Does a Texas county clerk have to file a judgment from a 'common law court'?

Plain-English summary

The Lavaca County Attorney asked whether a county clerk must file a judgment rendered by a "common law court." The Attorney General said no, and explained why. The question came up because of the "Republic of Texas" movement, whose members held "trials" in self-styled "common law" courts and tried to file the resulting "judgments," liens, and other papers in the real district and county courts of Texas. Clerks were sometimes misled because the bogus documents looked, at first glance, like ordinary court papers, though they identified on their face a "common law court of the Republic of Texas" or a similar body.

The office's analysis was straightforward. Article V, section 1 of the Texas Constitution vests "the judicial power of this State" only in the courts it lists (the Supreme Court, the Court of Criminal Appeals, the courts of appeals, district courts, county courts, commissioners courts, and justice courts) plus the statutory courts the Legislature creates, such as municipal courts and county courts at law. A "common law court," whether of the "Republic of Texas" or otherwise, is not among them. As a Texas appeals court had put it in Kimmel, the common law court for the Republic of Texas, if it ever existed, ceased to exist on February 16, 1846.

From there, the recording statutes did the work. Local Government Code section 191.001(c) directs the county clerk to record instruments "that the clerk is authorized to record"; section 192.001 covers instruments "required or permitted by law to be recorded"; and section 192.004 covers judgments and other instruments that create a lien. A document that says on its face it is a judgment of a "common law court" is none of these: it is not authorized or required to be recorded, and a purported lien from such a court is not a lawful instrument and cannot create a lien. The office relied on Bernard v. Crowell for the rule that a clerk has no discretion to file papers "recognized by law as properly belonging in the record of causes," and a "common law court" document is not such a paper, because the court is not legally constituted.

So the office advised that district and county clerks should reject any document indicating on its face that it is to be filed in, is an order or judgment from, or is a notice of a removal petition to, any purported court not named in the constitution or statutes. The opinion suggested practical steps: clerks should keep a list of legitimate courts and consult the county or district attorney with questions; local officials might post notices about the legal consequences of filing fraudulent liens (the Legislature had added Business & Commerce Code section 9.412 in 1995, making a fraudulent lien filing a criminal offense and a cause of action for the property owner); and county and district attorneys should draw up guidelines so that no legitimate filing is denied and state and federal constitutional requirements are observed.

Currency note

This opinion was issued in 1996. 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.

This opinion construed article V, section 1 of the Texas Constitution and the Local Government Code recording statutes as they stood in 1996. Those provisions have been amended and renumbered since (the fraudulent-lien provision the opinion cited as Business & Commerce Code section 9.412 has since been relocated, and Texas later enacted dedicated statutes addressing fraudulent court records and liens). Read this page for the office's 1996 reasoning that a clerk need not, and should not, record a "common law court" judgment, and verify the current statutes before relying on any specific section number here.

What the opinion meant at the time

For county and district clerks: The opinion meant a clerk should reject any document that on its face came from, was to be filed in, or was a removal notice to a court not named in the Texas Constitution or statutes, including "common law courts." A clerk had no duty (and no authority) to record a "common law court" judgment or a lien based on it.

For county and district attorneys: The opinion recommended that they help clerks distinguish legitimate from bogus filings, draw up guidelines so no legitimate filing is denied, and ensure state and federal constitutional requirements were observed. In some cases, prosecutors might need to monitor filings for compliance.

For property owners targeted by fraudulent liens: The opinion described the new Business & Commerce Code section 9.412, which (as of 1995) forbade filing a fraudulent lien, created a cause of action for the owner of the affected property, and made such filing a criminal offense.

For lawyers: The opinion grounds the clerk's authority to reject these filings in article V, section 1 (which courts hold judicial power) and the Local Government Code recording statutes (sections 191.001(c), 192.001, 192.004), and it relies on Bernard v. Crowell for the proposition that a clerk has no discretion to file papers not recognized by law as belonging in the record of causes.

Common questions

Did a county clerk have to file a "common law court" judgment?
No. The office concluded a clerk should reject it. A "common law court" is not a court under the Texas Constitution or statutes, so its "judgment" is not an instrument the clerk is authorized or required to record.

Why aren't "common law courts" real courts?
Because article V, section 1 of the Texas Constitution vests judicial power only in the courts it names and the statutory courts the Legislature creates. A "common law court" of the "Republic of Texas" is not among them; as the Kimmel court said, it ceased to exist (if it ever existed) on February 16, 1846.

What should a clerk do when handed one of these documents?
The opinion advised rejecting any document that on its face is filed in, issued by, or a removal notice to a court not named in the constitution or statutes, keeping a list of legitimate courts, and consulting the county or district attorney with questions.

What happens to someone who files a fraudulent lien?
The opinion pointed to Business & Commerce Code section 9.412, added in 1995, which forbade filing a fraudulent lien, gave the affected property owner a cause of action, and made such a filing a criminal offense.

Background and statutory framework

Article V, section 1 of the Texas Constitution vests the judicial power of the state in the Supreme Court, the Court of Criminal Appeals, the courts of appeals, district courts, county courts, commissioners courts, and justice courts, plus any other courts the Legislature establishes. The statutory courts (municipal courts, county courts at law, and specialized courts in larger counties) are created under that authority. No "common law court" is among them.

The county clerk's recording duties are set by the Local Government Code: section 191.001(c) (record instruments the clerk is authorized to record), section 192.001 (record instruments required or permitted by law to be recorded), and section 192.004 (record judgments and other instruments that create a lien). A "common law court" document fits none of these categories. The office cited Bernard v. Crowell, 38 S.W.2d 912 (Tex. Civ. App.-San Antonio 1931, no writ), for the rule that a clerk has no discretion over filing papers recognized by law as belonging in the record of causes, and Kimmel v. Burnet County Appraisal District, 835 S.W.2d 108 (Tex. App.-Austin 1992, writ dism'd w.o.j.), for the nonexistence of the "Republic of Texas" common law court. It described United States v. Greenstreet, 912 F. Supp. 224 (N.D. Tex. 1996), as a recent example of the movement's bogus filings (false UCC-1 financing statements against federal employees). The office also noted the 1995 enactment of Business & Commerce Code section 9.412, criminalizing fraudulent lien filings and creating a cause of action.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. V, § 1 (judicial power vested in the named courts and statutory courts)
• Local Government Code section 191.001(c) (clerk records instruments the clerk is authorized to record); section 192.001 (instruments required or permitted by law to be recorded); section 192.004 (judgments and instruments that create a lien)
• Business & Commerce Code section 9.412 (1995; fraudulent lien filing forbidden, cause of action created, criminal offense)
• Local Government Code chapters 202 and 203, and Government Code chapter 441, subchapter J (records retention and destruction); Government Code section 552.351 (criminal offense for willful destruction of records) (cited in a footnote)

Cases discussed:

• United States v. Greenstreet, 912 F. Supp. 224 (N.D. Tex. 1996)
• Kimmel v. Burnet County Appraisal District, 835 S.W.2d 108 (Tex. App.-Austin 1992, writ dism'd w.o.j.)
• Bernard v. Crowell, 38 S.W.2d 912 (Tex. Civ. App.-San Antonio 1931, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0389
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0389.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering and the names of older cases) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 2, 1996

The Honorable James W. Carr
Lavaca County Attorney
Box 576, Second Floor Courthouse
Hallettsville, Texas 77964

Opinion No. DM-389

Re: Whether a county clerk must file a judgment issued by a "common law court" (RQ-876)

Dear Mr. Carr:

You have requested our opinion as to whether a county clerk must file a judgment rendered by a "common law" court.

In recent years, the so-called "Republic of Texas" movement has harassed various local public officials by, among other things, conducting "trials" in self-styled "common law" courts of the movement's invention, and attempting to file the "judgments" resulting from those trials, and other such documents, including pleadings, in the lawful district and county courts of this state.[1] In the most recent reported instance, two individuals, at odds with the federal Farmer's Home Administration over a prior debt, filed false UCC-1 financing statements against three United States Department of Agriculture employees named as "debtors." United States v. Greenstreet, 912 F. Supp. 224, 227 (N.D. Tex. 1996).[2]

Some clerks of courts have been misled by the attempted filings of these bogus papers, apparently because, at first glance, they appear to be similar in form to documents routinely filed in the courts of Texas. Invariably, however, they indicate on their face the purported existence of the "common law courts of the Republic of Texas," or similar bodies which have no legal existence except in the minds of the partisans of this movement. As the court said in Kimmel: "We hold that the Common Law Court for the Republic of Texas, if it ever existed, has ceased to exist since February 16, 1846." Kimmel, 835 S.W.2d at 109.

The Texas Constitution states, in article V, section 1:

The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.

These specified courts, together with those statutory courts which the legislature has created, such as municipal courts, county courts at law, and the various specialized courts existing in the larger counties, constitute the only courts in which is vested the "judicial power of this State." Tex. Const. art. V, § 1. No "common law court," whether of the so-called "Republic of Texas" or otherwise, is among those ordained by constitution or statute.

Section 191.001(c), Local Government Code, provides: "The county clerk shall record, exactly, without delay, and in the manner provided by this subtitle, the contents of each instrument that is filed for recording and that the clerk is authorized to record." A document specifying on its face that it is a judgment of a "common law" court is not one "that the clerk is authorized to record." Section 192.001, Local Government Code, states: "The county clerk shall record each deed, mortgage, or other instrument that is required or permitted by law to be recorded." An instrument originating from a "common law" court is not one "that is required or permitted by law to be recorded."

Finally, section 192.004, Local Government Code, provides: "The county clerk shall record separately from a deed or other conveyance each deed of trust, mortgage, or judgment that is required to be recorded to create a judgment lien and every other instrument that is intended to create a lien." A purported lien from a "common law" court is not a lawful instrument and therefore cannot create a lien. In Bernard v. Crowell, 38 S.W.2d 912 (Tex. Civ. App.-San Antonio 1931, no writ), the court said that "the clerk of a trial court has no discretion in the matter of filing papers recognized by law as properly belonging in the record of causes." Any document that purports to be an order or judgment from a "common law" court is not one that is "recognized by law as properly belonging in the record of causes," because a "common law" court is not a legally constituted court under the constitution or statutes of this state.

County and district clerks should reject any document that indicates on its face that it is to be filed in, that it is an order or judgment from, or that it is a notice of a removal petition to, any purported state or local court not so named in constitution or statute.[3] A clerk should maintain a list of legitimate courts ready at hand to assist in this determination, and should of course consult his or her county or district attorney should any questions arise. Local officials may also wish to post notices advising of the legal consequences that attach to the filing of fraudulent liens.[4] Furthermore, county and district attorneys would be well advised to draw up a set of detailed guidelines to assist clerical employees in assuring that no legitimate filings are denied, and that both state and federal constitutional requirements are strictly observed. In some instances, it might be necessary for prosecutorial officials to monitor filings to ensure compliance with the law.[5]

SUMMARY

A district or county clerk should not accept for filing any document that indicates on its face that it is to be filed in, that it is an order or judgment from, or that it is a notice of a removal petition to, any purported state or local court not named in the constitution or statutes of the state of Texas. County and district attorneys should assist clerical employees in making certain that no legitimate filings are denied, and that state and federal constitutional requirements are strictly observed.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

[1] Seven examples of the kind of "documents" at issue are reproduced as appendices to the court's decision in Kimmel v. Burnet County Appraisal District, 835 S.W.2d 108, 109-115 (Tex. App.-Austin 1992, writ dism'd w.o.j.).

[2] Greenstreet argues that he is of "Freeman character" and "of the white Preamble Citizenship and not one of the 14th Amendment legislated enfranchised De Facto colored races." He further claims that he is a "white Preamble natural sovereign Common Law De Jure Citizen of the Republic/state of Texas." As a result, he concludes that he is a sovereign, not subject to the jurisdiction of this Court. Greenstreet, 912 F. Supp. at 228.

[3] We note that if district and county clerks have already accumulated a number of documents relating to the so-called "Republic of Texas," they may be able to dispose of them in accordance with the portions of the records retention statutes that relate to destruction of records. See Local Gov't Code chs. 202 (terms under which local governmental records may be destroyed), 203 (duties of records custodians for local governmental bodies); see also Gov't Code ch. 441, subch. J (revisions to local government records retention schedules). We caution, however, that local officials should exercise caution in this regard, since section 552.351, Government Code, creates a criminal offense for willful destruction of records, i.e. not in compliance with statutory requirement.

[4] In 1995, the legislature amended chapter 9 of the Texas Uniform Commercial Code to add section 9.412, which forbids the filing of a fraudulent lien, creates a cause of action in favor of the owner of property covered by the fraudulently filed financing statement, and makes such filing a criminal offense. See Bus. & Com. Code § 9.412.

[5] Individuals claiming to be "citizens" of the "Republic of Texas" leave no doubt that they mean business, and they routinely issue public threats to "bring down" government. In a recent address before about 300 supporters at the State Capitol, the "provisional secretary of defense" of the "Republic" declared: "In about two weeks, we crank up to the next round. When we start going after . . . personal property, it's going to get real serious. If we have to bring the whole government to a halt in order to get legal review before the Legislature so they can determine their lawful status, we'll do it." Jeffry Needham, Republic Leaders Give Notice To Governor, IRS, San Antonio Express-News, Mar. 19, 1996, at 3B.