Untitled Texas Attorney General Opinion

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). p. 910 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. p. 911 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 p. 912 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. p. 913 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 p. 914