 c   -.-...




                       The Attorney                General of Texas
                                            March 19, 1981
MARK WHITE
Attorney General

                   Honorable Patricia A. Elliott                 Opinion No. k3+366
                   Criminal District Attorney
                   Taylor County Courthouse                      Re: Collection of fees from city,
                   Abilene, Texas 79602                          school district, and water district
                                                                 for filing abstract of judgment

                   Dear Ms. Elliott:

                           When a plaintiff recovers a favorable judgment in a suit for the
                   collection of~delinquent taxes, he may place a lien upon the property of the
                   judgment debtor by securing an abstract of juclgment, see article 5447,
                   V.T.C.S., and by filing it in the real property records in the office of the
                   county clerk of the county in which the property is located. The property
                   thereby becomes encumbered in favor of the judgment creditor.       You have
                   asked whether the city of Abilene, the Abilene Independent School District,
                   and the West Central Texas Municipal Water District are liable for the
                   payment of the $3.00 fee charged by the Taylor County clerk for recording
                   abstracts of judgment The taxing authorities assert that this fee is included
                   among the court costs mandated by article 39304 V.T.C.S., and, therefore,
                   that article 7297, V.T.C.S., exempts them from having to pay it.

                         Article 5447, V.T.C.S.;provides     that:

                                   Each clerk of a court, when the person in whose
                               favor a judgment was rendered, his agent, attorney or
                               assignee, applies therefor, shall make out. . . and
                               deliver to such applicant upon the payment of the fee
                               allowed by law, an abstract of such judgment . . .

                   Statutory authority for the. $3.00 fee charged by the county clerk for
                   recording abstracts of judgment in the real property records of the county is
                   conferred by article 3930(2)(a), V.T.C.S.

                         Article 7297, V.T.C.S., provides that district or county attorneys   shall:

                               . . . institute suit in the name of the State for
                               recovery of. . . taxes due and unpaid on unrendered
                               personal property; and in all suits where juaments
                               are obtained under this law, theperson   owning the
                               property on which there are taxes due. . . shall be




                                                    n.     982
.   -


        Honorable Patricia A. Elliott - Page Two




                     liable for all costs. The State and county shall be exempt from
                     liability for any costs growing out of such action. (Emphasis
                     added).

              This exemption also applies to school districts and municipal corporations     which
        are authorized to levy and collect their own taxes. V.T.C.S. article 1060a.

              Article 39304 V.T.C.S., sets forth various fees to be charged by county clerks
        and clerks of county courts for services rendered in causes of action on the docket of
        the county court

              It is well established that article 7297 exempts the aforementioned          taxing
        authorities from liability for payment of court costs In suits for the collection of
        delinquent taxes. Nacogdoches Independent School District v. McKinney, 513 S.W. 2d 5
        (Tex. 1974); Electra Independent School District v. W.T. Wsggoner Estate, 168 S.W. 26
        645 (Tex. 1943); City of Houston v. McCarthy, 371 S.W. 2d 587 (Tex. Civ. App. -
        Houston 1963, writ reM n.r.e.1; South Lake Independent School District v. Easterling
        142 S.W. 2d 237 (Tex. Civ. App. -Beaumont 1940, writ rePdX The Texas Supremd
        Court has recently held that this exemption also applies to court costs arising in a bill
        of discovery suit initiated as an aid to the enforcement of a prior delinquent tax
        judgment    State v. U.T.L. Aeronautics, Inc., 590 S.W. 2d 120 (Tex. 1979). In that case,
        the court observed that:

                     It is our opinion that the State’s action grows out of and is
                     grounded upon its judgment in the prior suit for taxes and
                     relates solely to the enforcement of that judgment. But for the
                     prior juement,    there would be no basis for the State’s bill of
                     discovery suit.

        590   S.W. 2d at 12L

               It is urged ln an accompanying brief that the need for filing sn abstract of
        judgment in the records of the county clerk also exists solely by virtue of the prior tax
        judgment In other words, but for the judgment In the delinquent tax suit, there would
        be no basis for securing and filing an abstract of juament     in order to encumber the
        judgment debtor’s property. Accordingly, the recording fee - which, it is contended,
        is included among the costs to be taxed upon the initial flllng of the suit under article
        3930b -     is a cost which ‘grows out of” the cause of action within the meaning of
        article 7297. The quoted passage from State v. U.T.L.~Aeronautlcs, Inc., s&ra, is
        relied upon as authority for this proposition.

               In our opinion, however, this argument is without merit. Article 3930b neither,
        explicitly nor, we think, implicitly provides that a fee charged by a county clerk for
        recording an abstract of judgment in the county records is to be included among the
        costs to be taxed upon the initial filing of a suit for the collection of delinquent taxes.
        See section 2(a). We do not think the legislature Intended for the article 7297
        exemption to spply to fees for services performed during the course of a taxing
        authority% efforts to implement the post-judgment enforcement option of placing a




                                                   p.   983
.   -0



                                                      .      .




         Honorable Patricia   A. Elliott   - Page Three




         lien on a judgment debtor’s property through the filing of an abstract       of judgment in
         the county records. See Attorney General Opinion WW-658 (1959).

                State v. U.T.L. Aeronautics, Inc., supra, does not compel a different conclusion.
         That case merely held that the costs arismg out of a bill of discovery suit brought by
         the state to determine whether a corporation had sufficient property to satisfy a prior
         delinquent tax judgment related solely to the enforcement        of that judgment and
         therefore grew out of the judgment within the meaning of article 7297. It furnishes no
         authority for an agument       regarding fees involved in exercising a post-judgment
         enforcement option which does not involve litigation.

                We therefore conclude that the fee charged by the Taylor County clerk for
         recording abstracts of judgment in the county records is not part of the “costs growing
         out of” the original delinquent tax suit within the meaning of article 7297, V.T.C.S.,
         and, accordingly, that the three aforementioned     taxing authorities are not exempt
         from liability for payment of it.

                                                SUMMARY

                        Article 7297, V.T.C.S., does not exempt the city of Abilene,
                    the Abilene Independent School District, and the West Central
                    Texas Municipal Water District from liability for payment of
                    the fee charged by the Taylor County clerk for recording
                    abstracts   of juc$gment in delinquent tax suits in the real
                    property records of Taylor County.

                                                          Very truly your%



                                                          MARK      WHITE
                                                          Attorney General of Texas

         JOHN W. FAINTER, JR.
         First Assistant Attorney General

         RICHARD E.GRAY III
         Executive Assistant Attorney General

         Prepared by Jon Bible
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE

         Susan L. Garrison, Chairman
         James Allison
         Jon Bible
         Rick Gilpin




                                                    p. 984
