Untitled Texas Attorney General Opinion ( 1993 )

QBfficeof the El~tornep @eneral
&ate of Eexas
DAN MORALES
ATTORNEYCENERAL October 14,1993
Honorable Mike Driscoll Opiion No. DM-262
Harris County Attorney
1001 Preston, Suite 634 lb: whether a constable may, to collect
Houston, Texas 77002-I 891 delinquent child support payments, seize and
sell personal property that sections 42.001,
42.002, and 42.0021 of the Property Code
otherwise exempt from execution and seizure
if the constable is acting pursuant to a wit of
execution and related questions (RQ-518)
DearMr.Driscok
You have asked us to consider the following questions:
1. Whatpersonalproperty.if~,cantheconstableseizeandsell
pursuant to a wit of execution issued to collect child support
arreamges, attorney fees and inte.rest?
2. what additional or other property, if any, can the constable seize
pursuant to said wit of execution if prior to the issuance of said
writ of execution the plain&T in execution has obtained and f&d
for record in the county clerk’s office an abstract of judgment to
establish a “child support lien” pursuant to section 14.972 of the
Family Code?
3. Wbat property can the cOnstable seize, if the plaintiff in execution
obtains an order pursuant to section 14.979 of the Family Code
foreclosing on the child support lien purportedly created by filing
the abstract of judgment in the office of the county clerk?
We will consider your questions in the order you asked them.
Section 14.05 of the Family Code authorizes a court* in a suit atkting the parent-
child relationshipZ to order either or both parents to make periodic payments for the
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support of the child generally until the child is eighteen years of age. If the obligers fhils
or rei%es timely to make a periodic payment, that fact “shall constitutes a final judgment”
for all child support unpaid and owing, including interest calculated pmsuant to section
14.34 of the Family Code. Fam. Code Q 14.41(a). If the obUge& or obliger makes a
proper motion, the court, a&r notice and hearing, must con6rm the amount of child
support in arrears and must render judgment against the obligor for the amount of child
support unpaid and owing, including interest. Id. The obligee may enforce the judgment
“by any means available for the enforcement of judgments for debts or by an order of the
court reqding that income be withheld Erom the disposable earnings of the obligor in an
amount suflicient to satisfy the judgment.” Id.; see id. 5 14.43 (specifying requirements
for court order enforcing judgment through withholding of obliger’s disposable earnings).
Execution is a process by which a court enforces its judgment by authorizing a
sheritfor constable to seize property and cause its transfer or sale. TEx. R Crv. P. 621,
622. To execute upon a judgment of the district court, the obligec must apply for a writ
of execution at least thirty days after the day the judge signed the linal judgment; thus, a
court may issue an execution only on a valid, Gnal judgment. Id. rule 627; see id. rule
621. The writ of execution orders the sheriff or constable to, without delay, seize any and
all of “the property of the defendant found within [the officer’s] county thal is not exempt
from enxution,” to sell the property, and to apply the proceeds of the sale to the
underlying debt. Id. rule637 (emphasis added); see id. rules639-643 (iicting how to
levy on various types of property). The Texas Constitution and state statutes provide for
the exemption from execution of certain real and personal property.
Article XVI, section 50 of the Texas Constitution expressly protects the
homestead of a family or of a single adult person from forced sale for the payment of all
debts, with certain exceptions irrelevant here. See also Tex. Const. art. XVI. 6 51
(delineating homestead). The legislature has codi&d the constitutional homestead
exemption in chapter 41, subchapter A of the Property Code. With regard to personal
property, article XVI, section 49 of the Texas Constitution authorixes the legislature to
“protect by law from forced sale a certain portion of the personal property of all heads of
hilies, and also of unmarried adults, male and female.” Article XVI, section 49 by itself
thus does not exempt any personal property from execution; instead, the legislature has
*or pmposcaof title 2, subtitlesA sod C of the Family code (of which chapter 14 is a part),
“suit affecling the parent-child relationship”inch&s “a suit brought under this sobtitle in which
the.. .bvpportofachild[]. . .ismoght” Faso. Code.5 11.01(5).
3Section ll.Ol(9) of the Family Code de&es “obliger” as “any person required to make
paymats anda the teamsofa supportorderfor a child.”
‘An ‘obligee” is “any person or entity entitled to receive paymentsunder an order of child
support[in&ding] an agencyof this stateor of anotherjurisdictionto which a personhas assigned his or
her rightto support.”Fam. Cede 0 ll.Ol(lO).
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provided, in sections 42.001,42.002, and 42.0021 of the Property Code, a specific list of
personal property exempt 6om attachment execution, or seizure. Significantly for your
questions, however, section 42.005 of the Property Code provides that sections 42.001,
42.002, and 42.0021 do not apply to a child support lien establishedpursuant to chapter
14, subchapter F of the Family Code.
The Property Code does not deiine “child support lien.” However, pursuant to
chapter 14, subchapter F of the Family Code (sections 14.971- 14.983), a child support
lien attaches to all of an obligor’s nonhomestead real property5 and to all of the obliger’s
personal property not exempt under the Texas Constitution, “including all claims for
negligence, personal injury, or workers’ compensation” that the obliger owns on or after
the date on which the lien attaches. Fam. Code § 14.972(b), (c). The lien attaches when
the claimants Bles one of two documents--either an abstract of judgment7 or a child
support lien notices for past due child support-with:
(1) the county clerk of any county in which the obligor is
believed to own nonexempt real or personal property or in the county
in which the obligor resides;
(2) tbe clerk of the court in which a claim, wunterclaim, or suit
by the obliger is pending, provided that a copy of the lien is mailed to
the attorney of record for the obliger. and
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(3) any attorney who represents the obliger in a claim or
wunterclaim which has not been filed with a wurt.
Id 5 14.974.
Significantly, a claimant may create a child support lien with or without judicial
action, and the child support lien may or may not be supported by a judgment. If a court
already has determined that an obligor is in arrears on his or her child support payments,
the chimant may perfect the child support lien by tiling in accordance with section 14.974
of the Family Code either an abstract of judgment or a child support lien notice. See Fam.
Code $5 14.972(a), 14.973(a)(4), (5). Ifthe court determined that the obligor is in arrears
and de-termined the amount of arream, but for some reason failed to in&de a money
judgment in its order, a claimant may perfect the child support lien only by filing a child
support lien notice. Id 5 14.973(a)(4). Additionally, a claimant may perfect the child
support lien only by filing a child support lien notice if no court has determined that the
obligor is in arrears but an administrative determmation of an arrearage exists in a writ of
withholding issued pursuant to section 14.45 of the Family Code. Id
Your first question requires us to consider whether, given that section 42.005 of
the Property Code states that sections 42.001,42.002, and 42.0021 of the Property Code
are inapplicable to a child suppori lien, a wnstable may levy a writ of execution on
personal property that sections 42.001,42.002, and 42.0021 exempt from execution.9 We
wnclude that the wnstable may not. As we have discussed above, a child support lien
attaches only when a claimant tiles either an abstract of judgment for past due child
support or a child support lien notice. A child support lien does not attach by virtue of a
claimant’s obtaining a writ of execution. Thus, a constable levying on a writ of execution
for a child support arrearage may levy only on personal property of the obligor that
sections 42.001,42.002, and 42.0021 do not exempt from execution.
In your second question, you ask whether the constable may seine additional
property if prior to the time the wurt issues a writ of execution, the obligee has filed in
the county clerk’s office an abstract of judgment. *O As discussed mpru, once a claimant
files an abstract of judgment with an appropriate county clerk, a child support lien attaches
to all nonhomestead real property in that county as weU as all personal property not
exempt under provisions of the Texas Constitution. See Fam. Code 5 14.972(a), (b), (c).
Pursuant to section 42.005 of the Property Code, a child support lien attaches to personal
*Oweassame that tbc countyclerk’sof& to which you referis in a county in which the obliger
isbelievedtoown Mnexcmptrtalorpmonalpmpertyorinthecountyinwhichtheobligorrrsides. See
Fam. Code $ 14.974.
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property that sections 42.091, 42.002, and 42.0021 of the Property Code otherwise
exempt from execution or seizure.
Your second question requires us to wnstrue section 14.979(a) of the Family
Code, which provides as follows:
When a child support lien notice has been Uled under this
subchapter, an action to foreclose a lien on nonexempt real or
personal property may be brought in the district court of the county
in which the property is or was located and the lien was Sled.
pmphasis added.]
On its face, section 14.979(a) applies only to a child support lien predicated upon the Sling
of a child support lien notice; it does not apply to a child support lien predicated upon the
filing of an abstract ofjudgment. You argue, however, that section 14.979(a) also should
apply to a child support lien predicated upon the filing of an abstract of judgment. This
would require us to add to section 14.979 the words “abstract of judgment,” so that
section 14.979(a) would read, “When a child support lie-n notice or abstractofju&ment
has been filed . . , an action to foreclose. . . may be brought.” If we construe section
14.979(a) as you suggest, then a wnstable may not seize additional property if prior to
the time tbe wurt issues a writ of execution, the obligee has tiled in the county clerk’s
office an abstract of judgment unless the obligee also has prevailed in a foreclosure
proceeding. We decline to construe section 14.979(a) in this manner.
We must presmne that every word tbe legislature excluded from a statute was
excluded for a purpose Cameron v. TerrelldtGarrett,Inc., 618 S.W.2d 535,540 (Tex.
1981). We may insert additional words into a statute only when it is necessary to
effectuate the clear legislative intent. Id. In our opinion, the legislature chose to exclude
“abstract of judgment” because to require a claimant to institute a foreclosure pnxeeding
when the claimant already had obtained an abstract of judgment would be supertluous.
We believe, as well, that section 14.979(a) does not require a claimant to institute a
foreclosure proc&ing on a child support lien predicated upon the filing of a child support
lien notice ifthe claimant filed the child support lien notice subsequent to obtaining a valid,
tinal court judgment that the obliger is in arrears and that determines the amount of the
arrearage.
Foreclosure is the process by which a lien holder may become entitled to possess
or sell property subject to the lien to satisfy a debt or obligation. Rule 309 of the Texas
Rules of Civil Procedure provides generally for the foreclosure of liens. Under rule 309, a
judgment for the foreclosure of a lien “shall be. . . that an order of sale shall issue to any
sheriEor any constable within tbe State of Texas, dimcting him to seize and sell the same
as under execution, in satisfaction of the judgment.” Accordingly, we note that any holder
of a child support lien may institute a foreclosure proceeding on the lien, regardless of
whether the lien is predicated upon the filing of an abstract of judgment or a child support
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lien notice. Ifthe lien holder prevails in the foreclosure proceeding, the judgment “sbaU be
that the [daimant] recover his debt, damages and costs.” TEX. R CIV. P. 309. To satisfy
the judgment, the court shall issue an order of sale “to any sheriff or any constable within
theStateofTexas,direainghimtoseizcandseUfhescmreasMderexenrtion.” Id.
(Emphasis added.) Furthermom, the court shall order the sheriff or constable to, “as in
case of ordinary executions,” satisfy the debt out of any other of the obliger’s property if
the property to which the lien attaches is not found or is insufticient. Id.
The primary purpose of a foreclosure proxxding under section 14.979(a) of the
Family Code is to provide a judicial forum to decide whether an obliger is in arrears on the
payment of child support. when a claimant has created a child support lien by filing either
an abstract of judgment or a child support lien notice based upon a valid, fmal judgment,
however, a court already has determined that the obliger is in arrears and the amount of
child support the obliger owes. In fact, the only defensive issue an obligor may raise at
such a foreclosure proceedmg is a claim of satisfaction. Rule 630 of the Texas Rules of
Cii Procedure, however, mandates that an execution upon a judgment for a sum of
money must specify the sum actually due when the court issues the writ of execution.
Furthermore, if a writ of execution misstates the amount actually due on the judgment, the
obliger may file a claim for injunctive relief See Civ. Prac. & Rem. Code 5 65.011.
Requiring a claimant to institute a foreclosure pmceedmg on a child support lien
predicated upon the Sling of an abstract of judgment or a child support lien notice based
upon a valid, tinal court judgment simply would require the court once again to determine
that the obliger is in arrears and the amount of child support the obligor owes. On the
0th`` hand, requiring a claimant to foreclose upon a child support lien predicated upon the
tiling of a child support lien notice not based upon a valid, final wurt judgment is not
superfluous; no wurt has yet validly and 6naUy determined that the obligor is in arrears
and the amount of the arrearage. Consequently, we do not believe that the legislature
intended to require a claimant to initiate foreclosure proceedings on a child support lien
established by the Sling of an abstract of judgment or a child support lien notice based
upon a valid, Snal wurt judgment. Thus, in answer to your second question, a constable
may seize all of an obliger’s nonhomestead real property and all of the obliger’s personal
property pursuant to a writ of execution if prior to the issuance of the writ of execution,
the claimsnt has obtained and filed for record in the county clerk’s office an abstract of
judgment. The claimant need not institute a foreclosure proceedmg in compliance with
section 14.979(a) of the Family Code.
Fiiy, you ask what property the constable may seine if the chrimant has not only
6led an abstract of judgment, thereby establishing a child support lien, but also foreclosed
on the lien in accordance with section 14.979(b)(2) of the Family Code and has thereby
obtained an order requiring the constable to levy execution to satisfy the lien, costs, and
attorney’s fees. As we stated above, under rule 309 of the Texas Rules of Civil Procedure,
any holder of a child support lien may foreclose on the lien, regardless of the method by
which the lien attached. Assuming that the court properly conducted a hearing and
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rendered judgment, the court’s order authorizes the wnstable to seize all of the obligork
nonhomestead real property and all personal property, even that personal property that
sections 42.001, 42.002, and 42.0021 of the Property Code otherwise exempt from
attachment, execution, and seizure.
SUMMARY
Pursuant to a writ of execution issued to wllect child support
arreamges, attorney fees, and interest, a constable may seine only
that personal property of the obligor that sections 42.001, 42.002,
and 42.0021 of the Property Code do not exempt from execution.
Rule 309 of the Texas Rules of Civil Procedure authorizes any
holder of a child support lien to foreclose on the lien, regardless of
whether the lien attached upon the tiling of an abstract of judgment
or a child support lien notice. On the other hand, section 14.979(a)
of the Family Code requires a claimant to foreclose on the child
support lien on& ifthe lien attached by virtue of the tiling of a child
support lien notice that was not based on a valid, tinal court
judgment tinding the obliger in arrears and determining the amount
of the arreamge. Section 14.979(a) does not require a claimant to
foreclose on a child support lien that is predicated upon the 6ling of
an abstract of judgment or a child support lien notice based upon a
valid, iinal court judgment. Thus, ir; prior to the issuance of the writ
of execution, the claimant obtained an abstract of judgment and filed
it for record in the appropriate county clerk’s office thereby creating
a child support lien, the constable may seine all of a child support
obliger’s nonhomestead real property and all of the obliger’s personal
property. Liiewise, if a claimant chooses to institute foreclosure
proceedings upon a child support lien predicated upon the Sling of an
abstract of judgment, the wnstable may seize all of a child support
obliger’s nonhomestead real property and all of the obliger’s personal
Property.
DAN MORALES
Attorney General of Texas
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WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Attorney General for Liigation
RENEAHICKS
State Solicitor
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