Office of tfy 1ZIttornep 65eneral
Sbtatt of Qexae
DAN MORALES October 5,1992
.\TTORS:EY
GENERAL
Honorable Mike DriscoII Opinion No. DM-174
Harris County District Attorney
1001 Preston, Suite 634 Re: Authority of county clerk to
Houston, Texas 77002-1891 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 ‘judgmentdebtor’as a partyagainstwhom a judgment is renderedand
‘judgmentcreditor”as the party in whose favor a judgment has bxn rendered,whether the partyis a
plaintiff,countcrchimant, cros-claimant, third partyplainti@or aher judgmentcreditor. 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 SSOfee
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 118.052is 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.
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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. OQ118.052(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
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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-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 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
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