Can a Texas county clerk charge a fee to release a judgment paid into court under section 31.008?

Plain-English summary

When someone wins a money judgment but cannot be found, the losing party still owes the money. Section 31.008 of the Civil Practice and Remedies Code gives the debtor a way out: after meeting notice requirements, the debtor can pay the amount owed into the court that rendered the judgment. The clerk holds the money in a trust fund for the missing creditor, and the judge or clerk signs a "recordable release of the judgment" so the debt shows as satisfied. The Harris County District Attorney asked the Attorney General three questions about what the county clerk can charge and do in that process.

On the first question, the Attorney General concluded the clerk could not charge a filing fee for the release. The fees a county clerk may collect for civil cases are set out in section 118.052 of the Local Government Code, broken into filing an original action, filing an action other than an original, and services rendered after judgment. The fee for filing an original action covers all the clerical work of that action, and the section 31.008 procedure is not a new or separate lawsuit, just a step that flows from the original case. The "action other than original" fee is for things like interpleaders or cross-actions that assert a claim, which a section 31.008 release does not. The "services rendered after judgment" fee is limited to specific instruments, such as abstracts of judgment, executions, orders of sale, and writs. And the catch-all fee in section 118.011(c) covers only the clerk's noncourt duties. None of them fit, so no filing fee.

On the second question, the opinion concluded that whether the release gets filed in the court file as well as the real property records was not for the clerk to decide under section 31.008. The statute says only that the release be "recordable"; it neither requires nor forbids filing it in the court file. On the third question, the opinion concluded the county is entitled to the fee in section 117.055 of the Local Government Code, which compensates a county for the accounting and administrative cost of handling trust funds for litigants, because section 31.008 money is a trust fund. But the clerk cannot collect that fee when the funds are first deposited. The expense has to be incurred first, and section 117.055 costs are assessed only after the litigation's outcome, so at deposit there is nothing yet to compensate.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The fee schedules in chapters 117 and 118 of the Local Government Code have been amended many times since 1992, so confirm the current fee provisions before relying on any specific amount or rule mentioned here.

Background and statutory framework

Section 31.008 of the Civil Practice and Remedies Code, enacted by the 72nd Legislature, governs the payment of judgments unclaimed by the prevailing party. It lets a judgment debtor who does not know the location of the judgment creditor pay the amount owed to the court that rendered the judgment, after complying with notice requirements. The court holds the amount, plus interest, in trust for the creditor, and the clerk deposits it in the clerk's trust fund account. Those funds are subject to escheat under chapter 72 of the Property Code, and the clerk may presume they are payable to the judgment creditor unless given a written assignment of the judgment. As part of the payment, the debtor must prepare a recordable release of the judgment, which the judge or clerk then executes on the debtor's behalf and issues to the debtor.

On the filing-fee question, the Attorney General worked through section 118.052 of the Local Government Code, the schedule of fees a county clerk may charge for civil cases. The fee for filing an original action is meant to cover all clerical duties connected with that action; Attorney General Opinion H-754 (1975) had concluded that, apart from specifically enumerated extra fees, a clerk may make only the one-time charge for all services in connection with an original action. Because the section 31.008 procedure is derivative of the original action on the underlying debt, not a separate cause of action, no filing fee applied. The fee for "filing of an action other than original" applies to interpleaders, cross-actions, and similar filings that assert a claim, which a section 31.008 release does not involve. The fee for "services rendered after judgment in an original action" looked closer, but the legislature authorized it only for particular instruments, abstracts of judgment, executions, orders of sale, writs, or other process (section 118.052(1)(C)(i), (ii); see also section 118.123 for similar fees allowed justices of the peace), and a section 31.008 release is not among them. Finally, section 118.011(c) lets the clerk charge reasonable fees for other duties not otherwise covered, but Attorney General Opinion H-43 (1973) had read its predecessor to reach only the noncourt aspects of the clerk's duties. So the clerk could not charge a fee under any of these provisions.

On the recording question, section 31.008 requires only that the release be "recordable" and is silent on filing in the court file, so the opinion concluded it was not the clerk's responsibility under section 31.008 to decide whether the release should be recorded or filed in the court file. The opinion expressly did not address the clerk's duties under other laws or rules of procedure, noting examples such as Local Government Code section 193.004 (the clerk maintains an index of judgments) and Texas Rule of Civil Procedure 25 (the clerk keeps a file docket showing all subsequent proceedings).

On the trust-fund fee, section 117.055 of the Local Government Code compensates a county for accounting and administrative expenses incurred in handling trust funds for the benefit of litigants in civil proceedings. Section 31.008 funds are received on behalf of judgment creditors, are expressly designated as trust funds, are deposited in the clerk's trust fund and the county depository (section 117.052(a)), and are paid out by the clerk, so the county provides handling services and is entitled to the section 117.055 fee. As to timing, Attorney General Opinions JM-1162 (1990) and JM-434 (1986) had concluded that the handling expense must be incurred before costs are assessed under section 117.055, and because that statute assesses costs against the nonprevailing party or a party the court designates, the assessment must await the outcome of the litigation. At the time funds are deposited, the county has not yet incurred any handling expense, so it is not entitled to collect the fee then.

Common questions

Could the county clerk charge a filing fee to release a judgment under section 31.008?
No. The opinion concluded the section 31.008 release was part of the original case, not a new action, and none of the clerk's statutory fee categories in chapter 118 covered it.

Does the release have to go in the court file as well as the property records?
Section 31.008 says only that the release be "recordable." The opinion concluded that deciding whether to file it in the court file was not the clerk's responsibility under section 31.008, and it did not address the clerk's duties under other laws or procedural rules.

Could the county recover anything for handling the money?
Yes. The opinion concluded the county was entitled to the section 117.055 fee for the accounting and administrative cost of handling the trust funds, because section 31.008 money is a trust fund held for litigants.

Could the clerk collect that handling fee when the money was deposited?
No. The opinion concluded the fee could not be collected at deposit, because no handling expense had yet been incurred and section 117.055 costs are assessed only after the litigation's outcome.

Citations

• Civil Practice and Remedies Code § 31.008, subsections (a), (c), (d), (e), (f)
• Local Government Code §§ 118.052, 118.053(a), 118.011(c), 118.123
• Local Government Code §§ 117.055(a), 117.052(a)
• Local Government Code § 193.004
• Property Code chapter 72 (escheat)
• Texas Rule of Civil Procedure 25
• Attorney General Opinions H-754 (1975), H-43 (1973), H-183 (1973), JM-1162 (1990), JM-434 (1986)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0174
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0174.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

October 5, 1992

Honorable Mike Driscoll
Harris County District Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-174

Re: Authority of county clerk to charge fees under section 31.008, Civil Practice and Remedies Code, and related questions (RQ-171)

Dear Mr. Driscoll:

You ask three questions regarding section 31.008 of the Civil Practice and Remedies Code. Section 31.008 was enacted by the 72nd Legislature and governs the payment of judgments unclaimed by the prevailing party. It authorizes a judgment debtor, upon compliance with its notice requirements, to pay to the court rendering a judgment the amount owed under the judgment when the debtor does not know the location of the judgment creditor. Civ. Prac. & Rem. Code § 31.008(a).[1] The amount paid to the court and the interest earned on this amount is held by the court in trust for the judgment creditor and is deposited by the clerk of the court in the clerk's trust fund account. Id. § 31.008(c), (d). The funds held in the clerk's trust fund account are subject to escheat under chapter 72 of the Property Code, and the clerk is entitled to presume that the funds are payable to the judgment creditor unless the clerk is provided a written assignment of the judgment. Id. § 31.008(d), (e). In conjunction with the payment of the judgment, section 31.008 requires the judgment debtor to prepare a "recordable release of the judgment." Id. § 31.008(a). The judge or clerk of the court shall then execute a release of the judgment on behalf of the debtor and issue the release to the debtor. Id.

[1] Section 31.008 defines "judgment debtor" as a party against whom a judgment is rendered and "judgment creditor" as the party in whose favor a judgment has been rendered, whether the party is a plaintiff, counterclaimant, cross-claimant, third party plaintiff, or other judgment creditor. Civ. Prac. & Rem. Code § 31.008(f).

You ask whether a county clerk may, at the time of filing, charge a filing fee for the release of judgment executed pursuant to section 31.008. You also ask whether the release of judgment should be filed in the court file as well as real property records. Finally, you ask whether the county clerk may collect the $5 fee authorized by section 117.055 of the Local Government Code when funds are paid into the clerk's trust fund pursuant to section 31.008.

In your letter requesting this opinion you note that the amount of filing fees a county clerk is entitled to collect is governed by section 118.052 of the Local Government Code. This provision prescribes a schedule for fees a county clerk is elsewhere authorized to charge for services rendered in connection with civil cases in county courts. The fees are divided by subject: "civil court actions," "probate court actions," and "other fees." Local Gov't Code § 118.052. Fees in civil court actions are subcategorized as fees for filing of original actions, for filing of actions other than original, and for services rendered after judgment in original actions. Id. § 118.052(1)(A)-(G). You conclude that none of the subcategories would appear applicable to the execution of a release under section 31.008 of the Civil Practice and Remedies Code. We agree.

The fee collected by a county clerk for filing of an original action under section 118.052 is intended to cover "all clerical duties in connection with an original action filed in a county civil court." Local Gov't Code § 118.053(a). Attorney General Opinion H-754 (1975) concluded that except for additional fees allowed for specifically enumerated matters (which are now encompassed by section 118.052 and sections referenced therein), a county clerk may make only the one-time charge authorized by the predecessor to section 118.053 for the rendition of all services in connection with an original action. The procedure authorized by section 31.008 of the Civil Practice and Remedies Code is not an original or separate cause of action, but is merely derivative of the original action on the underlying debt. Consequently, the clerk may not charge a filing fee under this provision.

The fee for filing an action other than original applies to the filing of each "interpleader, cross action, or action other than an original action." As noted above, we believe the procedure authorized by section 31.008 is derivative of an original cause of action. It does not involve the assertion of a claim against the judgment creditor. Thus, we do not believe this fee is applicable to the procedure outlined in section 31.008.

The title and description of the last fee, "Services Rendered After Judgment in Original Action," would appear to include services of the county clerk rendered in connection with section 31.008. See Local Gov't Code § 118.0545(a) (fee is for services rendered after judgment in an original action filed in county civil court). However, the legislature has authorized the county clerk to collect a fee only with regard to particular legal instruments, specifically, abstracts of judgment, executions, orders of sale, writs or other process. Id. §§ 118.052(1)(C)(i), (ii); see also id. § 118.123 (similar fees allowed justices of the peace). No fee is authorized for post-judgment services rendered pursuant to section 31.008.

You suggest that the clerk may be entitled to a fee under section 118.011 of the Local Government Code, which authorizes the clerk to charge "reasonable fees for performing other duties prescribed or authorized by statute" and for which a fee is not prescribed by subchapter B of chapter 118. Id. § 118.011(c). Attorney General Opinion H-43 (1973) concluded that the statutory predecessor to this provision applied only to the noncourt aspects of the county clerk's official duties and had no application to the clerk's performance of court-related services. Consequently, the county clerk may not charge a fee under section 118.011(c) for services rendered in connection with section 31.008 proceedings.

Your second question is whether the release of judgment obtained pursuant to section 31.008 must be filed in the court file as well as the real property records of the county. Section 31.008 states only that the release be "recordable." It neither requires nor prohibits filing in the court file. We agree with your conclusion that it is not the clerk's responsibility under section 31.008 to determine whether the release should be recorded or filed in the court file. We do not address the clerk's duty to take official action with regard to a section 31.008 release pursuant to other laws or rules of procedure. See, e.g., Local Gov't Code § 193.004 (county clerk shall maintain index of judgments); Tex. R. Civ. P. 25 (clerk shall keep a file docket which must show, inter alia, all subsequent proceedings in a case).

Your final question is in two parts. First, you ask whether the county is entitled to the fee specified in section 117.055 of the Local Government Code to compensate the county for "accounting and administrative expenses incurred in handling trust funds for the benefit of litigants in civil proceedings." Local Gov't Code § 117.055(a). Next, you ask whether the county clerk may collect the fee at the time the funds are deposited in the trust fund.

Funds paid to the court under section 31.008 are received on behalf of judgment creditors and thus are held for the benefit of litigants in civil proceedings. They are expressly designated as trust funds. Civ. Prac. & Rem. Code § 31.008(d); see also Attorney General Opinion H-183 (1973) ("trust funds" for purposes of statutory predecessor to section 117.055 includes money deposited in court to satisfy or await result of a legal proceeding). They are deposited in the clerk's trust fund and are paid out by the clerk. Civ. Prac. & Rem. Code § 31.008(d). Trust funds are deposited in the county depository. Local Gov't Code § 117.052(a). Thus, the county provides services in the handling of funds paid pursuant to section 31.008 for which it is likely to incur expenses. The county therefore is entitled to the fee authorized by section 117.055 to compensate the county for accounting or administrative expenses so incurred.

With respect to the time at which the fee may be collected, Attorney General Opinions JM-1162 (1990) and JM-434 (1986) concluded that the expense of handling a trust fund must have been incurred prior to the assessment of costs under section 117.055. Because section 117.055 provides that costs are assessed against either the nonprevailing party or the party designated by the court, the assessment must necessarily await the outcome of the litigation. Attorney General Opinion JM-434 at 3. In our opinion, the county will not, at the time of deposit of funds in the county clerk's trust fund pursuant to section 31.008, have incurred any expense in connection with the handling of the funds. Consequently, it will not be entitled to compensation under section 117.055 at that time.

SUMMARY

The county clerk may not charge a filing fee for the rendition of clerical services in connection with the execution or preparation of a release of judgment pursuant to section 31.008 of the Civil Practice and Remedies Code. Section 31.008 neither requires nor prohibits the filing of the release of judgment in the court file for the particular case. The county is entitled to the fee authorized by section 117.055 of the Local Government Code for accounting and administrative expenses incurred in handling funds deposited in the county clerk's trust fund pursuant to section 31.008. It may not collect the fee at the time the funds are paid to the court.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Steve Aragón
Assistant Attorney General