Untitled Texas Attorney General Opinion ( 1971 )

November 22, 1971
Honorable Ned Granger Opinion No. M-1000
county Attorney
Travis County Courthouse Re: Questions involving
Austin, Texas interpretations of Article
5447, Vernon's Civil
Statutes, as amended, re-
quiring abstract of judgments
to show birthdate and driver'
license number of the Defen-
dant, if available to the
Clerk of the Court, and re-
Dear Mr. Granger: lated questions.
Your opinion request to this office concerning the above
questions is restated as follows:
1. Article 5447, Vernon's Civil Statutes, as last amended,*
provides in pertinent part that an abstract of judgment shall
show "(2)The birthdate and driver's license number of the defendant
if available to the Clerk of the Court." Your spedific questions
in this regard are, (a) to what extent should the Clerk attempt
to ascertain the birthdate and the driver's license number of the
defendant, and (b) if the information is not available, should
that fact be certified?
2.
Article 5447 further provides in pertinent part that the
abstract of judgment shall show "(4)The defendant's address if
shown in the suit in which the judgment is rendered, and, if not,
the nature of the citation and the date and place citation is
selved." You ask in this regard: (a) what is meant by "nature
of citation", (b) if the defendant is served by serving a
*Acts 62nd Leg., R.S., 1971, H.B. 967, Ch. 768. p. 2419
-4878-
Xonorable Ned Oranger, page 2 (M-1000)
registered agent, shall the abstract of judgment give the address
of the registered agent if the address of the defendant does
not appear, (c) is it sufficient for the abstract of judgment
to recite the county in which the citation is served or must the
street address also be given, and (d) if the pleadings cite one
address and the citation cites another, which address shall be
used in the abetract of judgment?
In Texas, no lien is created by the rendition of a judgment:
the creation of a judgment lien depends entirely upon compliance
with Texas statutes. Gullett Gin Company v. Oliver, 78 Tex. 102,
14 S.W. 451 (1890); Cheatham v. Mann, 133 S.W.2d 264 (Tex.Civ.
App., 1939).
Fixing of judgment lien is strictly construed under Article
5447 regulating abstracts of judgment. American Petroleum Exchange,
Inc. v. Lord, 399 S.W.2nd 213 (Tex.Civ.App., 1969, error ref., n.r.e.
Following the strict construction given to this statute by
the above authorities and the apparent intent of the Legislature
in adding these provisions by recent amendment to this Atii,cle,
we answer your question as follows:
1. The wording of the statute is mandatory and if the
information concerning the birthdate and the defendant's driver's
license number is available through any reasonable source, it
must be secured by the Clerk and it should appear in the abstract
of judgment) if such information is not reasonably available,
then the abstract of judgment should so recite.
2. The abstract of judgment must show the defendant's
address if it appears in any papers on file in the suit in which
judgment is rendered.
(a) If the defendant's name is not so shown,
then the abstract of judgment must show in what way,
manner or means and the date defendant was cited to
appear, and the place where citation was made, if
citation was made on defendant in person or upon a
registered agent.
Honorable Wed Granger, page 3 (M-1000)
(b) Where the address of the defendant is not
available to the Clerk in preparation of the abstract
of judgment the place must be shown where citation is
served.
A "place" is an open space, or square, in city
or town: a street, an area, a court, a private
residence, a terrace. 32A Words and Phrases 111;
also, Websters Third New International Dictionary,
p. 1727.
Under this definition of "place" it is apparent
that the abstract of judgment, where the defendant's
address is not available, should show the best
address available where citation is served.
Where the pleadings and the citation show two
different addresses of defendant, Article 5447(4)
requires the abstract of judgment to show the defendant's
address if shown in the suit (pleadings).
SUMMARY
If the information concerning the birth
date and the defendant's driver's license
number is available through any reasonable
source, it must be secured by the Clerk and
be included in the contents of an abstract of
judgment: if such information is not reasonably
available, then the abstract of judgment should
so recite.
-4880-
lionorable Ned Granqer, page 4 (M-1000)
The abstract of judgment must show the
defendant's address if it appears in any
papers on file in the suit in which judgment
is rendered. If the defendant's address is
not so shown then the abstract must show the
way, manner, and means defendant was cited to
appear, together with the date of citation.
If citation is made upon a registered agent for
defendant the place where citation was served
should be shown.
General of Texas
Prepared by Sam L. Jones
Assistant Attorney General
APPROVRD:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Mel corley
Jack Sparks
Robert Lemens
Gordon Cass
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-4881-