Rogers v. Peeler

BAILEY C. MOSELEY, Justice,

dissenting.

As is his usual practice, our Chief Justice has written a comprehensible and scholarly opinion. I find no disagreement with the argument he employs except in one respect: I believe that an abstract of judgment which makes reference to a document other than a final judgment is not in substantial compliance with the requirements of the Texas Property Code5 and, therefore, does not operate to create a lien.

This is not a situation in which an abstract of judgment is a reference to a valid judgment, but which incorrectly states the date it was rendered or even that it incorrectly states the interest rate the judgment recites. The majority points out that Section 52.003 of the Texas Property Code requires that an abstract of judgment “must show” the following:

(1) the names of the plaintiff and defendant;
(2) the birthdate and driver’s license number of the defendant if available to the clerk or justice;
(3) the number of the suit in which the judgment was rendered;
(4) the defendant’s address, or if the address is not shown in the suit, the nature of citation and the date and place of service of citation;
(5) the date on which the judgment was rendered;
(6) the amount for which the judgment was rendered and the balance due;
(7) the amount of the balance due, if any, for all child support arrearage; and
(8) the rate of interest specified in the judgment.

Tex PROp.Code Ann. § 52.003 (emphasis added). As can be seen, there are four references in the statute to the judgment itself. The judgment is central and antecedent to the creation of a valid lien.

Unless otherwise specially provided by law, only one final judgment shall be rendered in any cause. Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.-Corpus Christi 1981, no writ); Hammett v. Lee, 730 S.W.2d 350, 351 (Tex.App.-Dallas 1987, writ dism’d w.o.j.). When a judgment is modified, the original judgment becomes, for all practical purposes, a nullity. Tex.R. Civ. P. 329b.

The judgment which was abstracted here was the original judgment dated October 16, 2003; the abstract of judgment was issued by the clerk of the court on the following day, October 17, 2003. A final (amended) judgment in the case was not rendered until October 19, 2003. Therefore, the abstract of judgment could not have made reference to “the judgment” rendered in the matter; it did not exist until after the abstract of judgment was entered. The abstract of judgment made reference to a judgment which was no longer in force and effect.

*380While it is true that the information contained in the abstract of judgment provided information from which the information about the location of the final judgment could be gleaned, that is not what the statute requires. An affidavit, duly filed with the county clerk, would likewise provide that information, but it would not operate to affix a lien.

My difference with the majority lies in what is meant by “substantial compliance” with the requirements for a valid abstract of judgment. I believe that reference in an abstract of judgment to an invalid judgment is not substantial compliance with the statute and, therefore, does not create a valid lien.

I respectfully dissent.

. Tex. Prop.Code Ann. § 52.003 (Vernon 2007).