Case Information

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The Attorney General of Texas

March 19, 1981

Attorney General Opinion No. k3+366

Criminal District Attorney

Taylor County Courthouse Re: Collection of fees from city, Abilene, Texas 79602 school district, and water district for filing abstract of judgment Dear Ms. Elliott:

When a plaintiff recovers a favorable in a suit for the collection of~delinquent taxes, he may place a lien upon the property of the judgment debtor by securing an abstract of juclgment, see article 5447, V.T.C.S., and by filing it in the real property records in the office of county clerk of the county in which the property is located. The property thereby becomes encumbered in favor of judgment creditor. You have asked whether the city of Abilene, the Abilene Independent School District, and the West Central Texas Municipal Water District are liable for the payment of the $3.00 fee charged by the Taylor County clerk for recording abstracts of judgment The taxing authorities assert that this fee is included among the court costs mandated article 39304 V.T.C.S., and, therefore, that article 7297, V.T.C.S., exempts them from having to pay it.

Article 5447, V.T.C.S.;provides that:

Each clerk of a court, when the person in whose favor a judgment was rendered, his agent, attorney or assignee, applies therefor, shall make out. . . and deliver to such applicant upon the payment of the fee allowed by law, an abstract of such judgment . . .

Statutory for the. $3.00 fee charged the county clerk for recording abstracts of judgment in the real property records of the county is conferred by article 3930(2)(a), V.T.C.S.

Article 7297, V.T.C.S., provides that district or county attorneys shall: . . . institute suit in the name of the State for recovery of. . . taxes due and unpaid on unrendered personal property; and in all suits where juaments are obtained under this law, theperson owning the property on which there are taxes due. . . shall be n. 982 *2 -

Honorable Patricia A. Elliott - Page Two

liable for all costs. The State and county shall be exempt from liability for any costs growing out of such action. (Emphasis added).

This exemption also applies to school districts and municipal corporations which are authorized to levy and collect their own taxes. V.T.C.S. article 1060a.

Article 39304 V.T.C.S., sets forth various fees to be charged by county clerks and clerks of county courts for services rendered in causes of action on the docket of the county court

It is well established that article 7297 exempts the aforementioned taxing authorities for payment of court costs In suits for the collection of delinquent taxes. Nacogdoches Independent School District v. McKinney, 513 S.W. 2d 5 (Tex. 1974); Electra Independent School District v. W.T. Wsggoner Estate, 168 S.W. 26 645 (Tex. 1943); City of Houston v. McCarthy, 371 S.W. 2d 587 (Tex. Civ. App. - Houston 1963, writ reM n.r.e.1; South Lake Independent School District v. Easterling 142 S.W. 2d 237 (Tex. Civ. App. -Beaumont 1940, writ rePdX The Texas Supremd Court has recently held that this exemption also applies to court costs arising in a bill of discovery suit initiated as an aid to the enforcement of a prior delinquent tax judgment State v. U.T.L. Aeronautics, Inc., 590 S.W. 2d 120 (Tex. 1979). In that case, the court observed that:

It is our opinion the State’s action grows out of and is grounded upon its judgment in the prior suit for taxes and relates solely to the enforcement of that judgment. But for the prior juement, there would be no basis for the State’s bill of discovery suit.

590 S.W. 2d at 12L

It is urged ln an accompanying brief the need for filing sn abstract of judgment in the records of the county clerk also exists solely by virtue of the prior tax In other words, but for the judgment In the tax suit, there would be no basis for securing and filing an abstract of juament in order to encumber the judgment debtor’s property. Accordingly, the recording fee - which, it is contended, is included among the costs to be taxed upon the initial flllng of the suit under article is a cost which ‘grows out of” the cause of action within the meaning 3930b - article 7297. The quoted passage from State v. U.T.L.~Aeronautlcs, Inc., s&ra, is relied upon as authority for this proposition.

In our opinion, however, this argument is without merit. Article 3930b neither, explicitly nor, we think, implicitly provides that a fee charged by a county clerk for recording an abstract of judgment in county records is to be included among the costs to be taxed upon the initial filing of a suit for the collection of delinquent taxes. See section 2(a). We do not think the legislature Intended for the article 7297 exemption to spply to fees for services performed during the course of a taxing authority% efforts to implement the post-judgment enforcement option of placing a *3 -0 . . - Page Three

lien on a judgment debtor’s property through the filing of an abstract of judgment in the county records. See Attorney General Opinion WW-658 (1959).

State v. U.T.L. Aeronautics, Inc., supra, does not compel a different conclusion. That case merely held that the costs arismg out of a bill of discovery suit brought by the state to determine whether a corporation had sufficient property to satisfy a prior tax judgment related solely to the enforcement of that judgment and therefore grew out of the judgment within the meaning of article 7297. It furnishes no for an agument regarding fees involved in exercising a post-judgment enforcement option which does not involve litigation.

We therefore conclude the fee charged by the Taylor County clerk for recording abstracts of judgment in the county records is not part of the “costs growing out of” the original delinquent tax suit within the meaning of article 7297, V.T.C.S., and, accordingly, the three aforementioned taxing authorities are not exempt from liability for payment of it.

SUMMARY Article 7297, V.T.C.S., does not exempt the city of Abilene, the Abilene Independent School District, and the West Central Texas Municipal Water District for payment fee charged the Taylor County clerk for recording abstracts of juc$gment in delinquent tax suits in the real property records of Taylor County.

Very truly your% Attorney General of Texas JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E.GRAY III

Executive Assistant Attorney General

Prepared Jon Bible

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

James Allison

Jon Bible

Rick Gilpin