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The Attorney General of Texas
March 19, 1981
MARK WHITE
Attorney General
Honorable Patricia A. Elliott 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 judgment 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 the
county clerk of the county in which the property is located. The property
thereby becomes encumbered in favor of the 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 by 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 authority for the. $3.00 fee charged by 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
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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 from liability 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 that 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 that the need for filing sn abstract of
judgment in the records of the county clerk also exists solely by virtue of the prior tax
judgment In other words, but for the judgment In the delinquent 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
3930b - is a cost which ‘grows out of” the cause of action within the meaning of
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 the 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
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Honorable Patricia A. Elliott - 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
delinquent 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
authority for an agument regarding fees involved in exercising a post-judgment
enforcement option which does not involve litigation.
We therefore conclude that 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, that 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 from liability for payment of
the fee charged by 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%
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E.GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
p. 984
Untitled Texas Attorney General Opinion
Combined Opinion