DAN MORALES 

.\TTORS:EY GENERAL 

Office of tfy 1ZIttornep 65eneral 

Sbtatt of Qexae 

October 5,1992 

Honorable Mike DriscoII 

Harris County District Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002-1891 

Opinion No. DM-174 

Re: Authority of county clerk to 

charge fees under section 31.008, Civil 

Practice and Remedies Code, and 

related questions (RQ-171) 

Dear Mr. DriscoU: 

You ask three questions regarding section 31.008 of the Civil Practice and 

Remedies Code. Section 31.OOl3 was enacted by the 72d Legislature and governs the 

payment of judgments unclaimed by the prevailing party. It authorizes a judgment 

debtor, upon compliance with its notice requirements, to pay to the court rendering 

a judgment the amount owed under the judgment when the debtor does not know 

the location of the judgment creditor. Civ. Prac. & Rem. Code 5 31.008(a).i The 

amount paid to the court and the interest earned on this amount is held by the court 

in trust for the judgment creditor and is deposited by the clerk of the court in the 

clerk’s trust fund account. Id 9 31.008(c), (d). The funds held in the clerk’s trust 

fund account are subject to escheat under chapter 72 of the Property Code, and the 

clerk is entitled to presume that the funds are payable to the judgment creditor 

unless the clerk is provided a written assignment of the judgment. Id 0 31.008(d), 

(e). In conjunction with the payment of the judgment, section 31.008 requires the 

judgment debtor to prepare a “recordable release of the judgment.” Id 8 31.008(a). 

The judge or clerk of the court shall then execute a release of the judgment on 

behalf of the debtor and issue the release to the debtor. Id 

‘Sectioa 31.008 defmcs ‘judgment debtor’ as a party against whom a judgment is rendered and 

‘judgment creditor” as the party in whose favor a judgment has bxn rendered, whether the party is a 

plaintiff, countcrchimant, cros-claimant, third party plainti@ or aher judgment creditor. Civ. Prac. & 

Rem. Code 5 31.008(f). 

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Honorable Mike Dtiscoll - Page 2 (IX+174) 

You ask whether a county clerk may, at the time of filing, charge a filing fee 

for the release of judgment executed pursuan t to section 31.008. You also ask 

whether the release of judgment should be filed in the court 6le as well as real 

property records. Finally, you ask whether the~county clerk may collect the SSO fee 

authorized by section 117.055 of the Local Government code when funds are paid 

into the clerk’s trust fund pursuant to section 31.008. 

In yonr letter requesting this opinion you note that the amount of filing fees a 

cotmty clerk is entitled to collect is governed by section 118.052 of the Local 

Government Code. This provision presaii a schedule for fees a county clerk is 

elsewhere authorized to charge for services rendered in connection with civil cases 

in county~courts. The fees are divided by subject - “civil court actions,” “probate 

court actions,” and “other fees.” Local Gov’t Code 0 118.052 Fees in civil court 

actions are s&categorized as fees for filing of original actions, for 6ling of actions 

other than origimd, and for services rendered after judgment in original actions. Id 

0 118.052(1)(A) - (G). You conclude tbat none of the subcategories would appear 

applicable to the execution of a release under section 31.008 of the Civil Practice 

and Remedies Code. We agree. 

The fee collected by a county clerk for 6ling of an original action under 

section 118.052 is intended to coyer “all clerical duties in connection with an original 

action filed in a county civil court Local Gov’t Code 0 118.053(a).2 Attorney 

General Opinion H-754 (1975) concluded that except for additional fees allowed for 

specifically enumerated matters (which are now encompassed by sections 118.052 

and sections referenced therein), a county clerk may make only the one-time charge 

authorized by the predecessor to section 118.053 for the rendition of all services in 

connection with an original action. The procedure authorized by section 31.008 of 

the Civil Practice and Remedies Code is not an original or separate cause of action, 

but is merely derivative of the original action on the underlying debt. Consequently, 

the clerk may not charge a 6ling fee under this provision. 

p. 911 
Honorable Mike Driscoll - Page 3 ml-174) 

Tbefeefortilinganaaionotbertbanoriginaloppliestothefilinsofeach 

“interplead@ cross action, or action other than an original action.3 As noted 

above, we believe the ~procedure authorized by section 31.008 is derivative of an 

originalcauseofaction Itdoesnotimrohretbcassertonofaclaimagaimtthe 

judgment creditor. Thus, we do not believe this fee is applicable to the procedure 

outlined in section 31.008. 

The title and description of the fast fee, ‘Services Rendered After Judgment 

in ChQinaf Action,” would appear to include services of the county clerk rendered in 

anmection with section 31.W8. See Local Gov’t Code 0 118&545(a) (fee is for 

setvices rendered after judgment in an original action filed in county civil court). 

However, the legislature has authorized the county clerk to collect a fee only with 

regard to particular legal instruments -specifically, abstracts of judgment, 

executions, orders of sale, writs or other process Id. OQ 118.052(1)(C)(i), (ii); see 

alro id. 0 118.123 (similar fees allowed justices of the peace). No fee is authorized 

for post-judgment services rendered pursuant to section 31.008.4 

You suggest that the clerk may be entitkd to a fee under section 118.011 of 

the Local Government Code, which authorize-s the clerk to charge “reasonable fees 

for performing other duties prescrii or authorized by statute” and for which a fee 

is not prescriid by subchapter B of chapter 118. Id. 0 118.011(c). Attorney 

General Gpiion H-43 (1973) concluded that the statutory predecessor to this 

provision applied only to the noncourt aspects of tbe county clerk’s official duties 

and had no application to the clerk’s performance of court-related services. 

Consequently. the county clerk may not charge a fee under section 118.011(c) for 

services rendered in connection with section 31.008 proceedings. 

Your second question is whether the release of judgment obtained pursuant 

to section 31.008 must be filed in the court file as well as the real property records of 

the county. Section 31.008 states only that the release be “recordable.” It neither 

p. 912 
Honorable Mike Driscoll - Page 4 W-174) 

requires nor prohibits filing in the court file. We agree witk your axmhtsion that it 

is not the derk’s responsiiility under section 31.008 to determine whether the 

release should be recorded or 6led in the court fife. We ilo not address the clerk’s 

duty to take offidal action with regard to a section 31.008 release putsuant to other 

laws or rules of procedure. See, cg., Local Gov’t Cede 0 193.004 (county clerk shag 

maintain index of judgments): Ten. R. Civ. P. 25 (clerk shall keep a 6le docket which 

must show, inrer CJio all subsequent pruccediq in a case). 

Your final question is in two parts. Pit, you ask whether the cotmty is 

entitled to the fee specified in section 117.055 of the Local Govermnent code to 

compensate the tmmty for “accounting and administrative expenses incurred in 

handling trust fimds for the benefit of litigants in civil proceedings.” Local Gov? 

Code 0 117.055(a). Next, you ask whether the county clerk may collect the fee at 

the time the funds are deposited in the trust fund. 

Funds paid to the court under section 31.008 are received on behalf of 

judgment creditors and thus are held for the benefit of litigants in civil prw. 

They are expressly designated as trust funds. Civ. Prac & Rem. Code 0 31.008(d); 

see a& Attom General Opinion H-183 (1973) (Ynrst funds” for purposes of 

statutory predecessor to section 117.055 includes money deposited in court to satisfy 

or await result of a legal proceeding). They are deposited in the clerk’s trust fund 

and are paid out by the clerk. Civ. Prac. & Rem. Code 0 31.008(d). Trust funds are 

deposited in the county depository. Local Gov’t Cede 0 117.052(a). Thus, the 

cotmty provides services in the handling of funds paid pursuant to section 31.008 for 

which it is likely to incur expenses. The county therefore is entitled to the fee 

authorized by section 117.055 to compensate the county for accounting or 

administrative expenses so incnrred. 

With respect to the time at which the fee may be collected, Attom General 

Opinions JM-1162 (1990) and JAM34 (1986) concluded that the expense of 

handling a trust fimd must have been incurred prior to the assessment of costs under 

section 117.055. Because section 117.055 provides tkat costs are assessed against 

either the nonprevailing party or the party designated by the cour& the assessment 

must necessarily await the outcome of the litigation. Attom General opinion 

JM-434 at 3. In our opinion, the county w-ill not, at the time of deposit of funds in 

the county clerk’s trust fund pursuant to section 31.OOg, have incurred any expense 

in comrection with the handling of the funds. Consequently, it will not be entitled to 

compensation under section 117.055 at that time. 

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Honorable Mike Driscoll - Page 5 (1x-174) 

ARY 

The county clerk may not charge a Sling fee for the 

rendition of derical services in connection witb the execution or 

preparation of a release of judgment pursuant to section 31.008 

of the Civil Practices and Remedies Code. Section 31.008 

neither requires nor prohiiits the Bling of the release of 

judgment in the court Sle for the particular case. The county is 

entitled to the fee authorized by section 117.055 of the Local 

Government Cede for accounting and administrative expenses 

incurred in handling funds deposited in the county clerk’s trust 

fund pursuant to section 31.008. It may not collect the fee at the 

time the funds are paid to the court. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

Fit Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAHlcKs 

Spedal Assistant Attorney General 

MADEIJ3NE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Steve Arag& 

Assistant Attorney General 

p. 914