Reversed and Remanded and Opinion filed January 27, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00086-CV

                   IN THE INTEREST OF C.D.E., A CHILD


                    On Appeal from the 246th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-55822

                                  OPINION

      The Office of the Attorney General (OAG) appeals from an order vacating
and terminating its lien on a child support obligor’s accounts, conditionally
enjoining the OAG from instituting any further liens against the obligor, and
directing the OAG to credit any funds previously levied from the obligor’s
accounts as of the date the lien was imposed. The OAG contends that the trial court
lacked jurisdiction to enjoin the OAG and that its directives violate the separation
of powers doctrine. The OAG also contends that the trial court erred in terminating
the child support lien and ordering that levied funds be first applied against interest
accrued on the arrearage. We reverse and remand.
                   FACTUAL AND PROCEDURAL BACKGROUND

      Mother and Father were married in 1992 and divorced in 1994. They had
one child, C.D.E. Father was ordered to pay child support of $200.00 semi-
monthly, beginning in July 1994.

      On May 23, 2011, the trial court signed an order enforcing and modifying
Father’s current child support obligation. The trial court upwardly modified
Father’s ongoing child support obligation to $1,000.00 per month. The trial court
also found that Father was in arrears in the amount of $126,290.50, and granted a
judgment in favor of the OAG for that amount, plus interest.

      Father was ordered to pay the arrearage judgment by paying $200.00 each
month beginning in June 2011, until the arrearage was paid in full, or on the
termination of current child support for the child. At that point, if Father had not
paid the judgment in full by the date his current child support obligation ended, he
was ordered to pay $1,200.00 each month until the remainder of the arrearage was
paid. The order included a wage withholding order and specified that “[t]he
withholding order authorized herein shall include such payments, but nothing
herein shall prohibit the use of other collection methods authorized by law.” The
order also informed Father that “[t]he court’s order setting payments on a child
support judgment . . . does not preclude or limit the use of any other means for
enforcement of the judgment.”

      Additionally, the order included a “Notice to Obligor” informing Father that
any judgment rendered in the order was not an installment debt and that the entire
judgment was now due and owing. The notice warned that the OAG “may take
whatever enforcement remedies deemed necessary[,] including any remedies
required by federal or state laws to collect this judgment, even if regular periodic
payments on this judgment are being made.”
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      Under the May 23, 2011 order, all of Father’s support obligations were to be
paid to the Texas Child Support Disbursement Unit for distribution to Mother. The
order reflected that both Mother and Father agreed to the entry of this order, and it
was not appealed.

      In February 2012, Father moved to terminate or clarify the May 23, 2011
order concerning his ongoing child support obligation for the now nineteen-year-
old child. On May 11, 2012, the trial court signed an order granting father’s
motion, terminating the ongoing child support obligation. However, because Father
had failed to pay the arrearage judgment in full by the date his current child
support obligation ended, he became obligated to pay $1,200.00 each month until
the arrearage was paid in full as provided in the May 23, 2011 order.

      On September 12, 2012, the OAG issued a “Notice of Child Support
Lien/Child Support Lien” on several of Father’s Wells Fargo accounts. In
response, Father filed a petition for declaratory judgment to set aside the child
support lien. Father requested a declaration that arrearages no longer exist or, if
they do exist, the lien should be terminated because Father was paying off those
arrearages in accordance with the May 23, 2011 order. After an associate judge
denied the petition, Father appealed this decision to the trial court.

      In October 2013, the trial court heard Father’s declaratory judgment action.
In the hearing, Father claimed that the OAG had placed a lien on seven Wells
Fargo accounts and that funds had been removed from all of the accounts except
for two, a Roth IRA and a brokerage account. Father requested that the OAG’s lien
be removed from the Roth IRA and brokerage accounts, subject to being refiled if
he failed to timely make payments on the child support arrearages. Father also
testified that his employer withholds approximately $1,200.00 per month pursuant
to the wage withholding order.

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      Father acknowledged that he owed arrearages and agreed that any funds
removed from his other Wells Fargo accounts should be transferred to the OAG
and credited toward his child support obligation. However, because Father claimed
that the OAG had removed the funds from those accounts a year earlier, he
requested that his account be credited as of the time the funds were removed, rather
than when they were transferred to the OAG. No documentary or other evidence
was admitted to show whether or when any funds had been removed from those
accounts, nor was evidence presented to show when any funds that may have been
removed were transferred to the OAG or distributed to Mother. Evidence
submitted by the OAG reflected that as of the time of the hearing, Father still owed
$106,857.74 on the arrearage judgment.

      On November 22, 2013, the trial court issued an order on Father’s motion
for declaratory relief. The trial court vacated and terminated the OAG’s September
12, 2012 child support lien as to the Wells Fargo Roth IRA and brokerage
accounts. The trial court also enjoined the OAG from instituting any further child
support liens against Father “unless [Father], after the date of this order, should be
more than 30 days in arrears towards any confirmed child support arrearage
obligation previously ordered.” Additionally, the trial court ordered the OAG and
the Child Support Disbursement Unit to apply any and all funds levied from the
other accounts to the child support account and to credit Father’s obligation as of
September 12, 2012, the date of the lien, “for the purposes of reducing the interest
owed by [Father] against any confirmed arrearage of [Father].”

      The OAG moved for a new trial, arguing that the trial court lacked authority
to vacate or terminate a child support lien, to order the OAG to apply levied funds
to interest, or to conditionally enjoin the OAG from instituting any child support
liens against Father. After a hearing, the trial court denied the motion.

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                          ANALYSIS OF THE OAG’S ISSUES

      The OAG contends that the trial court (1) lacked subject matter jurisdiction
to enjoin the OAG; (2) violated the separation of powers doctrine when it enjoined
the OAG from filing child support liens when arrearages were owed; (3) erred in
terminating the child support lien when the trial court found that Father owed child
support liens; and (4) erred in ordering that levied funds from Father’s Wells Fargo
accounts be first applied against interest accrued on his child support arrearage.

      We review the court’s ruling under an abuse of discretion standard. Attorney
Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex. App.—Houston [1st Dist.] 2002,
no pet.). A trial court’s judgment is reversed only when it appears from the record
as a whole that the trial court abused its discretion. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990); Stevens, 84 S.W.3d at 722. A trial court abuses its
discretion if it reaches a decision so arbitrary and unreasonable it amounts to a
clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply
the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Stevens, 84 S.W.3d
at 722.

I.    Termination of the OAG’s Lien

      We begin with the OAG’s third issue, in which the OAG contends that the
trial court erred by vacating and terminating the September 12, 2012 child support
lien when Father owed a confirmed child support arrearage. Although the trial
court’s order does not recite any evidentiary findings supporting this order, it
appears from the record that the trial court accepted Father’s contention that the
lien should be terminated so long as Father continued to pay off the arrearage in
accordance with the May 23, 2011 order. On appeal, the OAG argues that the trial
court’s order violates Family Code section 157.323(c).


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       The Family Code authorizes the OAG, the state’s designated Title IV-D
agency, to enforce child support orders and to collect and distribute support
payments. Office of the Attorney Gen. of Tex. v. Scholer, 403 S.W.3d 859, 862
(Tex. 2013) (citing Tex. Fam. Code §§ 231.001, 231.101(a)(5)–(6)). As a child
support claimant, the OAG is expressly authorized to enforce a child support
obligation by filing a statutorily prescribed lien to collect all amounts of child
support due and owing. See Tex. Fam. Code §§ 157.311(2)(B), 157.312(a), (d), (f),
157.314(a), (d). Such a lien remains effective “until all current support and child
support arrearages . . . have been paid or the lien is otherwise released as provided
by this subchapter” and secures payment of all child support arrearages owed,
“including arrearages that accrue after the lien notice was filed or delivered.” Id. §
157.318.

       Family Code section 157.323 provides that, in an action to determine
arrearages, if arrearages are owed by the obligor, the court shall:

       1) render judgment against the obligor for the amount due, plus costs
       and reasonable attorney’s fees;
       (2) order any official authorized to levy execution to satisfy the lien,
       costs, and attorney’s fees by selling any property on which a lien is
       established under this subchapter; or
       (3) order an individual or organization in possession of nonexempt
       personal property or cash owned by the obligor to dispose of the
       property as the court may direct.

Tex. Fam. Code § 157.323(c). The statute does not provide an option authorizing
the trial court to vacate or terminate a lien when arrearages are due and owing. See
id.; see also Tex. Fam. Code § 157.322 (mandating that child support lien claimant
shall release the lien on payment in full of the amount of child support due,
together with any costs and reasonable attorney’s fees, but making no provision for
a trial court to order a release).

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      Consistent with the OAG’s statutory authority to enforce, collect, and
distribute child support payments, the May 23, 2011 order enforcing and
modifying Father’s child support obligation informed Father that the trial court’s
“order setting payment on a child support judgment . . . does not preclude or limit
the use of any other means for enforcement of the judgment.” The order also
informed Father that the judgment was “not an installment debt,” that “the entire
judgment is now due and owing,” and that the OAG “may take whatever
enforcement remedies deemed necessary” to collect on the judgment, “even if
regular periodic payments on this judgment are being made.” Both Mother and
Father expressly agreed to the terms of the order. The record also reflects that, as
of the October 2013 hearing, documentary evidence showed that Father remained
in arrears of over $106,000.00.

      Therefore, even if the trial court found that Father was timely making
payments on the arrearage in compliance with the May 23, 2011 order, that portion
of the trial court’s order terminating the OAG’s September 12, 2012 lien was
contrary to the applicable provisions of the Family Code and the OAG’s authority
when, as here, an arrearage remained due and owing. See Tex. Fam. Code §
157.323; see also In re R.C.T., 294 S.W.3d 238, 241–43 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) (holding that obligor’s compliance with a payout
schedule did not preclude a claimant such as the OAG from utilizing any available
collection efforts, including filing a child support lien, and therefore the trial court
erred by ordering the child support lien vacated).

      We sustain the OAG’s third issue and reverse that portion of the trial court’s
order vacating and terminating the OAG’s September 12, 2012 lien and prohibiting
the OAG from filing further liens.



                                           7
II.      The Trial Court’s Subject Matter Jurisdiction to Enjoin the OAG

         In its first issue, the OAG contends that the trial court also erred by
conditionally enjoining the OAG from issuing further child support liens and by
directing the OAG to credit Father’s child support obligation as of a specific date
to reduce interest owed. According to the OAG, the order constitutes an injunction
against the OAG, which the trial court lacks subject matter jurisdiction to issue.

         Texas Government Code section 22.002(c) provides that only the Supreme
Court of Texas may issue a “writ of mandamus or injunction, or any other
mandatory or compulsory writ or process” to a constitutionally designated
executive officer to “compel the performance of a judicial, ministerial, or
discretionary act or duty that, by state law, the officer or officers are authorized to
perform.” See Tex. Gov’t Code § 22.002(c).1 The Attorney General is such a
constitutionally designated executive officer. Tex. Const. art. IV. § 1.

         An injunction is a remedial writ that depends on the issuing court’s equity
jurisdiction. Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex.
2000) (per curiam). When determining whether an order is an injunction, we look
to its character and function to determine its classification. Id.; Del Valle Indep.


1
    Texas Government Code section 22.002(c) provides:

         Only the supreme court has the authority to issue a writ of mandamus or
         injunction, or any other mandatory or compulsory writ or process, against any of
         the officers of the executive departments of the government of this state to order
         or compel the performance of a judicial, ministerial, or discretionary act or duty
         that, by state law, the officer or officers are authorized to perform.

        Tex. Gov’t Code Ann. § 22.002(c). The Supreme Court of Texas has interpreted section
22.002(c) to deprive district courts of jurisdiction over executive officer respondents in
mandamus actions, unless the legislature has expressly provided statutory authorization
otherwise. See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 672 (Tex. 1995). Father points
to no constitutional or statutory grant of jurisdiction that would otherwise authorize the trial
court’s action.
                                                 8
Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). An injunction may be either
prohibitive, forbidding particular conduct, or mandatory, requiring particular
conduct. In re Estate of Skinner, 417 S.W.3d 639, 642–43 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex.
App.—Houston [14th Dist.] 2000, no pet).

      In this case, that portion of the trial court’s order conditionally enjoining the
OAG from instituting any further child support liens against Father forbids
particular conduct (a prohibitive injunction), and that portion of the order requiring
any funds levied from Father’s accounts to be applied and credited as of a specific
date requires the OAG and Child Support Distribution Unit to take certain actions
(a mandatory injunction). Accordingly, these orders may be properly characterized
as types of injunctions. See Qwest Commc’ns Corp., 24 S.W.3d at 336 (holding
that order restricting party’s conduct and requiring it to provide notice and perform
monitoring during certain construction activities was an injunction); Lopez, 845
S.W.2d at 809 (holding that the trial court’s order adopting and implementing an
election plan provided mandatory injunctive relief).

      As noted above, the OAG is entitled to enforce a child support obligation by
issuing a lien as provided by statute, and such a lien remains effective until all
child support arrearages are either paid or released. See Tex. Fam. Code §§
157.312, 157.314, 157.318. Because the trial court’s order enjoins the OAG from
issuing further liens and further compels the OAG to perform “a judicial,
ministerial, or discretionary act or duty,” the trial court lacks jurisdiction to issue
these orders under state law. See Tex. Gov’t Code § 22.002(c); see also In re A.B.,
267 S.W.3d 564, 565 (Tex. App.—Dallas 2008, no pet.) (holding that Tex. Gov’t
Code § 22.002(c) deprived the trial court of jurisdiction to order the OAG and the



                                          9
Child Support Distribution Unit to disburse child support payments to a private
company appointed by the court).

      In response to the OAG’s issue, Father offers no legal analysis or argument
suggesting that the trial court was authorized to issue its order on these facts;
instead, Father argues only the trial court enjoined the OAG because it found the
OAG’s actions “punitive.” We acknowledge, however, that this court has
previously held that a district court has inherent power to issue a mandatory order
to the OAG when the OAG is a party to litigation. See In re Office of the Attorney
Gen. of Tex., No. 14-08-00665-CV, 2008 WL 3833785, at *3–4 (Tex. App.—
Houston [14th Dist.] August 19, 2008, orig. proceeding) (mem. op.).2

      In Office of the Attorney General, the OAG issued a lien notice to a child
support obligor’s bank after obtaining a default judgment ordering the obligor to
pay monthly and retroactive child support. Id. at *1. The trial court, upon finding
that the OAG had not properly served the obligor with process, set aside the default
judgment, ordered the lien issued by the OAG extinguished, and directed the OAG
to immediately release the lien. Id. On mandamus, this court rejected the OAG’s
argument that Government Code section 22.002(c) deprived the trial court of
jurisdiction to order to the OAG to release the lien, noting that the trial court had
inherent authority to set aside a judgment and order a new trial under Texas Rule
of Civil Procedure 329b(f). Id. at *3–4. Because the trial court was authorized to
set aside an improper default judgment and order a new trial, this court held that
the trial court was also authorized to order the OAG to comply with its judgment,
despite its status as an executive officer. See id. at *4.

      Importantly, in Office of the Attorney General, the trial court’s authority to
order the OAG to release the lien flowed from its authority to set aside the
      2
          The OAG does not mention or attempt to distinguish this case in its brief.

                                                10
improper default judgment, which necessarily extinguished the judgment on which
the OAG’s lien was based. See id. at *3–4. In contrast, the trial court in the present
case conditionally enjoined the OAG from issuing any further liens on Father’s
Roth IRA and brokerage accounts to enforce an existing, confirmed arrearage that
had yet to be satisfied, contrary to the Family Code as discussed above. Therefore,
our earlier opinion in Office of the Attorney General is distinguishable and does not
dictate a different result here.

      Our disposition of this issue should not be interpreted to preclude the trial
court from exercising its limited discretion to determine the amount of Father’s
remaining arrearage based on a proper evidentiary review, and to take into
consideration any applicable statutorily authorized defenses that are properly raised
and supported by evidence. See Tex. Fam. Code § 157.323(c); Scholer, 403
S.W.3d at 865 (noting that “a court may not adjust arrearage amounts outside of
the statutorily mandated exceptions, offsets, and counterclaims”).3 As this Court
has explained in the context of a proceeding to confirm child support arrearages,
“the trial court’s child support calculations must be based on the payment evidence
presented, not the trial court’s assessment of what is fair or reasonable.” Chenault
v. Banks, 296 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

      In this appeal, however, the record reflects that the trial court had little or no
evidence before it to determine what amount of funds, if any, had been levied from
Father’s accounts and whether or when any funds levied had been applied and
credited toward Father’s child support arrearage. Absent such evidence, the trial
court merely enjoined the OAG from filing further liens and ordered “any and all”
funds that may have been levied at any time to be credited to Father’s obligation as
of a specific date—orders the trial court lacked jurisdiction to render. If the trial

      3
          The OAG conceded as much at oral argument.

                                            11
court was presented with the proper evidence, it had the power to determine any
proper credits and determine the actual amount of the arrearage at the time of the
judgment.

      We therefore sustain the OAG’s first issue, and reverse those portions of the
trial court’s order conditionally enjoining the OAG from instituting any further
child support liens and ordering the OAG and the Child Support Disbursement
Unit to apply and credit to Father’s child support obligation any and all funds
levied by the OAG as of September 12, 2012, the date of the lien. Accordingly, we
need not reach the OAG’s second and fourth issues.

                                   CONCLUSION

      We sustain the OAG’s first and third issues, and do not reach its second and
fourth issues. We reverse those portions of the trial court’s November 22, 2013
order (1) vacating the OAG’s September 12, 2012 lien, (2) conditionally enjoining
the OAG from filing any further child support liens against Father, and (3)
ordering the OAG and the Child Support Disbursement Unit to apply and credit to
Father’s child support obligation any and all funds levied by the OAG as of the
date of the lien. We remand for further proceedings consistent with this opinion.




                                      /s/     Ken Wise
                                              Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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