   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                             February 22,200l



The Honorable Toby Goodman                             Opinion No. JC-0346
Chair, Committee on Juvenile Justice
   and Family Issues                                   Re: Whether a statute that permits a court to order
Texas House of Representatives                         income withholding to collect certain attorney’s
P.O. Box 2910                                          fees and costs associated with establishing or
Austin, Texas 78768-29 10                              enforcing a child-support     obligation violates
                                                       article XVI, section 28 of the Texas Constitution
                                                       (RQ-0291-JC)


Dear Representative    Goodman:

           Although article XVI, section 28 of the Texas Constitution generally forbids garnishing
wages, it permits garnishment to enforce court-ordered child-support payments. See TEX. CONST.
art. XVI, 8 28( 1). Statutes contemplate that an order for income withholding, a type of garnishment,
may include “ordered fees and costs.” See, e.g., TEX. FAM. CODEANN. $5 158.102, .103(3) (Vernon
supp. 2001), - see also HOUSESTUDY GROUP, SPECIAL LEGISLATIVE F&PORT, Child Support: Issues
Facing the State 13 (Apr. 4, 1983) (explaining that, although income withholding and garnishment
are “technically” distinguishable, article XVI, section 28 of Texas Constitution encompasses both);
HOUSE STUDY GROUP,BILL ANALYSIS, Tex. H.J. Res. 1,68th Leg., R.S., at 4 (1983) (same). You
question whether certain ordered attorney’s fees and costs are “for the enforcement of court-ordered
. . . child support payments” and therefore may be subject to an order for income withholding under
article XVI, section 28 of the constitution.’

         We conclude that a statute constitutionally     may not permit a court to order income
withholding to pay attorney’s fees and costs associated with establishing a child-support obligation.
Attorney’s fees and costs incurred to establish a child-support obligation, see Request Letter, note
1, at 3, are not associated with enforcing an existing obligation. See TEX. CONST. art. XVI, 8 28.
On the other hand, based upon relevant case law, we conclude that a statute that permits a court to
include attorney’s fees incurred to enforce an existing child-support obligation in an order for
income withholding comports with article XVI, section 28. See Tamez v. Tamez, 822 S.W.2d 688,
69 1 (Tex. App.-Corpus Christi 199 1, writ denied). Likewise, a statute may, consistently with article
XVI, section 28, permit a court to include certain costs, such as “fees charged for the services of



         ‘See Letter from Honorable Toby Goodman, Chair, Committee on Juvenile Justice and Family Issues, Texas
House of Representatives,  to Honorable John Comyn, Texas Attorney General (Oct. 2, 2000) (on file with Opinion
Committee) [hereinafter Request Letter].
The Honorable     Toby Goodman          - Page 2             (~~-0346)




Domestic Relations Offices and court registries,” see Request Letter, supra note 1, at 3, in an
income-withholding    order if the court determines that the costs were necessarily incurred to enforce
an existing child-support obligation. See Tamez, 822 S.W.2d at 691.

        You ask three questions:

                 (1) May attorney’s fees and costs arising from the establishment of
                 a child support obligation be collected through income withholding,
                 as such withholding is authorized under Article XVI, section 28,
                 Texas Constitution?

                 (2) May ordered attorney fees and costs relating to the enforcement
                 of a child support obligation be enforced “by any means available for
                 the enforcement of child support,” including income withholding, in
                 accordance with Article XVI, section 28, Texas Constitution?

                 (3) May the constitutionally authorized garnishment of current wages
                 for personal services for the enforcement of court-ordered child
                 support payments be extended to include fees charged for the services
                 of Domestic Relations Offices and court registries in the processing
                 of child support cases?

Request Letter, supra note 1, at 3.

        Article XVI, section 28 of the Texas Constitution                 generally prohibits garnishing wages:

                     No current wages for personal service shall ever be subject to
                 garnishment, except for the enforcement of court-ordered:

                           (1) child support payments; or

                           (2) spousal maintenance.

TEX. CONST. art. XVI, 8 28.*



        ‘Senate Joint Resolution   No. 9 proposes to rewrite article XVI, section 28 as follows:

                      No current wages for personal       service shall ever be subject to garnishment,
                 except for the enforcement of:

                           (1) court-ordered     child support payments   or spousal maintenance;   or

                           (2) a judgment      entered by a court.
                                                                                                          (continued...)
The Honorable      Toby Goodman          - Page 3   (JC-0346)




         Portions of chapters 157 and 158 of the Family Code authorize a court to enforce an existing
child-support obligation with an income-withholding     order. “If [a] court finds that [a] respondent
has failed to make child support payments” and has thereby accumulated a child-support arrearage,
the court “shall order the respondent to pay the movant’s reasonable attorney’s fees and all court
costs in addition to the arrearages.” TEX.FAM. CODE ANN. 8 157.167(a) (Vernon Sup. 2001). But
see id. 8 157.167(b) (allowing court to waive requirement for good cause). The court may enforce
payment of these fees and costs “by any means available” to enforce the payment of child support,
including income withholding under chapter 158. Id. 5 157.167(c); see also id. 9 157.264 (Vernon
 1996) (“A money judgment rendered as provided in this subchapter may be enforced by any means
available . . . by an order requiring that income be withheld from the [obligor’s] disposable
earnings . . . .“).

         Chapter 158 provides specifically for withholding from earnings to pay child support. In an
action for past-due child-support payments, a court must order that income be withheld from the
obligor’s disposable      earnings to liquidate the child-support        arrearage. Id. $ 158.003(a)
(Vernon Supp. 2001). Under section 158.102, a court may issue an “order or writ for income
withholding . . . until all current support and child support arrearages, interest, and any applicable
fees and costs, including ordered attorney ‘sfees and court costs, have been paid.” Id. 4 158.102
(emphasis added). Section 158.103 requires a court to include in its order or writ of withholding
“the information that is necessary for an employer or other entity to comply with the existing child
support order, including . . . the amount of arrearages, accrued interest, and orderedfees and costs.”
Id. 0 158.103(3) (emphasis added).

         You suggest that, to the extent that these sections of chapters 157 and 158 of the Family Code
permit a court to order income withholding to pay attorney’s fees and court costs related to
establishing a child-support obligation or to enforcing an existing child-support obligation, they run
afoul of article XVI, section 28. See Request Letter, supra note 1, at l-3. You summarize current
court practices:

                           Some Texas courts order that attorney’s fees and costs
                  incurred in the enforcement of child support be collected through
                  income withholding,       along with the requisite payment on the
                  obligation (i.e., current support and any arrears and interest on the
                  arrears). Other courts, however, apparently order attorney’s fees and
                  costs incurred in the establishment of a child support obligation to be
                  collected through income withholding. Furthermore, some courts in
                  Texas are now including payment of county Domestic Relations
                  Office fees and court registry fees as part of the “ordered fees and
                  costs” specified in an order or writ of withholding for child support.
                  Although that may appear permissible within the statutory language




Tex. S.J. Res. 9,77th   Leg., R.S. (2001).
The Honorable    Toby Goodman      - Page 4         (JC-0346)




                of Section 158.103(3), do such fees [and costs] conform            to the
                intention of the constitutional authorization . . . ?

Id. at 2. We base our analysis on this information.

         This opinion addresses only whether a statute that permits a court to include various
attorney’s fees and costs in an income-withholding      order comports with article XVI, section 28 of
the Texas Constitution.   It does not consider the validity of any court order. Because you describe
what you indicate are current court practices, your inquiries may be read to ask this office to
determine the validity of income-withholding      orders themselves. The Attorney General will not
issue an opinion that reviews a specific judicial order. See Tex. Att’y Gen. LO-93-74, at 3 (stating
that Attorney General will not issue opinion “that is in effect an appeal of a judicial [order]” or that
construes court order); see also Tex. Att’y Gen. Op. No. JC-0094 (1999) at 1,4 (presuming, to avoid
construing court order, that no relevant court order is in effect). Moreover, this office’s opinion does
not bind a court. See Tex. Att’y Gen. Op. No. JC-0094 (1999) at 4.

         The answers to all of your questions depend upon the meaning of the phrase “enforcement
of court-ordered child support payments” in article XVI, section 28 of the constitution. On its face,
article XVI, section 28 permits garnishment for the “enforcement of court-ordered child support
payments.” See TEX. CONST. art. XVI, 5 28. Article XVI, section 28 does not define the phrase.
See id. Words used in the constitution are to be interpreted consistently with their common
meanings. See Leander Indep. Sch. Dist. v. Cedar Park Water Supply Corp., 479 S.W.2d 908,912
(Tex. 1972) (stating that words used in constitution “are to be interpreted as the people generally
understood them”); see also State ex rel. Angelini v. Hardberger, 932 S.W.2d 489,493 (Tex. 1996)
(citing Leander Indep. Sch. Dist.).

         Courts have construed the phrase “child support payments” to encompass attorney’s fees and
court costs that “are incidental to and a part of’ enforcing a child-support obligation. Exparte Binse,
932 S.W.2d 619,621 (Tex. App.-Houston [ 14thDist.11996, nowrit); Exparte Wagner, 905 S.W.2d
799, 803 (Tex. App.-Houston          [ 14th Dist.] 1995, no writ) (and cases cited therein); Roosth v.
Daggett, 869 S. W.2d 634,636 (Tex. App.-Houston [ 14th Dist.] 1994, no writ). Attorney’s fees and
costs incurred to collect a child-support arrearage are essential to enforce the obligation. See Tamez,
822 S.W.2d at 691; Exparte Wagner, 905 S.W.2d at 803; seealsoIn re Clark, 977 S.W.2d 152,157
(Tex. App.-Houston      [ 14th Dist.] 1998, no writ) (stating that “case law suggests that attorney’s fees
incurred in the enforcement of child support are also ‘arrearages’ because they are ‘incident to and
a part of the child support obligation”‘); In re StriegZer, 915 S.W.2d 629, 642-43 (Tex.
App.-Amarillo     1996, writ denied) (discussing Tamez and citing Exparte Helms, 259 S.W.2d 184,
188 (Tex. 1953); Exparte Wagner, 905 S.W.2d at 803). We turn now to your questions.

         We conclude, to answer your first question, that to the extent a statute perrnits a court to
include in an order for income withholding attorney’s fees and costs associated with establishing a
child-support obligation, the statute runs afoul of article XVI, section 28 of the constitution. Article
XVI, section 28 excepts from the general prohibition on garnishment the “enforcement” of a child-
The Honorable   Toby Goodman       - Page 5           (~~-0346)




support obligation.    Establishing a child-support obligation is not a component of enforcing an
existing order. Thus, only attorney’s fees and costs necessarily incurred to enforce an existing child-
support obligation may be collected through income withholding, not those incurred to create a new
obligation.   Attorney’s fees and costs that are not incurred to enforce an existing child-support
obligation are not within the exception and may not be included in an income-withholding         order.
See Roosth, 869 S. W.2d at 637 (determining that fees that “arise from a joint divorce proceeding and
suit affecting the parent-child relationship” were not incurred to enforce child-support obligation);
In re Clark, 977 S. W.2d at 157 (stating that attorney’s fees incurred in enforcing custody obligation
were not incurred in child-support enforcement action). Sections 15 8.102 and 15 8.103 of the Family
Code must be construed to permit withholding income to pay only those attorney’s fees and costs
necessary to collect a child-support arrearage.

         To answer your second question, we conclude that, consistently with article XVI, section 28
of the constitution, a statute may permit including attorney’s fees necessarily incurred to enforce an
existing child-support obligation in an income-withholding      order. The court determines, in any
particular enforcement action, whether and what portion of attorney’s fees were necessarily incurred
in connection with the action.

        To answer your final question,      we conclude that, consistently with article XVI, section 28
of the constitution, a statute may permit    including in an order for income withholding costs “for the
services of Domestic Relations Offices      and court registries” if the court determines that the costs are
necessary incidents of the enforcement       action.
The Honorable   Toby Goodman       - Page 6       (~~-0346)




                                        SUMMARY

                         A statute constitutionally may not permit a court to order
                income withholding to pay attorney’s fees and costs associated with
                estabzishing a child-support obligation. See TEX. CONST. art. XVI,
                8 28. On the other hand, under case law construing article XVI,
                section 28 of the Texas Constitution, a statute that permits a court to
                include in an order for income withholding attorney’s fees incurred
                to enforce an existing child-support obligation comports with article
                XVI, section 28 of the constitution. See Tamez v. Tamez, 822 S. W.2d
                688,691 (Tex. App.-Corpus Christi 1991, writ denied). Likewise, a
                statute may, consistently with article XVI, section 28, permit a court
                to include certain costs, such as fees charged for the services of
                domestic relations offices and court registries, in an income-
                withholding    order if the court determines that the costs were
                necessarily incurred to enforce an existing child-support obligation.




                                               JOHN     CORNYN
                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
