Honorable Mike Driscoll Opinion No. JM-715
Harris County Attorney
1001 Preston, Suite 634 Re: Constitutionality of the Uniform
Houston, Texas 77002 Enforcement of Judgments Act, section
35.001 et seq., Civil Procedures and
Remedies Code, and related questions
Dear Mr. Driscoll:
You request an opinion on the following questions:
1. Does the Uniform Enforcement of Judgments
Act, Civil Practice and Remedies Code section
35.001 et seq., violate due process?
P 2. Is the clerk required to send the judgment
debtor notice?
3. When may the clerk issue a writ of execu-
tion pursuant to said act?
Chapter 35 of the Civil Practice and Remedies Code, titled
"Enforcement of Judgments of Other States" provides:
035.001. Definition
In this chapter, 'foreign judgment' means a
judgment. decree, or order of a court of the
United States or of any other court that is
entitled to full faith and credit in this state.
935.002. Short Title
This chapter may be cited as the Uniform
Enforcement of Foreign Judgments Act.
135.003. Filing and Status of Foreign Judgments
(a) A copy of a foreign judgment authenticated
in accordance with an act of congress or a statute
of this state may be filed in the office of the
clerk of any court of competent jurisdiction of
this state.
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(b) The clerk shall treat the foreign judgment
in the same manner as a judgment of the court in
which the foreign judgment is filed.
(c) A filed foreign judgment has the same
effect and is subject to the same procedures,
defenses, and proceedings for reopening, vacating,
staying, enforcing, or satisfying a judgment as a
judgment of the court in which it is filed.
535.004. Affidavit; Notice of Filing
(a) At the time a foreign judgment is filed,
the judgment creditor or the judgment creditor's
attorney shall file with the clerk of the court an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor.
(b) The clerk shall promptly mail notice of
the filing of the foreign judgment to the judgment
debtor at the address given and shall note the
mailing in the docket.
(c) The notice must include the name and post
office address of the judgment creditor and if the
judgment creditor has an attorney in this state,
the attorney's name and address.
835.005. Alternate Notice of Filing -- Judgment
Creditor
(a) The judgment creditor may mail a notice of
the filing of the judgment to the judgment debtor
and may file proof of mailing with the clerk.
(b) A clerk's lack of mailing the notice of
filing does not affect the enforcement proceedings
if proof of mailing by the judgment creditor has
been filed.
§35.006. Stay
(a) If the judgment debtor shows the court
that an appeal from the foreign judgment is
pending or will be taken or that a stay of
execution has been granted and proves that the
judgment debtor has furnished the security for the
satisfaction of the judgment required by the state -.
in which it was rendered, the court shall stay
enforcement of the foreign judgment until the
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appeal is concluded, the time for appeal expires,
or the stay of execution expires or is vacated.
(b) If the judgment debtor shows the court a
ground on which enforcement of a judgment of the
court of this state would be stayed, the court
shall stay enforcement of the foreign judgment for
an appropriate period and require the same
security for satisfaction of the judgment that is
required in this state.
135.007. Fees
(a) A person filing a foreign judgment shall
pay to the clerk of the court the amount as
otherwise provided by law for filing suit in the
courts of this state.
(b) Filing fees are due and payable at the
time of filing.
(c) Fees for other enforcement proceedings are
as provided by law for judgments of the courts of
this state.
535.008. Optional Procedure
A judgment creditor retains the right to bring
an action to enforce a judgment instead of pro-
ceeding under this chapter.
Your concern relative to deprivation of due process stems from
dictum appearing in Schwartz v. F.M.I. Properties Corp., 714 S.W.Zd
97, 100 (Tex. App. - Houston [14th Dist.] 1986, writ ref'd n.r.e.), in
which that court questioned the absence of a procedure set forth in
the act for the debtor to challenge the judgment of another state.
The United States Supreme Court in Underwriters National
Assurance Co. v. North Carolina Life, 455 U.S. 691 (1982) stated:
The concept of full faith and credit is central
to OUT system of jurisprudence. Ours is a union
of States, each having its own judicial system
capable of adjudicating the rights and responsi-
bilities of the parties brought before it. Given
this structure, there is always a risk that two or
more States will exercise their power over the
same case or controversy, with the uncertainty,
confusion, and delay that necessarily accompany
relitigation of the same issue. See Sherrer v.
Sherrer, 334 U.S. 343. 355 (194S);iley v. New
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York Trust Co., 315 U.S. 343, 348-349 (1942).
Recognizing that this risk of relitigation inheres
in our federal system, the Framers provided that
'Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial
Proceedings of every other State.' U. S. Const.
Art IV, Il. This Court has consistently
recognized that, in order to fulfill this
constitutional mandate, 'the judgment of a state
court should have the same credit, validity,
and effect, in every other court of the United
States, which it had in the state where it was
pronounced.' Hampton v. McConnel, 3 Wheat 234,
235, 4 L Ed 378 (1818) (Marshall, C. J.); Riley v.
New York Trust Co., supra, at 353.
The Colorado Supreme Court (Colorado adopted the Uniform Act in
1969) in Gedeon v. Gedeon. 630 P.2d 579 (Colo. 1981). addressed the
subject of due process rights under the Uniform Enforcement of Foreign
Judgments Act. In an appeal from a trial court's judgment recognizing
a judgment from the State of New Mexico, the court stated:
Appellant also challenges the constitutionality
of the notice provisions of the Act. The Act
requires only that the judgment debtor be notified
by mail at his last known address. Appellant
claims that the procedure of entering the judgment
without formal notice or the requirement of a
hearing is an unconstitutional taking of property
without due process of law. See Fuentes v.
Shevin, 407 U.S. 67, 92 S.Ct. 1983.2 L.Ed.Zd 556
(1972). We do not agree.
Fuentes, m, and its progeny required only
that pre-judgment garnishment and attachment
procedures comport with the strict requirements of
due process notice and hearing. This action
involves a post-judgment procedure. The basic
requirements of notice and hearing have been met
by the New Mexico court which rendered the
original judgment. The appellee seeks merely to
enforce her judgment against her ex-spouse.
630 P.2d at 582.
Section 35.003(c) provides that "[a] filed foreign judgment has
the same effect and is subject to the same procedures, defenses, and
proceedings for reopening, vacating, staying, enforcing, or satisfying
a judgment as a judgment of the court in which it is filed." -
(Emphasis added).
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Honorable Mike Driscoll - Page 5 (JM-715)
In Attorney General Opinion JM-11 (1983). the provision set forth
in section 35.007(c) (then, article 232Sb-5, V.T.C.S.) providing "Fees
for other enforcement proceedings are as provided by law for judgments
of the courts of this state" was found to "plainly provide" for fees
"the same as those provided by law for enforcement of judgments of the
courts of this state."
In Merritt v. Barless, 685 S.W.Zd 708 (Tex. App. - Dallas 1984,
no writ), the trial court had denied the filing of and execution on a
Florida judgment. The appellate court held that the trial court was
without authority to take such action, and stated:
We are directed by section 7 of article 2328b-5
[now section 35.0031 to interpret and construe
this act to achieve its general purpose, i.e., the
uniform enforcement of foreign judgmex To
accomplish this purpose, we are instructed to give
the same effect to foreign judgments that we would
give to an identical judgment rendered in the
Texas court where filed.
It is our opinion that section 35.003(c) has the effect of
placing a foreign judgment in the same posture as a domestic judgment
in that the foreign judgment is subject to the same procedures,
defenses and proceedings as a judgment of the court in which it is
filed. Consequently, we cannot say that chapter 35 "Enforcement of
Judgments of Other States" does not provide a procedure for the debtof
to challenge the judgment of another state filed pursuant to the act.
We are of the opinion that the issue you have presented relative to
chapter 35 does not reflect a deprivation of due process.
1. In Schwartz V. F.M.I. Properties Corporation, supra, the
debtors filed a bill of review challenging a New York judgment
registered in Texas. The court held that the debtors failed to
present the meritorious defense required to obtain relief under a bill
of review and that the New York judgment was entitled to full faith
and credit.
In Underwriters National Assurance Co. v. North Carolina Life,
supra, the U.S. Supreme Court noted that before a court is bound by
the judgment rendered in another State, it may inquire into the
jurisdictional basis of the foreign court's decree since full faith
and credit need not be given if the court did not have jurisdiction
over the subject matter or the relevant parties. However, the court
concluded the inquiry is limited to whether the question was fully
considered and finally determined.
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The answers to your remaining questions are governed by the
requirement that a foreign judgment be treated as identical to
judgments rendered in the Texas court where it is filed and is
"subject to the same procedures, defenses and proceedings." In
addition to the requirement that the clerk "promptly mail notice of
the filing of the foreign judgment to the judgment creditor" imposed
by section 35.004(b), V.T.C.S, Rule 306a(3) of the Texas Rules of
Civil Procedure, requires that the clerk give notice to the parties or
their attorneys upon the signing of a final judgment.
With respect to the issuance of a writ of execution you state
that the clerk in Harris County prefers to wait 30 days after the
filing of the foreign judgment. You further state that it has been
the practice of the judgment creditor to not request that execution
issue until the expiration of such 30 day period. This procedure
would appear to be in harmony with Rule 627 of the Texas Rules of
Civil Procedure, which provides in pertinent part:
If no supersedeas bond or notice of appeal, as
required of agencies exempt from filing bonds, has
been filed and approved, the clerk of the court or
justice of the peace shall issue the execution
upon such judgment upon application of the
successful party or his attorney after the
expiration of thirty days from the time a final
judgment is signed.
Since the foreign judgment has already been signed when it
reaches the clerk of the court, the filing of the judgment is the
first affirmative act to be taken upon the judgment in this state. It
is at this juncture that the judgment is for the first time placed in
a position to be subjected to the same procedures, defenses and
proceedings "as a judgment of the court in which it is filed." This
is the first time that the debtor has an opportunity to attempt to
stay the enforcement of the foreign judgment upon a showing of the
contingencies contained in section 35.006. We believe that the 30 day
waiting period after filing of the foreign judgment before issuance of
execution to be in harmony with the act, the requirement of due
process and the spirit of Rule 627 of the Texas Rules of Civil
Procedure.
SUMMARY
Chapter 35 of the Civil Practice and Remedies
Code, Ticled "Enforcement of Judgments of Other
States" provides a procedure for a debtor to
challenge a foreign judgment and is not violative
of the due process clause. The clerk of the court
is required to mail notice of the filing of the
foreign judgment to the judgment debtor as provided
in section 35.004(b) of the Civil Practice and
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Remedies Code and Rule 306a(3) of the Texas Rules
of Civil Procedure. The clerk may, pursuant to
Rule 627 of the Texas Rules of Civil Procedure,
issue a writ of execution 30 days after the filing
of the foreign judgment.
Very Itruly you*
JIM MATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Coannittee
Prepared by Tom G. Davis
Assistant Attorney General
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Untitled Texas Attorney General Opinion
Combined Opinion