Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS

March 20, 1989

Honorable Fred G. Rodriguez Opinion No. Jr+1029
Criminal District Attorney
Bexar County Courthouse Re: Whether an abstract of
San Antonio, Texas 78205 judgment must meet the re-
quirements of section 12.013
of the Property Code
(RQ-1562)

Dear Mr. Rodriguez.:

Chapter 52 of the Property Code provides for the crea-
tion of a lien against the real property of a defendant who
has. suffered an adverse monetary judgment in court by means
of the recordation of the abstract of such judgment.

You ask:

Regardless of who prepares a[n] . . .
Abstract of Judgment pursuant to Texas
Property Code 5 52.002, must the . . .
Abstract of Judgment meet the requirements of
Texas Property Code 5 12.013?l

Section 52.002 of the Property Code provides:

(a) On application of a person in whose
favor a judgment is rendered in a small
claims court or a justice court or on

1. Your full question was:

Regardless of who prepares a or
Abstract of Judgment pursuant to Texas
Property Code 5 52.002, must the Judcnnent or
Abstract of Judgment meet the requirements
of Texas Property Code 5 12.0131 (Emphasis
added.)

Section 52.002 provides only for preparation of abstracts of
judgment. Accordingly, we will address your question only
with respect to abstracts of judgment.

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Honorable Fred G. Rodriguez - Page 2 (JM-1029)

application of that person's agent, attorney,
or assignee, the judge or justice of the
peace who rendered the judgment shall prepare
and deliver to the applicant an abstract of
the judgment.

(b) A person in whose favor a judgment is
rendered in a court other than a small claims
court or a justice court or the person's
agent, attorney, or assignee may prepare the
abstract of judgment. The abstract of
judgment must be verified by the person
preparing the abstract.

(c) If the clerk prepares the abstract,
the applicant for the abstract must pay the
fee allowed by law.

Section 12.013 of the Property Code provides for the
recording of judgments and abstract of judgments as follows:

A judgment or an abstract of a judgment of
a court in this state may be recorded if the
judgment is attested under the signature and
seal of the clerk of the court that rendered
the judgment.

Provisions substantially equivalent to those currently
in section 12.013 have appeared in Texas statutes for over a
hundred years. See. e.a., Tex. Rev. Civ. Stat. art. 4338
(1879).

For the reasons given below, we conclude that the
attestation requirement of section 12.013 does not apply to
abstracts of judgment prepared under section 52.002.

First, section 12.013, on its face, provides only for
the attestation of a iudoment, not the attestation of an
abstract of iudoment. Section 52.002 provides, on the other
hand, only for the preparation of abstracts of iudoment.

Section 52.001 indicates that compliance with the re-
quirements of chapter 52, vis-a-vis an abstract of judgment,
suffices, in itself, to create a lien under that chapter.
Section 52.001 provides:

A first or subsequent abstract of judg-
ment, when it is recorded and indexed in
accordance with this chanter, constitutes a
lien on the real property of the defendant
located in the county in which the abstract

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Honorable Fred G. Rodriguez - Page 3 (JM-1029)

recorded and indexed, including real
izoperty acquired after such recording and
indexing. (Emphasis added.)

Chapter 52 indeed appears to provide a comprehensive
scheme for the recording of abstracts so as to create liens.
Section 52.002, quoted above, provides for the preparation
of the abstract. Section 52.003 provides for the contents
of the abstract. Section 52.004 provides for the recording
and indexing of the abstract as follows:

(a) The county clerk shall immediately
record in the county judgment records each
properly authenticated abstract of judgment
that is presented for recording. The clerk
shall note in the records the date and hour
an abstract of judgment is received.

(b) At the same time an abstract is
recorded, the county clerk shall enter the
abstract on the alphabetical index to the
judgment records, showing:

(1) the name of each plaintiff in the
judgment;

(2) the name of each defendant in
judgment: and

(3) the number of the page in the
records in which the abstract is recorded.

(c) The clerk shall leave a space at the
foot of each recorded abstract for the entry
of credits on or satisfaction of the judgment
and shall make those entries when credits are
properly shown.

It might be argued that the requirement in section
52.004, subsection (a), that an abstract of judgment be
"properly authenticated" prior to recordation refers to
the "attestation" under section 12.013. However, we think
that the requirement that the abstract be t*properly
authenticated" can be met by the justice of peace or judge
of a small claims courts authenticating abstracts prepared
by the justice or judge under subsection (a) of section
52.002, or by compliance with the requirement that the
abstract be "verified by the person preparing the abstract"
for abstracts prepared under subsection (b) of section
52.002. (See Black's Law Dictionary 121 (5th ed. 1979),

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Honorable Fred G. Rodriguez - Page 4 (JM-1029)

defining "authenticationl' as, inter alia, llverifications of
judgments.")

Thus pursuant to section 52.001, abstracts of judgment
prepared under section 52.002 constitute liens when recorded
and indexed in accordance with chapter 52. The attestation
requirement of section 12.013 is not only, on its face,
inapplicable to abstracts of judgment (as opposed to judg-
ments), but is specifically made inapplicable to chapter 52
abstracts by the provision of section 52.001 that compliance
with chapter 52 alone suffices to create liens under that
chapter. Perhaps the legislature might think it appropriate
to consider the matter of whether chapter 52 abstracts
should be made subject to attestation requirements.

SUMMARY

The requirement of section 12.013 of the
Property Code that a "judgment [be] . . .
attested under the signature and seal of the
clerk of the court that rendered judgment"
prior to recordation does not apply to ab-
stracts of judgment prepared and recorded
under chapter 52 of the Property, Code.

J I M MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

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