in the property, however, the board should include provisions on the face of the release of lien expressly conditioningthe release upon the closing of the specific contemplated sale of the property and stating that the release shall be void in the event that the judgment debtor ever again acquires an interest in the property.

~WC do net considerhem wbetber, in attain citams~~~, Pjudgmen~cmditormigbthavcr dutylo disclaimanypresent lien to avoidliability

under somelhwry olhu lhan slander oftitle.

P. 1990Mr. KennethH. Ashworth - Page 10 Wt-366)



### SUMMARY

A duly recorded abstract of a valid, nondormant. and undkhaqed judgment may constitute a cloud on the judgment debtor’ s title to homestead property located in the county where the abstract is recorded but cannot in itself wnstitute a slander of the judgment debtor’ s homesteadtitle.

DAN MORALES Attorney Generalof Texas

JORGE VEGA FvstAasistant AttorneyGeneral

SARAHJ. SHIRLEY Chsir, Opiion Committee
Prepared by JamesB. Pinson Assistant Attorney General

p. 1991