                            QBffice
                                  of tip Bttornep&neral
                                          %tate of Qexas
DAN MORALES
 Al-rORNF.Y
        GENERAL                           November 20.1995

      Mr. KennethH. Ashworth                                 Opiion No. DM-366
      Commissioner
      Texas Higher Education CoordinatingBoard               Kc Whether a duly recorded
      P.O. Box 12788                                         abstract of a valid, nondormant, and
      Austin, Texas 78711-2788                               urdschged judgment may consti-
                                                             tute (1) a cloud on the judgment
                                                             debtor’s title to homestead propetty
                                                             located in the county where the
                                                             abstract is recorded and (2) a slander
                                                             of the judgment debtor’s homestead
                                                             title (RQ-784)

      Dear Mr. Ashwolth:

              You have asked us whether the Texas Higher Education Coordinating Board must
      issue a partial release of a student loan judgment hen on real property that a judgment
      debtor cleims as homestead. You cite the case of Tbrrcnt w             v. Miller, 833 S.W.Zd
      666 (Tar. App.-Bastland 1992, writ denied), as cause for your concern that a judgment
      lien that is not partially released as to the debtor’s claimed homestead may cast a cloud on
      the debtor’s title and that a judgment creditor’s refusal to release the lien as to the claimed
      homestead may wnstitute a slander of the debtor’s title. We therefore       understand   you to
      ask whether a duly recorded abstract of a valid, nondormant, and undischargedjudgment
      may constitute (1) a cloud on the judgment debtor’s title to homestead property located in
      the wunty where the abstract is recorded and (2) a slander of the judgment debtor’s
      homestead title. Before turning our attention to the T-t&m&           case, we willreview the
      nature of the judgment lien and the effect it has on a homestead.

             The judgment hen is a creature of statute. 04 Sfufe Bunk v. Bailey, 214 S.W.2d
      901, 903 (Tex. Civ. App.-Amarillo 1948, writ refd). Section 52.001 of the Property
      Code establishes the hen as follows:
                     Except as provided by Section 52.0011, [which dealswith the
                 establishment of a judgment lien pending appeal,] a first or
                 subsequent abstract of judgment, when it is recorded and indexed in
                 accordance with this chapter, if the judgment is not then dotmant,
                 wnstitutes a lien on the real property of the defendant located in the
                 county in which the abstract is recorded and indexed, inchniing real
                 property acquired afler such recording and indexing.
Mr.KennethH.Ashworth - Page2            (DM-366)




See also Prop. Code 4 52.003 (abstract must show names of parties; defendant’s birth
date and driver’s license number if available; case docket number under which judgment
was rendered; defendant’s address if shown in suit, or nature of citation and date and place
of service; date of rendition of judgment; amount for which judgment was rendered and
balance due; amount of balance due for child support arrearage; and judgment interest
rate).

        The homestead is protected by wnstitutional and statutory provisions. Section 50
of article KVJ of the Texas Constitution protects the homestead from forced sale for the
payment of any debt other than for purchase money, taxes on the homestead, or labor and
materials used in improving the homestead. Section 50 also makes void any wmmch~I
hen against the homestead other than for purchase money or home improvements. If the
election held on November 7. 1995, results in the adoption of the Seventy-fourth
Legislature’s Senate Joint Resolution No. 46 (which result appears probable’). section 50
will be amended to add to the kinds of debts far which forced sale and valid hens are
permitted (1) an owehy of partition resulting gem a division or award of the homestead in
a divorce proceeding and (2) n&axing of a lien against the homestead. See S.J. J&x 46,
74th Leg., RS., 1995 Ten. Sess. Law Serv. pamphlet 8, at A-10. Section 41.001 of the
Property Code is the statutory wunterpart to article KV& section 50. See Prop. Code
0 41.001, arnettai?~by Act of May 8, 1995, 74th Leg., RS.. ch. 121, art. 1. 1995 Tex.
sess. Law serv. 933.

        The wurts of this state have held that “a judgment, though duly abstracted, never
fixes a lien on the homestead so long as it remains a homestead.” How        v. Lovr. 494
S.W.2d 591, 593-94 (Ten. Cii. App.-Dallas), wrif refd n.r.e. per curiam, 499 S.W.2d
295 (Tex. 1973); acco&Eng&mkr Co. v. Kenne@, 424 S.W.Zd 305, 309 (Tex. Civ.
App.-Dallas), writ ref’d n.r.e. per curiwn, 428 S.W.2d 806 (Tcx. 1968); Amkrson v.
Bum&k, 245 S.W.2d 318, 322-23 (Tex. Civ. App.-Eastland 1951, writ refd n.r.e.);
Commercial Sec. Co. v. Thompson,239 S.W.Zd 911. 915 (Tar. Cii. App.-Fott Worth
1951, no writ); Harms v. Ehlers, 179 S.W.2d 582,583 (fen. Civ. App.-Austin 1944, writ
refd); Hughes v. Groshart, 150 S.W.Zd 827, 829 (Ten. CN. App.-Amid0              1941. no
writ).2 Rather, ‘a recorded judgment hangs over the defendant, and by virtue of it a hen
attaches to all his real property, in the county where the judgment is recorded, which he

        “Ihe Aasttn
                  Americadlatesman qmied on Nownber 8.1995. that with ninely~ght puwd
cd tbc prakcts reporting, the mtc was 363,363 for aad 343,473 ageist tk pmposed ammdmant.
Aman~ent Resulu, AumtN AM.-~ATESW. NW. 8.1995, It Al 1.

        rThamuatypmfKsition*fmmdinEwcetInc.        v. Gwdes,815 S.W.2d35o~ex. App.-dklsin
1991. no tit): The dcbtork homesteadis not exanpl ffom the pzfcckd ljudgmcnt]lien; rotha, the
homesteadis exemptfromany seizureattanptingto enforcethe pcrfcckd lb.” Id. at 352. This ar&sis
in Exacet Inc. has hccn criticized as being %ntcnablc amslihltionally and pradatidly.”
JosephW.McKnighs FarnIb law: Husbmd and W’t/, 45 SW. L.1. 1831, 1852 (1992) (foOtMS
OlUiNCd).




                                       P.   1983
Mr. Kenneth H. Ashworth - Page 3       0%366        )




owns at the time the judgment is recorded, or acquires there&er, and which is subject to
execution, or becomes subject to execution during the life of the judgment record.”
Marks v. Bell, 31 SW. 699, 702 (Tex. CN. App. 1895, writ refd); accord Lewis v.
Brown, 321 S.W.Zd313,317 (Xx. Civ. App.-Fort Worth 1959, writ refd n.r.e.); IVUMJ
v. SlinwM, 140 S.W.Zd 497. 499 (Tex. CN. App.-Dallas 1940, writ refd) (“A duly
recorded judgment hen against the owner of land which is exempt will, however, attach to
the property when it ceases to be a homestead, if. at such time, it is still owned by the
judgment debtor.“).

        A judgment hen that is perfected while the property is a homestead is not void and
so is unlike an attempted non-purchase-money,nonimprovementwmmctual lien, which is
void and never attaches even atIer debtor abandons the property as homestead. See
Harrison v. First NOI‘I Bank, 224 SW. 269.276 (Tex. Civ. App.-Fort Worth 1920, no
writ) (on motion for rehearing) (judgment lien does not fall within provision of section 50
of article XVI that “[n]o mortgage, trust deed, or other hen on the homestead shag ever
be valid, except for the purchase money therefor, or improvementsmade thereon.“). “The
jjudgment] lien is created when the propetty becomes subject to it, and not until then, and
hence is not affected by any homestead right. The hen arises as it would ifthe record were
made on the day of abandonment of homestead.” Gkmrcock v. Stirrger, 33 S.W. 677.
678 (Tex. Civ. App. 1895, writ refd).

        Thus, a judgment lien may attach to the debtor’s property either befbre the
propaty becomes a homestead or when the property ceases to be a homestead. A
judgment hen that exists before the property’s subsequent impression with a homestead is
not atkted by the establishmentof the homestead,the homestead interest is subject to the
pm-existing lien. See ImvoodNotih Homeowners‘Ass ‘n v. Harriis,736 S.W.2d 632,635
(Tex. 1987); Johnson v. Prosper State Bank, 125 S.W.2d 707, 711 (Tex. Civ. App.-
Dallas 1939), afd, 138 S.W.2d 1117 (Ten. 1940).

        Additionally, a judgment debtor may transfer the debtor’s homestead to another
person free of any judgment liens that were perfected a&r the propetty became impressed
with the homestead interest, and the purchaser has good title as against such creditors.
Gill v. Quinn, 613 S.W.Zd 324, 325 (Tex. Civ. App.-Eastland 1981. no writ). The
proceeds of a voluntary sale of a homestead are statutorily exempt from seizure by
creditors for sbr months after the date of the sale. Prop. Code 8 41.001(c). This six-
month grace period was enacted to pennit the seller a reasonable opportunity to use the
proceeds to purchase a new homestead without jeopardy. Tqlor v. Marty Bras. Nursery,
Inc., 777 S.W.2d 568, 570 (Tex. App.-San Antonio 1989, no writ). The legislature
intended the statutory exemption of homestead sale proceeds to protect only the right to
acquire a new homestead, not to protect the proceeds themselves. Gaa@vv. Firsr Nat ‘I
&mk, 283 S.W. 277 280 (Tar. Civ. App.-Beaumont 1926, no writ). Therefore, the
exemption terminates upon the debtor’s acquisition of a new homestead or at the end of
six months, whichever occurs first. England v. Feakral Lkpsiir Ins. Corp. (In re
England), 975 F.2d 1168,1175 (5th Cii. 1992).



                                        P.   1984
Mr.KemmtbH.Ashworth - Page4              (DM-3663




        The court in Tmcmt Barrk v. Miller held that although a duly recorded and
indexed abstract of judgment does not operate on an existing homestead, it may cast a
cloud on the debtor’s title to the homestead. 833 S.W.2d at 667. A cloud on title is
“‘[a]n outstandii claim or encumbrancewhich, if valid, would atfect or impair the title of
the owner of a particular estate, and on its face has the effect, but can be shown by
wrbinsic proof to be invahd or inapplicableto the estate in question.‘” Best Jm. Co. v.
ParkhilI, 429 S.W.2d 531, 534 (Tex. Civ. App.-Corpus Christi 1968, writ dism’d)
(quoting BLACK’Uw S DICTIONARY       322 (4th ed. 1951)). Such a cloud results from two
hctors: (1) the recording and indexing of the abstract and (2) the lack of a wnclusivc
determi&on that the debtor’s property is homestead.

        To have the cloud of an abstract of judgment removed, a plaintitTmust plead and
prove at least a reasonable apprehensionof injury caused by the cloud. See 61 TEX.JUR.
31, Quieting Title andDetermining Adverse Claims 5 9 (1988). “The alleged cloud must
be capable of endangering the owner’s title or impeding its free and unencumbered
alienation.” Id. 8 12 (footnote omitted). Therefore, no suit to remove the cloud of an
abstract of judgment will lie in the absence of the judgment creditor’s seizure of the
property or the judgment debtor’s attempt to sell the prope@, which attempt was
thwarted by the abstract of judgment. See Mauro v. Lmlies, 386 S.W.2d 825, 826-27
(TaC. CN. App.-Beaumont 1964, no writ).

        A cloud on title does not necessarily give rise to a cause of action for slander of
title. A plainthf in an action for slander of title must plead and prove that the defendant
uttered and published false and malicious words in disparagement of some interest the
plaintiff had in property and that the plaintitTs&red special damages as a result. Srovull
v. Texus Co., 262 S.W. 152,153 (Tex. CN. App.-Fort Worth 1924, writ refd).” Falsity,
therefore, is an element of the plaintiffs case: “‘The statement claimed as slanderous must
be false. Jfthere be such a flaw in the title as the defendant asserted, no action lies. And it
is for the plaintiff to prove it false, not for the defendant to prove it true.‘” Funt v.
Sullivrm, 152 S.W. 515, 523 (Tex. Civ. App.-San Antonio 1912, writ refd) (quoting
MARTINL. NEWELL, THE LAW OF DEFAMATION,                   m      & SLANDER      IN CIVILAND
~~~A~E~A~ADMDJ~~I~LEDIN~CO~RT~~FTHEUNITEDSTA~~FAMER~~A
5 S,at208(1890)).

      Even without any fmtbcr action by the judgment creditor, the judgment debtor’s               .
homestead frequently becomes unmarketable because of the filing of an abstract of
judgment and the unascertained homestead status of the property:
           While homestead property will pass free and clear of such judgments,
           the homestead status is not readily determinableby the deed records.

        s&gardingspcial damages,the plaintiffmustplead and pmvc the loss of a spccitk sale of tk
grty    resultingfromthe diqaragemcnt. Eg., A. H. &lo Corp.v. smrdcrs,632 S.W.2d 145,146 (Tcx.




                                         P.   1985
Mr. KennethH. Ashworth - Page 5            (DM-366)




          The buyer must often rely solely on the homeowner’sassurances that
          the property is homestead.
              Assuming that the homestead status is, at some point in time,
          established, this status may terminate before the homestead owner
          conveys the property and at that time the judgment lien will
          immediately attach. Most buyers are not willing to purchase land in
          which the seller’stitle is uncertain. This has the undesirable e&t of
          rendering the title to his homestead unmarketable.
SuzameM. Schwarz,Comment,          Ju&ment Liensmdthe          T~urcHomestead, 40B~no~
L.RM.641,643(1988).

        Tmant Bank v. Miller provides an example of the adverse ekt       an abstract of
judgment has on the marketability of a homestead. In that case, the Millers lost a sale of
their homestead when the title company relked to issue title insurance without Tarrant
Bank’s partial release of its judgment lien as to the homestead’and the bank refused to
exewte the partial  release. 833 S.W.2d at 667. The ttial court had awarded damages for
slander of title, rmdered a declaratory judgment that the bank’s judgment lien was not
enforceable against the debtors’ homestead, and awarded attorney fees. Id.5 The bank


      %c awl afsppda in.Uaamv. &v&s, 386 S.W.2d 825, 827 (Xx. Civ. AppBmnmont
1%4,wwrit),notedthst’[i]tisdoubtfulthtaUUe~waJd~tiUe~                        upona*of
pmputywhemajadgmcnthadhwnabshUed.”           AhriefadmiNedtoouroffleinthismmerexplaha
whyUUecmnpankwillnotissuebmance         inawhasi~

           ~heprrmiuMfor...[a]tiUepolicyd~                 usuallycostinthelmn&eds
          d dollars.. . . The title ampany will not tisk issuing a policy with . . . [a
          jlKlgmult]limoflrwN.t. Thcpomid~oflitigationsnduroc*tedawl
          whelhersucwwidornotfar~uwpmmiom-                              risnotalst
          e&c&. ThebasicrasonistbatifliUgatiwensues,aadofanmieitwouldbe
          a@lStthetiUCCFOlllF#Q!,theitrucd llonluddslualsmlissaeoffact             Tk.
          titlecompanymustaaasarilydepxbdonthecoopemtionaadteshotyofthe
           homeownerorthefamiiyandtheycouldbedeadnothenvkbetmav&ble.
lztter from John A. Daniek, Esq., Daaids & Daniel& Attorneys at law, Saa Aatonio, Texas
(Apr.7.1995) (on file with thi’oftlco).




                                            P.   1986
Mr. Kmneth H. Ashworth - Page 6           (~~-366)




appealed only from the award of damages and attorney fees in the judgment and not from
the declaration itself Id.

         A certain ambiguity in the Tmak &I& case apparently accounts for your wncern
that a judgment creditor may be gable for slender of title merely for retking to execute a
partial release of judgment hen as to property the debtor claims to be homestead. The
opinion in Tmant Bunk does not clearly indicate whether the scope of the appeal included
liability issues or was limited to issues relating to damages and attorney fees, The court of
appeals aflirmed most of the trial court’s award of damages and attorney fees. Id. at 669,
The opinion indicates that the bank “appeal[ed] the trial court’s award of S28.086.50 in
damages and attorney’s fees wmpkining: , . . that the evidence was legally and factually
insu5cient to support the judgment.” Id. at 667. Later in the opinion, the wurt stated
that the bank’s second point of error was that “the trial court erred in granting judgment
because the evidence was IegsJly and Mually insuf6cient.” Id. at 668 (footnotes
omitted). The point of error may have challenged(or the wurt may have interpreted it as
challenging)the sufiiciency of the evidence in support of the lower wurt’s findings as to
either (1) both liabii and damages (and attorney fees) or (2) only damages (and attorney
fees).

       An article in HOUSIOII
                           Lawyer supports the view that Tmanf Bank held that a
mere dual to release a judgment lien as to a putpotted homestead may subject the
creditor to liability for slander of title. The authors stated: ‘The lesson to be learned
[from Tmunf Bank] is that if there is no question as to whether the property at issue is
the judgment debtor’s homestead, the judgment creditor should not rekse to give the
judgment debtor a partial release of judgment lien as to the homestead property.”
S. Bradley Todes & Rosa S. Silbert, Judgment Lfens in Texps, 31 HOUS.UW. 28. 30
(May-June 1994).

        We would disagree that the decision in T-t       Bank can be interpretedas holding
that the creditor is obligated to release the “lien”on demand. Such an interpretation of the
case would depend on the unwarrantedaJsumptionthatthecape~Mappealofthetrial
wurt’s findings on liabiity issues. The procedural context of that case requires that it be
interpreted as an appeal only from the damages issues. The eponymous bank did not
timely respond to the plaintiffs’request for admissions; wnsquently, all the requested
admissions were deemed admitted. 833 S.W.Zdat 668. The bank also refused to produce
documents and failed to answer interrogatories, so the trial court sanctioned the bank by
entering a default judgment in favor of the plaintiffs on all issues except the amount of
damages. Id: The trialwurt then held a trial to determine damages and attorney fees. Id.
 at 668-69. “&]iability may be determined in a dethult judgment without evidetttiary
 support as a sanction for failure to provide discovety, and there need only be an
 evidemiaty hearing to establish the amount of plaintiffs damages.” Brandty v. Ever, 662
 S.W.Zd 752, 758 (Tex. App.-San Antonio 1983) wril refd n.r.e. per nrriam, 677
 S.W.2d 503 (Tex. 1984). Accordingly, because the default judgment was a discovery
 sanction, the trial court could enter a judgment of liability without evidentisry support.


                                         P.   1987
Mr. KennethH. Ashworth - Page 7           (DM-366)




Therdore, the sufficiency of the evidence to support the liability finding was not
reviewable on appeal.

        The Twang Bunk opinion shows that the court of appeals properly refkainedfrom
reviewing the evidence on liabiity issues. The opinion does not mention the habiity
element of falsity. Finding that “[tlhere [wa]s some evidenceto support the [trial] wurt’s
award of actual and exemplary damages,”the court of appeals noted that “[t]he [trial]
court found that the Bank’s failure to give the release was intentional, wiltid, and
malicious.” 833 S.W.2d at 668. The adjectives“intentional,wilful, and malicious”appear
to relate to the award of punitive damages rather than to the malice element of the prima
facie case of slander of title. Malice as an element of the prima facie case “should mean
that the act or refusal was deliberate conduct without reasonable cause,” whereas malice
to support punitive damages “should mean actual malice, thatis, ill will, bad or evil
motive, or such gross indiibrence to or reckless disregard of the rights of others as will
amount to a wiltid or wanton act.” Ki&v. Hogge& 331 S.W.2d 515. 518 (Tex. CN.
App.-San Antonio 1960, writ refd n.r.e.). The T-f          Bank court slso concluded that
the evidence supported the trial court’s award of attorney fees for trial but not for appeal,
as there was no evidence as to the amount of fees that would be reasonable on appeal.
833 S.W.2d at 669.

       All these circumstances wmpel a wnclusion that the wurt in T-i            Bank
reviewed the evidence to detemtine whether it supported only the ttial wutt*s award of
damages and attorney fees, not whether it also supported the Sndmg of iiabiity. Having
determined that Tmzmf Bank is not dispositive of your question. we now consider other
caselawtofindananswer.

        One variety of slander of title involves a failure to release or disclaim a recorded
claimed, but not actual, interest in property. “Th[e Texas Supreme] Court has established
that a cause of action to recover damages for the failure to release a putPorted, though not
actual, property interest is a cause of action for slander of title.” Wlis v. Wa&p, 656
S.W.2d 902, 905 (Tat. 1983) (citations omitted). Therefore, a recorded document that
creates the appearance of a claim that is not actual provides the requisite fhlsity and, if the
other elements are present, will support an action for slander of title. See id. (iiolving
faihxe to release claim of right of tirst refusal when right had already expired; damages
awarded for failure to release claim of right); Reaugh v. McCollum &&ration Co., 163
 S.W.Zd 620,621 (far. 1942) (involvingfailure to release claim under recorded lease that
was not signed by all owners and that parties understood would not be binding until signed
 and acknowledged by all owners); Kidi, 331 S.W.2d at 517 (involving failure to release
recorded oil and gas lease that had expired).

        A potential lien in a homestead created by a duly recorded and indexed abstract of
a valid, nondormant, and undischarged judgment is an actual interest and thus is diiin-
guishable from the claimed but not actual interests that are subject to the rule recognized
in Ellis v. Wal&op. The proper recording of an abstract of a valid, nondotmant, and



                                          P.   1988
,Mr. Kenneth H. Ashworth - Page 8        (DM-366)




undischarged judgment is in no sense false and therefore cannot support an essential
element of a case for disparagementof title to the homestead. See Leslie v. Westem Steel
Co., 202 F. Supp. 27.28 (S.D. Tex. 1962); see also Wesfmanv. James B. Clow & Sons,
38 F.2d 124 (W.D. Tex. 1930) (“The abstract of judgment does not of itself assert any
claim of lien upon homestead property.“). Thus, the court in Commercial Se&ties Co.
v. ~sotr,239S.W.2d911.915(Tex.Civ.App.-FortWorth                  1951,nowrit),cotrectly
noted that if a “judgment ha[s] not been discharged, there [i]s no basis for damages for
tiling the abstract of it.” We the&ore are of the opinionthata duly recorded abstract of a
valid, nondotmant, and undischargedjudgment cannot in itself wnstitute a slander of title
to the judgment debtor’s homestead. See 67 Tex. Jur. 3d S&n&r of Title 5 2 (1989)
(mere filing of abstract of judgment ordinarily does not wnstitute ground for recovery of
dama&.

       First NaiionalBank v. Moore, 7 S.WSd 145 (Tkx. CN. App.-San Antonio 1928,
writ denied), might on cursory reading appear to wntradict our wnclusion that a duly
recorded abstract of a valid, nondormant, and undischarged judgment cannot in itself
wnstitute a slander of title to the judgment debtor’s homestead. Jn that case the judgment
crediton refirsed to execute a partial release of an abstract of judgment against
J. P. Moore as to property that Moore and his wife, Pearl F. Moore, claimed to be their
homestead and Mrs. Moore’s separate property. Id. at 146. The facts stated in that case
do not indicate that the abstract of judgment at issue was false in MY way, yet the wutt
found on motion for rehearing that there was evidence supporting the trial wutt’s award
of damages against the creditors for slander of title. Id. at 147.

        Car&d reading will show, however, that the actionable false statements in that
case were made outside the abstract of judgment. The wurt noted that the judgment
creditors knew facts that made their judgment lien inapplicableto the judgment debtor’s
wife’s property-namely, that the subject propetty was the debtor’s wife’s separate
property, while the judgment was against only the husband-but desired to force the
debtor and his wife to pay off the judgment by persisting in claiming that their recorded
abstract of judgment did impose a hen on the debtor’s wife’s land. Id. at 147. The
creditors had continued to resist and assail the debtor’s wife’s claim of homestead end
separate property interests in the land even during the litigation of the case. id. at 146;
they “were asserting a judgment lien on the land,”id., and had “persisted in claimbtga lien
on her property,” id. at 147. The court found that such evidence supported the lower
wurt’s award of damages. Id. Although it is not clear from the opinion what form the
creditors’assertions and claims took, it is clear that the assertions and claims were outside
the abstract of judgment. Therefore, these outside claims, not the filing of the abstract of
judgment itself, gave rise to an action for slander of title.

        The situation you present differs Corn First NationalBank v. Moore. A judgment
creditor’s knowledge of the judgment debtor’s homestead rightdoes not constitute
knowledge that the judgment hen is forever inapplicableto the homestead. Nor does the
creditor’s refusal to release the potential hen created by the abstract of judgment


                                         P.   1989
Mr. Kenneth H. Ashworth - Page 9           (~~-366)




constitute a claim that the creditor has a present lien in the homestead property. Compare
Moore, where the creditors knew that the subject property was the debtor’s wife’s
separate property, while the judgment was against only the husband; in that case the
creditors not only refused to release the judgment “lien” in the wife’s separate property
but also denied that the property was separate and claimed a present lien in it. Id

       For the fore-going reasons, and particularly because a properly recorded and
indexed abstract of II valid, nondormant, and undischarged judgment is not falsein any
way, we do not believe that a court would hold that a mere refbsal to release a potential
judgment lien against the debtor’s homestead is an actionable slander of title. The
homeowner who has been determined by final judgment to be indebted has no right to
demand that the judgment creditor forever relinquish a,valuable potential security created
by statute to assist in the satisfaction of the indebtedness. If a duty of the creditor to
mitigate an impediment to alienation arises at all, it would be at most a duty to disclaim
any present lien in the homestead, not to waive the potential future lien.6

         You also ask whether the Texas Highe-rEducation CoordinatingBoard may, upon
the judgment debtor’s request, voluntarily disclaim any present judgment lien in a
judgment debtor’s homestead. By this question we understand you to ask whether the
board may voluntarily execute, for example, a partial release of “lien”as to the purported
homestead, upon a satisfactory showing (1) that the property is under a contract of sale
that requires the issuance of a policy of title insurance. (2) that the title company requires
 a partial release of lien or other disclaimerof a present lien as a condition to issuance of a
policy on the property. and (3) that the property in &ct has remained the debtor’s
 homestead continuously since the time of fXng of the abstract of judgment. We believe
the board may do so. In order to avoid relinquishingany potential fbture judgment lien in
 the property, however, the board should include provisions on the face of the release of
 lien expressly conditioning the release upon the closing of the specific contemplated sale
 of the property and stating that the release shall be void in the event that the judgment
 debtor ever again acquires an interest in the property.




        ~WCdo net considerhem wbetber,in attain citams~~~, Pjudgmen~cmditormigbthavcr
dutylo disclaimany presentlien to avoid liabilityundersomelhwry olhu lhan slanderof title.




                                          P.   1990
Mr. KennethH. Ashworth - Page 10      Wt-366)




                                SUMMARY
             A duly recorded abstract of a valid, nondormant. and
         undkhaqed judgment may constitute a cloud on the judgment
         debtor’s title to homestead property located in the county where the
         abstract is recorded but cannot in itself wnstitute a slander of the
         judgment debtor’s homestead title.




                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
FvstAasistant AttorneyGeneral

SARAH J. SHIRLEY
Chsir, Opiion Committee

Prepared by JamesB. Pinson
Assistant Attorney General




                                      p.   1991
