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ABSTRACTING MUNICIPAL COURT JUDGMENTS: A HEAVY LIEN ON DEFENDANTS

How many of us have been faced with a recalcitrant defendant who, despite numerous judgments pronouncing guilt, refuses to pay the fine? What is a City to do? Unfortunately, despite many remedies at our fingertips, the choices require the expenditure of time and money, some nominal, some excessive. The purpose of this article is to provide one low-cost, effective, civil alternative to capias pro fine warrants, to assist with the collection of municipal court judgments abstracting judgments. Article 45.047 of the Texas Code of Criminal Procedure expressly provides that a "justice or judge may order the fine and costs collected by execution against the defendant's property in the same manner as a judgment in a civil suit." An abstract of judgment is a time-honored civil remedy that places a judgment lien on the defendant's real property in any county where the abstract is properly recorded. Chapter 52.001, et seq., of the Texas Property Code governs the issuance and application of abstracting judgments. The purpose of abstracting a judgment is two-fold: 1) to create a statutory lien on property where none previously existed; and 2) to give notice of a pre-existing judgment lien on property. Since the judgment lien is purely statutory in nature, the provisions of the Texas Property Code must be strictly complied with before the lien is established. An abstract of judgment, if recorded and indexed in accordance with the Texas Property Code, constitutes a lien on the defendant's real property in any county where the abstract is properly recorded and indexed, including real property acquired after recording and indexing. Tex. Prop. Code, § 52.001 (West 2002) (emphasis added). It does not attach to personal property. Donley v. Youngstown Sheet & Tube Co., 328 S.W.2d 192, 197 (Tex. Civ. App. -- Eastland 1959, writ ref'd n.r.e.). This statutory judgment lien is superior to rights of subsequent purchasers and lienholders; therefore, it is critical to record the judgment once it has become final and the time for appeal has passed. The City Attorney or prosecutor may prepare the abstract of judgment. Tex. Prop. Code § 52.002(b). The abstract of judgment must contain the following information: · · · · · · the plaintiff's (the City) and the defendant's name; the defendant's birthdate and driver's license number, if available; the docket number; the defendant's address, or, the nature of the citation and the date and place of the service of citation; the date of the judgment; and the amount of the judgment and the balance due.

Tex. Prop. Code § 52.003(a) (1-6).1 Although optional, the City should also include its address and contact person in the abstract. Tex. Prop. Code § 52.003(b). The abstract must then be verified by Mandatory information not relevant to Class C misdemeanors are the balance due on child support arrearages and interest rate. Tex. Prop. Code, § 52.003(a) (7-8).

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the person who prepared the abstract. Tex. Prop. Code § 52.002(a). To be effective, the abstract must be properly indexed and recorded in any county in which the defendant holds title to real property, or where it is anticipated that the defendant will purchase property. Upon payment of the proper fee, the county clerk will immediately record the properly acknowledged abstract in the county judgment records, indicating the date and hour the abstract is received. Tex. Prop. Code § 52.004(a). The county clerk will, simultaneously with the recordation, alphabetically index the abstract in the judgment records, noting the plaintiff's name, the defendant's name and the volume and page number in the records where the abstract is recorded. Tex. Prop. Code § 52.004(b). Credits on or satisfaction of the judgment also shall be reflected on each recorded abstract. No lien is created unless the judgment is properly recorded and indexed. Alkas v. United Savings Ass'n of Texas, Inc., 672 S.W.2d 852, 859 (Tex. App. -- Corpus Christi 1984, writ ref'd n.r.e.). As the proponent of the abstract bears the burden of proof that all statutory procedures were followed, id., the City should confirm that all the information is included and that the abstract was duly and properly recorded and indexed in the county judgment records. There is no common law presumption that the public official properly performed his duties because of the specific statutory requirement relating to proof of indexing. Id. The process for abstracting a judgment is fairly straight-forward and uncomplicated. A properly recorded and indexed abstract constitutes a lien that continues for ten years; however, if the judgment becomes dormant, i.e., no execution on the judgment has been issued, the lien ceases to exist. Tex. Prop. Code §§ 52.001 and 52.006. Although the lien may be revived, the City should proceed with execution on the judgment either through a writ of execution or discovery in aid of execution, such as post-judgment interrogatories or a bill of discovery. The abstract is just the first step, albeit an important one to protect the City's interests; however, collection is never an easy process and requires methodical measures to hopefully reach a successful conclusion.

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