DAN MORALES

.\TTORS:EY GENERAL 

## Office of tfy 1ZIttornep 65eneral Sbtatt of Qexae October5,1992

Honorable Mike DriscoII Harris County District Attorney 1001Preston, 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 31.008of the Civil Practice and Remedies Code. Section 31.OOl3 was enacted by the 72dLegislature and governs the payment ofjudgments unclaimed by the prevailing party. It authorizes ajudgment debtor, upon compliance with its notice requirements, to pay to the court rendering
ajudgment 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 isheld 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 72ofthe 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 thejudgment. Id 031.008(d), (e). In conjunction with the payment of the judgment, section 31.008 requires the judgment debtor to prepare a “recordable release ofthejudgment.” Id 831.008(a). The judge or clerk of the court shall then execute a release of the judgment on behalf ofthe debtor and issue the release to the debtor. Id

‘Sectioa31.008defmcs‘judgment debtor’as apartyagainst whom ajudgmentis renderedand

‘judgment

creditor” as the partyin whose favorajudgmenthasbxn rendered,whetherthepartyisa plaintiff, countcrchimant,cros-claimant,thirdparty plainti@ oraherjudgment

creditor.Civ.

Prac.& Rem. Code531.008(f).

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You askwhether a county clerk may, at the time offiling,charge a filing fee for the release of judgment executed pursuant to section 31.008. You also ask whether the release ofjudgment 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 117.055of the Local Government code when funds are paid into the clerk’strust 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 - “civilcourt 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 afterjudgment 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 31.008of 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 “allclerical 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 onlythe one-time charge authorized by the predecessor to section 118.053for the rendition of all services in connection with an original action. The procedure authorized by section 31.008 of the CivilPractice and Remedies Code is not an original or separate cause of action, but is merely derivative ofthe original action on the underlying debt. Consequently, the clerk maynot charge a 6ling fee under this provision.

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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 ChQinafAction,” would appear to include servicesofthe 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 allowedjustices 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 118.011of the Local Government Code, which authorize-sthe 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 31.008proceedings.

Your second question is whether the release ofjudgment obtained pursuant to section 31.008must be filed in the court file aswell as the real property records of the county. Section 31.008 states only that the release be “recordable.” It neither

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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 31.008release putsuant to other laws or rules ofprocedure. See,cg., Local Gov’t Cede 0 193.004(county clerk shag maintain index ofjudgments): Ten. R. Civ.P. 25 (clerk shall keep a 6le docket which must show,inrerCJioall 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 civilproceedings.” 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 oflitigants in civil prw. They are expressly designated as trust funds. Civ. Prac & Rem. Code 031.008(d);
see a& Attom General Opinion H-183 (1973) (Ynrst funds” for purposes of statutory predecessor to section 117.055includes 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 031.008(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 offunds paid pursuant to section 31.008for 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 whichthe fee maybe 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 117.055provides 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-illnot, 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 ofthe funds. Consequently, it will not be entitled to compensation under section 117.055at that time.

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ARY

The county clerk may not charge a Sling fee for the rendition ofderical services in connection witb the execution or preparation of a release ofjudgment 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 ofTexas

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

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