Untitled Texas Attorney General Opinion ( 1996 )

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DAN MORALES
ATTTORNEY
GENERAL May 2, 1996
The Honorable lames W. Carr Opinion No. DM-389
Lavaca County Attorney
Box 576, Second Floor Courthouse Re: Whether a county clerk must file
HakttsviUe, Texas 77964 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 %ials” in self-styled “common
law” courts of the movement’s invention, and attempting to the the “judgments” resulting
from those trials, and other such documents, including phaadings, in the law&l district and
county courts of this state.’ In the most recent reported instance, two individuals, at odds
with the federal Farmer’s Home Administration over a prior debt, filed false XC-1
financing statements against three United States Department of Agriculture employees
named as “debtors.” United Srales v. Greenstree~, 912 F. Supp. 224, 227 @I.D. Tar.
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 the Texas. Invariably, however, they indicate on their thee
%eveo examplesof the kind of “dommems”at issue are reproducedas appendicesto the court’s
decision in KimmelY. Bunter CountyApposal District, 835 S.W.2d 108, 109-115 flex. App.-Austin
1992, writ dian’d w.0.j.).
Gmenswetarguestha~heisof”Freunan chamcwand’ofthewhite
Preamble Citizemhip and not oae of the 14th Amendment legidated
enfranchiacdDC Facto eolomd races.” He furlher claims that he is a “white
Pxamble naturalsovereignCommonLaw De Ime Citizen of the Repubiiclstatc
of Texas.” As a msult, he concludesthat he is a wvereign, not subjectto the
jmhdiction of this Court.
Gmemlreet,912 F. Supp.at 228.
The Honorable James W. Carr - Page 2 @M-389)
the purported existence of the “common law wurts 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 shag 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 wurts 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 wurts
thereto.
These specifd courts, together with those statutory wurts which the legislature has
created, such as municipal courts, county wurts at law, and the various specialized courts
existing in the larger counties, wnstitute the only courts in which is vested the “judicial
power of this State.” Tex. Const. art. V, 3 1. No “common law wurt,” whether of the
so-called “‘Republic of Texas” or otherwise, is among those ordained by wnstitution or
statute.
Section 191.001(c), Local Govemment Code, provides: “The county clerk shag
record, exactly, without delay, and in the manner provided by this subtitle, the wntents 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 “wmmon law” wurt is not one
“that the clerk is authorized to record.” Section 192.001, Local Government Code, states:
“The wunty 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’
wurt is not one “that is required or permitted by law to be recorded.”
Fiiy, section 192.004, Local Government Code, provides: “The wunty clerk
shall record separately from a deed or other wnveyance 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 hen.” A purported lien from a “wmmon law” court
is not a lawful instrument and therefore cannot create a hen. In Bernard v. Crowell, 38
S.W.2d 912 (Tex. Civ. App.-San Antonio 1931, no writ), the wurt 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
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The Honorable James W. Carr - Page 3 @M-389)
belonging in the record of causes,” because a “common law” court is not a legally
wnstituted wutt 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 tiled 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 wnstitution or statute.) A
clerk should maintain a list of legitimate wurts ready at hand to assist in this
de-termination, 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
wnsequences that attach to the filing of fraudulent lien~.~ 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 fdings are denied, and that both state and
federal wnstitutional requirements are strictly observed. In some instances, it might be
newssary for prosecutorial officials to monitor filings to ensure compliance with the law.5
‘We note that if district and county clerks have aheady acammlated a numberof docoments
rrlatin~tothe~led”RepublicofTuas,~theymaykableto~oftheminaccorQnawith
the portionsof the recordsretentionstatotesthat relateto d+mction ofmcotds. See Local Gov? Cede
chs. 202 (terms under which local gowrmneotal mxwds may be demmycd), 203 (dnties of recotds
a&odiaWforlocalgovunmen tal bodies); see also Gov’t Code ch. 441, subch. J (revisions to local
gomnment ncords retention aebedulcs). We caution, bower, that local 0Bicials should oxacise
caution in this regard,since se&ion 552.351, GovernmentCode, createsa criminal offer&efor willfol
destructionof mcor4 i.e. not in compliancewith statotoryrcguitemont.
‘In 1995, the legislahue amended chapter9 of the Texas Uoiform commmial Code to add
section 9.412, which forbidsthe filing of a fraudulentlieo, curatesa cue of action in favor of the owner
of propertycovered by the fmodulendy filed fmancing statement,aod makes such iiliog a crimioal
o&me. See Bus. &Corn. Code5 9.412.
‘Individuals chiming to be Wizens” of the “Republicof Texas” leave no doubtthat they meen
business, sod they routinelyissoe public threatsto -bring down” govemment. Ioarecentaddresshefore
aboot 300 sopportets at the State Capitol, the “pnwisiooal xzmtary of defense” of the “kpoblic”
dcdarcd:
In abom two we&, we cmk op to the next rootui. When we start going
after...prsonalpropaty,it’sgoingtogctrealserious. Ifwehavotobringthe
whole govemmemto a halt in orderto get legal reviewbeforethe Legislaturem
they can determinetheir law&l status,we’ll do it.
Jeffry Needham, Republic Leaders Give Notice To Govcmor, IRS, SAN ANIDNIOEXPRESS-
NEWS,Mar. 19,1996, at 3B.
p. 2135
The Honorable James W. Carr - Page 4 @M-389)
JrMMARY
..,_
‘,.
A district or wunty clerk should not accept for tiling any
document that indicate-s on its face that it is to be fded 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 tilings
are denied, and that state and federal wnstitutional requirements are
strictly observed.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
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