Did a Texas district attorney have to pay the county clerk to record a judgment abstract from a bond forfeiture case?

Texas AG Opinion JM-779: Judgment Abstract Fee After Bond Forfeiture

Plain-English summary

The district attorney for Texas's 25th Judicial District asked whether his office had to pay a county clerk to record an abstract of a final judgment against a principal or surety in a bond-forfeiture proceeding.

The Attorney General concluded that no payment was required. Although a bond forfeiture began as a criminal action, civil procedure governed after entry of the judgment nisi, and article 22.14 required collection of the final judgment by execution as in civil actions.

Recording an abstract in each county where the debtor owned real property created a judgment lien. Government Code section 51.318 authorized the county clerk to charge a recording fee, but article 3912e generally prohibited the state or a county from paying fees or commissions to district or county officers for official services.

Article 3912e preserved payment of costs in civil cases. JM-779 concluded, however, that the fee for recording the judgment abstract was not a litigation "cost" within that exception. The clerk therefore could not collect it from the district attorney.

Currency note

This opinion was issued in 1987. 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.

Common questions

Was a bond-forfeiture proceeding criminal or civil?

The opinion described it as a criminal action, while noting that the Rules of Civil Procedure governed further proceedings after entry of the judgment nisi.

Why record an abstract of the final judgment?

The opinion said filing an abstract in a county where the judgment debtor had real property created a lien against property owned or later acquired by that debtor.

Could the county clerk generally charge for recording a judgment abstract?

Yes. Government Code section 51.318 authorized a recording fee.

Why could the clerk not collect the fee from the district attorney?

Article 3912e prohibited payment of officer fees by the state or county, apart from specified costs. JM-779 concluded that recording the abstract was not a cost attributable to the underlying litigation.

Did article 3912e remain in effect after the opinion's date?

The opinion's footnote stated that article 3912e had been repealed and replaced by the Local Government Code effective September 1, 1987, one day after JM-779 was issued.

Background and statutory framework

Code of Criminal Procedure article 22.10 made civil procedure applicable after the judgment nisi in a bond-forfeiture action. Article 22.14 provided that the final judgment was collected by execution as in civil actions.

Articles 5447 and 5448 addressed filing the judgment abstract to create a lien. V.T.C.S. art. 5449 governed the lien's duration while the underlying judgment remained active.

Government Code section 51.318 authorized county-clerk fees for recording abstracts of judgment. Article 3912e, section 1, barred state and county payments of fees or commissions for official services, while preserving payment of costs in civil and eminent-domain proceedings.

The Attorney General relied on earlier opinions distinguishing litigation costs from separate recording fees. Attorney General Opinion MW-308 had concluded that a similar fee for recording an abstract from a delinquent-tax judgment was not a cost taxable to the state.

Citations and references

Statutes:

• Code of Criminal Procedure articles 22.10 and 22.14, bond-forfeiture procedure and collection
• V.T.C.S. articles 5447, 5448, and 5449, judgment abstracts and liens
• Government Code section 51.318, county-clerk recording fee
• V.T.C.S. article 3912e, section 1, fees paid to public officers

Cases:

• Tinker v. State, 561 S.W.2d 200 (Tex. Crim. App. 1978)
• Blue v. State, 341 S.W.2d 917 (Tex. Crim. App. 1960)
• Williams v. Simon, 235 S.W. 257 (Tex. Civ. App. - Austin 1921, writ dism'd w.o.j.)

Prior opinions:

• Attorney General Opinion WW-628 (1959)
• Attorney General Opinion M-134 (1967)
• Attorney General Opinion WW-658 (1959)
• Attorney General Opinion WW-508 (1958)
• Attorney General Opinion O-807 (1939)
• Attorney General Opinion M-168 (1967)
• Attorney General Opinion MW-308 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0779
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0779.pdf

Original opinion text

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

August 31, 1987

Honorable W. C. Kirkendall
District Attorney
25th Judicial District
113 South River, Suite 205
Seguin, Texas 78155

Opinion No. JM-779

Re: Whether a district attorney is required to reimburse a county clerk for services rendered pursuant to a bond forfeiture proceeding

Dear Mr. Kirkendall:

You ask whether a district attorney's office is required to pay a fee to the county clerk to file an abstract of a final judgment issued against a principal or surety in a bond forfeiture proceeding. We conclude that the district attorney need not pay such a fee.

A bond forfeiture proceeding is a criminal action, but after the entry of a judgment nisi all further proceedings are governed by the Rules of Civil Procedure. Code of Crim. Proc. art. 22.10; Tinker v. State, 561 S.W.2d 200 (Tex. Crim. App. 1978); Blue v. State, 341 S.W.2d 917, 919 (Tex. Crim. App. 1960). Article 22.14 of the Code of Criminal Procedure specifically provides that final judgments in bond forfeiture proceedings "shall be collected by execution as in civil actions." If a bond forfeiture hearing is concluded with a judgment in favor of the state, then the award can be secured, at least in part, by the creation of a lien against real property belonging to a judgment debtor. To create such a lien, an abstract of judgment must be filed in the county clerk's office for each county where real property of the judgment debtor is to be found. V.T.C.S. arts. 5447, 5448. Filing the abstract of judgment creates a lien against any property owned, or after-acquired, by the judgment debtor. A lien is valid for an initial period of ten years if the judgment on which it is based does not become dormant. V.T.C.S. art. 5449.

The county clerk is authorized by section 51.318 of the Government Code to charge a fee for recording abstracts of judgment. But article 3912e, at section one, provides, in part, that

[n]o district officer shall be paid by the State of Texas any fees or commissions for any service performed by him; nor shall the State or any county pay to any county officer in any county containing a population of twenty thousand (20,000) inhabitants or more . . . any fee or commission for any service by him performed as such officer . . . provided further, that the provisions of this Section shall not affect the payment of costs in civil cases or eminent domain proceedings by the State. . . .

V.T.C.S. art. 3912e, §1.

In Attorney General Opinion WW-628 (1959), this office observed that:

It is noted that the prohibitions contained in Sections 1 and 3 of Article 3912e . . . concerning the payment of fees or commissions by the State do not apply to the payment of costs . . . by the State where the fees earned constitute a part of the cost assessed against the State in a particular case. Therefore, such cost must be paid by the State as provided by law rather than as a fee to the individual officer. (Emphasis added.)

See also Attorney General Opinions M-134 (1967); WW-658 (1959); WW-508 (1958); O-807 (1939). Compare Attorney General Opinion M-168 (1967) (filing fees in criminal cases need not be paid).

The charge levied by a county clerk for recording an abstract of judgment is not a "cost" in the sense that word is used in article 3912e; as such, the district attorney need not pay it. This office has previously concluded that the fee charged by a county clerk for recording an abstract of judgment in a tax delinquency suit is not a part of the "costs" attributable to the litigation on which the judgment is based. Article 3912e thus excuses the state from paying the statutory fee. See Attorney General Opinion MW-308 (1981). Cf. Williams v. Simon, 235 S.W. 257 (Tex. Civ. App. - Austin 1921, writ dism'd w.o.j.) (recording a "muniment of title" has never been recognized as generating a "cost" taxable to a party on a suit).

SUMMARY

The county clerk is authorized by the Government Code, section 51.318 to charge a fee for recording an abstract of a final judgment. The clerk may not collect the fee when a district attorney seeks to file an abstract of a final judgment from a bond forfeiture proceeding, article 3912e, section 1, V.T.C.S.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General

1. Article 3912e, V.T.C.S., has been repealed and replaced, effective September 1, 1987, with the Local Government Code. See Acts 1987, 70th Leg., ch. 149, §51.49.