Untitled Texas Attorney General Opinion ( 1983 )

1
The Attorney General of Texas
March 14, 1983
JIM MATTOX
Attorney General
Honorable Mike Driecoll Opinion No. JM-11
Supreme Court Bullding Harris County Attorney
P. 0. Box 12548 1001 Preston, Suite 634 Re: Fees to be collected
Austin. TX. 78711. 2549
Houston, Texas 77002 county clerk for filing
5121475-2501
Telex 9101874~1387
foreign judgment pursuant
Telecopier 5121475~0206 article 2328b-5. V.T.C.S.
Dear Mr. Driscoll:
1607 Main St.. Suite 1400
Dallas, TX. 75201-4709
2141742.8944 You have asked if the county clerk of Harris County
constitutionally authorized to collect the filing fee set forth
article 2328b-5, V.T.C.S.
4824 Alberta Ave.. Suite 160
El Paso. TX. 798052793
9151533.3484
Article 2328b-5 is the Uniform Enforcement of Foreign Judgments
Act, enacted by the legislature in 1981. Generally, it provides that
P
a copy of any properly authenticated foreign judgment may be filed
,220 Dallas Ave.. Suite 202 the office of the clerk of any court of competent jurisdiction.
Houston, TX. 770026986 statute directs the clerk to “treat the foreign judgment in the same
7131650.0666
manner as a judgment of the court in which the foreign judgment
filed.” V.T.C.S. art. 2328b-5, 12.
806 8roadway. Suite 312
Lubbock. TX. 794013479 Section 5 of the act states:
8061747.5238
A person filing a foreign judgment shall pay $10
4309 N. Tenth, Suite B
to the clerk of the court. Fees for other
MeAllen, TX. 78501-1685 enforcement proceedings shall be as otherwise
5121682.4547 provided by law for judgments of the courts of
this state.
200 Main Plaza, Suite 400
San Antonio. TX. 78205-2797 You question the constitutionality of the statute because
5121225.4191 title of the measure enacting it did not refer to a fee nor to
duty of the clerk to collect one. Article III, section 35 of
Texas Constitution provides in part:
An Equal Opportunity/
Affirmative Action Employer
Sec. 35. No bill . . . shall contain more than
one subject, which shall be expressed in its
title. But if any subject shall be embraced in an
act, which shall not be expressed in the title,
such act shall be void only as to so much thereof,
as shall not be so expressed.
Honorable Mike'Driscoll - Page 2 (J&11)
YOU suggest that since the subject of fees was not expressed in the
title, article 2328b-5, V.T.C.S., is void as to the provision
regarding fees.
In our opinion, the title of the bill in question is sufficient.
It reads, "An Act relating to the uniform enforcement of foreign
judgments." Acts 1981, 67th Leg., R.S., ch. 195. at 464. The filing
of a foreign judgment is the first step necessary for enforcement of
the judgment in this state. Indeed, after setting out the fee for
filing a foreign judgment, the statute continues, "Fees for other
enforcement proceedings shall be as otherwise provided by law for
judgments of courts of this state." V.T.C.S. art. 2328b-5, 15. Thus,
the fee provision relates to the enforcement of foreign judgments.
At least since the Texas Supreme Court decided the case of &
Hayman Construction Company v. American Indemnity Company, 471 S.W.2d
564 (Tex. 1971). it has been the rule in this state that the caption
of an act should be liberally construed so as to uphold its validity
if at all possible. It is now settled that a statute will not be held
to violate the constitutional provision if its own provisions relate
directly or indirectly to the same general subject, have a mutual
connection, and are not foreign to the subject expressed in the title.
Robinson v. Hill, 507 S.W.Zd 521, 525 (Tex. 1974); City of Brownsville
?
v. Public Utility Commission of Texas, 616 S.W.2d 402, 407 (Tex. Civ.
APP. - Texarkana 1981, writ ref'd n.r.e.). See also Jessen
Associates, Inc. v. Bullock, 531 S.W.2d 593, 601 (Tex. 1975). In our
opinion, the fee provision of article 2328b-5 meets the test. Cf.
Attorney General Opinion H-1097 (1977) (not necessary that the caption
of an amendatory bill apprise the reader of the precise effects of the
body of the bill, so long as the general subject of the amending bill
is disclosed).
You also ask, "What is the correct fee to be collected by the
county clerk of Harris County, as clerk of the court at the time of
filing a 'foreign judgment' as stated in article 2328b-5, V.T.C.S.?"
The correct fee to be collected at that time for filing the foreign
judgment is ten dollars ($10.00).
You further ask if the clerk can thereafter collect several other
fees related to litigation and to the enforcement of judgments, and if
so, how much.
The statute plainly provides that fees for other enforcement
proceedings shall be as otherwise provided by law for judgments of the
courts of this state. Article 3930(b). V.T.C.S., specifies in section
1. subsection C, that where no cause is pending, the clerk shall
charge $4.00 for issuing (and recording of the return thereon) each
instrument or paper on which a return must be recorded. The mere
filing of a foreign judgment does not initiate a suit or cause; thus, ?
p. 46
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Honorable Mike Driscoll - Page 3 (JM-11)
fees associated with the enforcement of foreign judgments will
ordinarily be those "where no cause is pending." Of course, if a
proceeding such as a garnishment action is instituted in connection
therewith, then the fees to be charged "for each cause or action or
docket" as specified by other provisions of article 3930b should be
collected. It might also be noted that section (10) of article 3930,
V.T.C.S.. requires county clerks to collect reasonable fees for the
discharge of duties prescribed, authorized or permitted by the
legislature for which no fee is statutorily set. See also Attorney
General Opinion H-235 (1974). Cf. Attorney General Opinion MU-452
(1982) (county clerk effecting service of citation by publication must
charge same fees as the sheriff or constable is authorized to charge).
Other fees about which you have asked are the sheriff's fee
authorized by article 3926a, V.T.C.S., and the law library fee
authorized by article 1702h. V.T.C.S. The law library "fee" is one
"taxed, collected and paid as other costs" in civil cases. V.T.C.S.
art. 1702h, 54. It is not to be collected where no case or suit has
been initiated. Article 3926a, V.T.C.S.. allows the commissioners
court of each county to set reasonable fees to be charged for services
by the offices of sheriffs and constables. If fees have been properly
established for the services of sheriffs in connection with the
enforcement of judgments of the courts of this state, such fees may
also be collected for services of sheriffs in connection with the
enforcement of foreign judgments.
SUMMARY
The fee to be collected by a county clerk for
filing a foreign judgment is $10. The title of
the act establishing the fee is constitutionally
sufficient for that purpose. Fees for other
enforcement proceedings respecting foreign
judgments are the same as those provided by law
for the enforcement of judgments of the courts of
this state. 1
L-l-J&
-
Very truly your ,
JIM
.
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 47
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HonorableMike Driscoll- Page 4 a-11)
Preparedby Bruce Youngblood
AssistantAttorneyGaneral
APPROVED:
OPINION COMMITTEE
Susan L. Garrison,Chairman
Jon Bible
Rick Gilpin
George Gray
Jim Moellinger
Bruce Youngblood
p. 48