QBffice of tip Bttornep &neral 

DAN MORALES 

Al-rORNF.Y GENERAL 

%tate of Qexas 

November 20.1995 

Mr. Kenneth H. Ashworth Opiion No. DM-366 

Commissioner 

Texas Higher Education Coordinating Board 

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 Higher Education Coordinating Board must 

issue a partial release of a student loan judgment 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 partially released as to the debtor’s claimed homestead may cast a cloud on 

the debtor’s title and that a judgment creditor’s refusal to release the 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 the judgment debtor’s title to homestead property 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 will review the 

nature of the judgment lien and the effect it has on a homestead. 

The judgment hen is a creature of statute. 04 Sfufe Bunk v. Bailey, 214 S.W.2d 

901, 903 (Tex. Civ. App.-Amarillo 1948, writ refd). Section 52.001 of the Property 

Code establishes the hen as follows: 

Except as provided by Section 52.0011, [which deals with the 

establishment of a judgment lien pending appeal,] a first or 

subsequent abstract of judgment, 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 defendant located in the 

county in which the abstract is recorded and indexed, inchniing real 

property acquired afler such recording 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 which judgment 

was rendered; defendant’s address if shown in suit, or nature of citation and date and place 

of service; date of rendition of judgment; 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 purchase money, taxes on the homestead, or labor and 

materials used in improving the 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 Resolution No. 46 (which result 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 resulting gem a division or award of the homestead in 

a divorce proceeding and (2) n&axing of a lien against the 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 “a judgment, 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 recorded judgment 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 exempt from any seizure attanpting to enforce the pcrfcckd lb.” 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. 1983 
Mr. Kenneth H. Ashworth - Page 3 0%366 ) 

owns at the time the judgment 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.Zd 313,317 (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 

recorded judgment hen against the owner of land which is exempt will, however, attach to 

the property when it ceases to be a homestead, if. at such time, it is still owned by the 

judgment debtor.“). 

A judgment hen that is perfected while the property is a homestead is 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 ‘I Bank, 224 SW. 269.276 (Tex. Civ. App.-Fort Worth 1920, no 

writ) (on motion for rehearing) (judgment lien 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 purchase money therefor, or improvements made thereon.“). “The 

jjudgment] lien is created when the propetty becomes subject to it, and not until then, and 

hence is not affected by any homestead right. The hen arises as it would ifthe record were 

made on the day of abandonment of homestead.” Gkmrcock v. 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 subsequent impression with a homestead is 

not atkted by the establishment of the homestead, the homestead interest is subject to the 

pm-existing lien. See Imvood Notih Homeowners ‘Ass ‘n v. Harriis, 736 S.W.2d 632,635 

(Tex. 1987); Johnson v. Prosper State Bank, 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 any judgment liens that 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 homestead without jeopardy. Tqlor v. Marty Bras. 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. 1984 
Mr.KemmtbH.Ashworth - Page4 (DM-3663 

The court in Tmcmt Barrk v. Miller held that although a duly recorded and 

indexed abstract of judgment 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 claim or encumbrance which, if valid, would atfect or impair the 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 inapplicable to 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’Uw S DICTIONARY 322 (4th ed. 1951)). Such a cloud results from two 

hctors: (1) the recording and indexing of 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 of judgment removed, a plaintitT must plead and 

prove at least a reasonable apprehension of injury caused by the cloud. See 61 TEX. JUR. 

31, Quieting Title andDetermining Adverse 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 of judgment. 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 

plaintiff had in property and that the plaintitT s&red special damages as a result. Srovull 

v. Texus Co., 262 S.W. 152,153 (Tex. CN. App.-Fort Worth 1924, writ refd).” Falsity, 

therefore, is an element of the plaintiffs case: “‘The statement claimed as slanderous must 

be false. Jfthere be such a flaw in the title as the defendant asserted, 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 unascertained homestead status of the property: 

While homestead property will pass free and clear of such judgments, 

the homestead status is not readily determinable by the deed records. 

s&garding spcial damages, the plaintiff must plead and pmvc the loss of a spccitk sale of tk 

grty resulting from the diqaragemcnt. Eg., A. H. &lo Corp. v. smrdcrs, 632 S.W.2d 145,146 (Tcx. 

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

The buyer must often rely solely on the homeowner’s assurances that 

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 

immediately attach. Most buyers are not willing to purchase land in 

which the seller’s title is uncertain. This has the undesirable e&t of 

rendering the title to his homestead unmarketable. 

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 marketability of 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 damages for 

slander of title, rmdered a declaratory judgment that the bank’s judgment 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!,theitrucd llonluddslualsmlissaeoffact Tk. 

titlecompanymustaaasarilydepxbdonthecoopemtionaadteshotyofthe 

homeownerorthefamiiyandtheycouldbedeadnothenvkbetmav&ble. 

lztter from John A. Daniek, Esq., Daaids & Daniel& Attorneys at law, Saa Aatonio, Texas 

(Apr. 7.1995) (on file with thi’ oftlco). 

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

appealed only from the award of damages and attorney fees in the judgment and not from 

the declaration itself Id. 

A certain ambiguity in the Tmak &I& case apparently accounts for your wncern 

that a judgment creditor may be gable for slender of title merely for retking to execute a 

partial release of judgment hen as to property the debtor claims to be homestead. The 

opinion in Tmant Bunk does not clearly indicate whether the scope of the appeal included 

liability issues or was limited to issues relating to damages and attorney fees, The court of 

appeals aflirmed most of the trial court’s award of damages and 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 evidence was legally and factually 

insu5cient to support the judgment.” 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 granting judgment 

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 sufiiciency of the evidence in 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 article in 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 decision in T-t Bank can be interpreted as holding 

that the creditor is obligated to release the “lien” on demand. Such an interpretation of the 

case would depend on the unwarran tedaJsumptionthatthecape~Mappealofthetrial 

wurt’s findings on 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 

admissions were deemed admitted. 833 S.W.Zd at 668. The bank also refused to produce 

documents and failed to answer interrogatories, so the trial court sanctioned the bank by 

entering a default judgment in favor of the plaintiffs on all issues except the amount of 

damages. Id: The trial wurt then held a trial to determine damages and 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 establish the amount of plaintiffs 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 default judgment was a discovery 

sanction, the trial court could enter a judgment of liability without evidentisry support. 

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

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

reviewable on appeal. 

The Twang Bunk opinion shows that the court of appeals properly refkained from 

reviewing the evidence on liabiity issues. The opinion does not mention the habiity 

element of falsity. Finding that “[tlhere [wa]s some evidence to 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.2d at 668. The adjectives “intentional, wilful, and malicious” appear 

to relate to the award of punitive damages rather 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 concluded that 

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 dispositive of your question. we now consider other 

caselawtofindananswer. 

One variety of slander of title involves a failure to release or disclaim a recorded 

claimed, but not actual, interest in property. “Th[e Texas Supreme] Court has established 

that a cause of action to recover damages for the failure to 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 claim that is not actual provides the 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.Zd 620,621 (far. 1942) (involving failure to release claim under recorded lease that 

was not signed by all owners and that parties understood would not be binding until signed 

and acknowledged by all owners); Kidi, 331 S.W.2d at 517 (involving failure 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 claimed but 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. Kenneth H. Ashworth - Page 8 (DM-366) 

undischarged judgment is in no sense false and therefore cannot support an essential 

element of a case for disparagement of title to the homestead. See Leslie v. Westem Steel 

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 of judgment does not of itself assert any 

claim of lien upon homestead property.“). Thus, the court in Commercial Se&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 that a duly recorded abstract of a 

valid, nondotmant, and undischarged judgment cannot in itself wnstitute a slander of title 

to the judgment debtor’s homestead. See 67 Tex. Jur. 3d S&n&r of Title 5 2 (1989) 

(mere filing of abstract of judgment ordinarily does not wnstitute ground for recovery of 

dama&. 

First Naiional Bank v. 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 undischarged judgment cannot in itself 

wnstitute a slander of title to the judgment debtor’s homestead. Jn that case the judgment 

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 of judgment 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 against the creditors for slander of title. Id. at 147. 

Car&d reading will show, however, that the actionable false statements in that 

case were made outside the abstract of judgment. The wurt noted that the judgment 

creditors knew facts that made their judgment lien inapplicable to 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 claiming that 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 claim of homestead end 

separate property interests in the land even during the litigation of the case. id. at 146; 

they “were asserting a judgment lien on the land,” id., and had “persisted in claimbtg a lien 

on her property,” id. at 147. The court found that such evidence supported the lower 

wurt’s award of damages. Id. Although it is not clear from the opinion what form the 

creditors’ assertions and claims took, it is clear that the assertions and claims were outside 

the abstract of judgment. Therefore, these outside claims, not the filing of the abstract of 

judgment itself, gave rise to an action for slander of title. 

The situation you present differs Corn First National Bank v. Moore. A judgment 

creditor’s knowledge of the judgment debtor’s homestead right does not constitute 

knowledge that the judgment 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. 1989 
Mr. Kenneth H. Ashworth - Page 9 (~~-366) 

constitute a claim that the creditor has a present lien in the homestead property. 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 denied that the property was separate and claimed a present lien in it. Id 

For the fore-going reasons, 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 determined by final judgment to be indebted has no right to 

demand that the judgment creditor forever relinquish a,valuable potential security created 

by statute to assist in the satisfaction of the indebtedness. If a duty of the creditor to 

mitigate an impediment to alienation arises at all, it would be at most a duty to disclaim 

any present lien in the homestead, not to waive the potential future lien.6 

You also ask whether the Texas Highe-r Education Coordinating Board 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 disclaimer of a present lien as a condition to issuance of 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 of judgment. We believe 

the board may do so. In order to avoid relinquishing any potential fbture judgment lien in 

the property, however, the board should include provisions on the face of the release of 

lien expressly conditioning the 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 consider hem wbetber, in attain citams~~~, Pjudgmen~cmditormigbthavcr 

duty lo disclaim any present lien to avoid liability under some lhwry olhu lhan slander of title. 

P. 1990 
Mr. 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 homestead title. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

FvstAasistant AttorneyGeneral 

SARAH J. SHIRLEY 

Chsir, Opiion Committee 

Prepared by JamesB. Pinson 

Assistant Attorney General 

p. 1991