If Texas wins my unpaid-wage claim, can I collect on the state's lien myself?

Plain-English summary

When a Texas worker is owed wages, one option is to file a wage claim with the state instead of suing. In 1995 those claims went to the Texas Employment Commission, which would decide the claim and, if the employer owed wages or a penalty and did not appeal, end up holding a lien on the employer's property and a "notice of assessment" that worked like a court judgment, both filed in the name of the State of Texas. The head of the commission asked the Attorney General two practical questions: could the State assign or transfer that lien or notice to the worker so the worker could chase the money personally, and if not, could the worker still go enforce the state-held lien on his own?

The office answered no to both. On assignment, it explained that a state agency has only the powers the legislature gives it, expressly or by necessary implication, and nothing in chapter 61 of the Labor Code authorized the commission to give away its liens or notices of assessment. Handing them off would mean the commission relinquishing its own interest, and doing that without first collecting the wages owed would be such a departure from the statute that it would need new legislative authority. The office pointed out that chapter 61 spells out the state's own enforcement path instead: the attorney general or the commission may sue in Travis County to enforce an unappealed final order, an unappealed notice of assessment is recorded and enforced like a district court judgment, and the commission releases the lien once the debt is paid. It also noted that the tax-lien rules borrowed into chapter 61 (Tax Code chapter 113) provide for assigning judgments that foreclose tax liens, and a separate Tax Code provision allows assigning state tax claims when the assignee pays the taxes, but none of those fit the kind of no-payment assignment the commission was asking about. Had the legislature wanted to allow it, the office said, it would have said so.

On the worker's own enforcement, the office said the same statutes set the exclusive procedures, and section 61.082 places the duty and authority to enforce the liens on the commissioner. For a lien, only the lienholder (here, the State) can get execution; for a notice of assessment that has become the equivalent of a court judgment, only the owner of the judgment (again, the State) can obtain a writ of execution. So a worker for whose benefit the State held the lien or notice could not personally levy on it. In a footnote, the office added a constitutional reason: assigning a lien or notice that included penalty amounts owed to the commission, without payment, would run up against the constitution's ban on gifts of public assets (article III, section 51), another sign the legislature would have spelled out any such transfer if it intended one.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas Employment Commission described here was reorganized in the mid-1990s, and the wage-claim functions moved to the Texas Workforce Commission. Chapter 61 of the Labor Code (the Texas Payday Law) and the Tax Code enforcement provisions it borrows have been amended since 1995. The opinion also notes that chapter 61 was freshly recodified in 1993, with overlapping amendments that had to be reconciled. Read this page for the office's 1995 reasoning, and verify the current Labor Code and the current agency's procedures before relying on any specific rule or deadline.

What the opinion meant at the time

For the Texas Employment Commission (the requestor): The opinion told the commission it could not lighten its collection workload by assigning unpaid-wage liens or notices of assessment to the workers who filed the claims. The statute gave the commission enforcement tools but not the power to give the liens away.

For workers owed wages: The opinion meant a worker who won a wage claim could not take over the state's lien or assessment and collect on it personally. Collection stayed with the commission, which would use the statutory enforcement methods and then pay the worker what it recovered.

For employers who owed wage judgments: The opinion confirmed that enforcement would come from the State through the statutory channels, not from a private assignee stepping into the State's shoes.

Common questions

Could the Texas Employment Commission assign my wage-claim lien to me?
No. Under this 1995 opinion, the commission had no statutory authority to transfer or assign a chapter 61 lien or notice of assessment to the wage claimant.

Could I enforce the state's lien myself if the commission held it?
No. Only the lienholder, the State, could get execution on the lien, and only the owner of a judgment-equivalent notice of assessment, again the State, could obtain a writ of execution.

Why couldn't the commission just hand off the lien?
A state agency has only the powers the legislature grants it. Chapter 61 authorized specific enforcement methods but did not authorize giving away the state's liens, so doing so would require new legislation.

How does the State enforce these wage liens and notices instead?
The attorney general or the commission may sue in Travis County to enforce an unappealed final order, an unappealed notice of assessment is recorded and enforced like a district court judgment, and the commission releases the lien once the debt is fully paid.

Was there a constitutional problem with assigning the liens?
The office noted in a footnote that assigning a lien or notice including penalty amounts owed to the commission, without payment, could violate the constitutional ban on gifts of public assets (article III, section 51).

Background and statutory framework

Chapter 61 of the Labor Code lets most private employees file a wage claim with the commission. The commission issues a preliminary wage determination order (dismissing the claim or ordering payment, plus an administrative penalty for bad-faith nonpayment), which a party may contest by requesting a hearing; otherwise the preliminary order becomes the commission's final order. After a hearing, the commission enters a final order, and a party may seek judicial review by filing suit within the statutory period. If no appeal is taken and the employer owes wages or a penalty, the final order becomes a lien on the employer's property under section 61.081, administered and enforced like a tax lien under Tax Code chapter 113 (section 61.082) and recordable in the county clerk's "State Tax Liens" book (section 61.083). The commission may also serve a notice of assessment on a defaulting employer; if not contested within thirty days, it is treated as a final district court judgment.

The requestor noted that both the liens and the notices of assessment, though they identify the claimant and the wages due, are filed in the name of the State of Texas. The office held the commission could not assign or transfer them to the claimant. It relied on the settled principle that an administrative agency has only the powers expressly conferred or necessarily implied (citing Texas Jurisprudence on administrative law), and found no such power in chapter 61, even given the commission's general rulemaking authority in section 61.002. It contrasted the specific enforcement provisions the legislature did enact: suit by the attorney general or commission in Travis County (section 61.066), enforcement of notices of assessment like court judgments, and release of a paid lien (section 61.084). It distinguished the Tax Code provisions on assigning judgments that foreclose tax liens (Tax Code section 113.107(a)) and on assigning state tax claims upon payment (Tax Code sections 111.251-.255), noting neither matched a no-consideration assignment to a wage claimant. On the worker's own enforcement, the office found no authority for anyone but the lienholder or the judgment owner, the State, to execute, citing Texas Jurisprudence on liens and on enforcement of judgments. A footnote added that a no-payment assignment of liens or notices carrying penalty amounts owed to the commission would implicate the constitutional ban on gifts in article III, section 51. The opinion also explained, in a footnote, that chapter 61 had been recodified in 1993 from former V.T.C.S. article 5155, with a separate 1993 amendment to the old article that had to be given effect under Government Code section 311.031(c).

Citations

Statutory and constitutional provisions discussed:

• Labor Code ch. 61, subchapter D (wage claims), including § 61.002 (rulemaking), §§ 61.051-.066 (claim, hearing, and enforcement procedures), § 61.066 (suit to enforce), § 61.081 (lien), § 61.082 (administration as a tax lien), § 61.083 (recording), and § 61.084 (release on payment)
• Tax Code ch. 113, subchapters A and B; § 113.107 (assignment of judgments foreclosing tax liens); §§ 111.251-.255 (assignment of state tax claims upon payment)
• Government Code § 311.031 (effect of overlapping 1993 enactments)
• Texas Constitution art. III, § 51 (prohibition on gifts of public assets)

No cases were cited in this opinion; the office relied on the statutes and on secondary authorities (Texas Jurisprudence 3d on administrative law, liens, and enforcement of judgments).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0356
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0356.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 23, 1995

Mr. William Grossenbacher
Executive Director
Texas Employment Commission
101 East 15th Street
Austin, Texas 78778-0001

Opinion No. DM-356

Re: Authority of the Texas Employment Commission to transfer or assign a lien or notice of assessment based on unpaid wages, under chapter 61, Labor Code, to the wage claimant (RQ-745)

Dear Mr. Grossenbacher:

You ask with regard to wage claims made to the Texas Employment Commission (the "commission") under subchapter D (sections 61.051 - .066), chapter 61 of the Labor Code, for which the commission has issued "final orders" ordering payment by the employer, whether "the State of Texas [can] transfer or assign [a lien and/or] a Notice of Assessment based on unpaid wages to the wage claimant, so the claimant might pursue collection efforts on his own." By way of background we review the relevant provisions.

An employee, other than a public employee, may file a claim for unpaid wages with the commission. Labor Code §§ 61.003, .051. The commission analyzes the claim and issues a "preliminary wage determination order" either dismissing the claim or ordering payment of wages determined to be due and unpaid. The commission may include in the order an order to pay an administrative penalty if it determines the employer acted in bad faith in not paying the wages. Id. §§ 61.052-.053. Either party may request a hearing to contest a preliminary wage determination order. Id. § 61.054. The request for hearing must be made in writing not later than twenty-one days after the commission mails the parties notice of the preliminary order. Otherwise the preliminary order becomes "the final order of the commission for all purposes" including "judicial review . . . under [subchapter D]." Id. § 61.055. The employer is to pay the amount ordered, less valid, itemized deductions, to the commission by such twenty-first day after notice of the order was mailed. "Payment to the commission constitutes payment to the employee for all purposes." Id. § 61.056(b); Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834.[1]

If a hearing on the preliminary order is requested, the commission must notify the parties of the hearing by the twenty-first day after receiving the request, and conduct the hearing within forty-five days of such notice. Labor Code § 61.057. After the hearing, at which the commission may modify, affirm, or rescind its preliminary order, the commission enters an order for the payment of wages and penalty amounts determined due and mails notice thereof to the parties. The order becomes "final" fourteen days after it is mailed unless "a party to the appeal files a written motion for rehearing" or "the commission reopens the hearing" before that date; however, a party may file suit in the proper court to appeal the "final order" within thirty days after it was mailed. Id. §§ 61.059 - .062; Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834. In any case, if the commission's final order requires the employer to pay wages or a penalty, he is to pay such amounts to the commission within sixty days after the commission's order becomes final. Labor Code § 61.063; Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834. "Not later than the 30th day after the date on which a claim is finally adjudicated or otherwise resolved," the commission is to pay the claimant "wages collected under [subchapter D]" (presumably less any amounts remitted) along with any interest accrued. Labor Code § 61.064.

Your specific concerns are with situations where there is no court appeal of the commission's final order. "A final order . . . against an employer indebted to the state for penalties or wages, unless timely appealed," constitutes "a lien on all the property belonging to the employer." Id. § 61.081(a) (emphasis added). "The lien for an unpaid debt attaches at the time the order . . . becomes final." Id. § 61.081(b). Administration and enforcement of the lien by the commission is as for tax liens under chapter 113, subchapters A and B, Tax Code. Id. § 61.082. Liens may be recorded in the book entitled "State Tax Liens" kept by the county clerk. Id. § 61.083.

Also, pursuant to an unappealed final order, the commission may serve a "notice of assessment" on a defaulting employer, which "is prima facie evidence of the contents of the notice." Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834. The party served may contest the notice in court, but if he doesn't do so within thirty days of service, the notice "shall be treated as if it were a final judgment of a district court, and shall be recorded, enforced and renewed in the same manner." Id.

Noting that both "the administrative liens and Notices of Assessment presently being filed by Texas Employment Commission identify the claimant whose wage claim occasioned the final determination and order, as well as the amount of wages due, but [that] both the administrative lien and the Notice of Assessment are filed in the name of the State of Texas," your specific question, again, is whether "the State of Texas [can] transfer or assign [a lien based on unpaid wages and/or] a Notice of Assessment based on unpaid wages to the wage claimant, so the claimant might pursue collection efforts on his own."

In our opinion, such transfers or assignments were not contemplated by the legislature in the applicable provisions. Nor do we find any basis in those provisions from which commission authority to make such transfers or assignments can be reasonably derived. See 2 Tex. Jur. 3d Administrative Law § 11 (1979) (and authorities cited there) (state agency has only such powers as are expressly conferred on it by statute, together with those necessarily implied from powers and duties expressly given or imposed). By "transferring" or "assigning" the notices or liens, the commission would necessarily be relinquishing its interest in the liens or notices. Even though the commission has considerable authority under chapter 61, section 61.002 gives the commission authority to "adopt rules as necessary to implement" the chapter, we think that the department's disposing of its interest in and control over the notices and liens without having obtained the wages owed to the claimant would be such a departure from the actual provisions of chapter 61 as to require further legislative authorization for it to be a valid exercise of commission powers.

Chapter 61 makes specific provisions for the enforcement of the commission's final orders and the liens and notices of assessment derived from them. The attorney general or commission may bring suit in Travis County to enforce final orders from which no appeal has been taken. Labor Code § 61.066; Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834. Unappealed notices of assessment "shall be recorded, enforced, and renewed in the same manner" as "the final judgment of a district court." Id. "If the liability secured by the lien is fully paid, the commission shall mail a release to the employer." Labor Code § 61.084. Although the provisions of Tax Code chapter 113, subchapters A and B, applicable under section 61.082 to the commission's enforcement of its liens, provide for the assignment of "judgment[s] perpetuating and foreclosing . . . tax lien[s] for the amount of the taxes covered in the judgment," Tax Code § 113.107(a), they make no provisions for assignment or transfer of liens appropriate or applicable to the assignments and transfers you ask about, which we assume would not involve consideration, at least in amounts equal to the underlying debts. See also Tax Code §§ 111.251 - .255 (specific provisions for assignment of state tax claims upon payment by assignee of taxes, fines, penalties, and interest due).

Had the legislature intended to authorize the kinds of assignments or transfers you ask about, we think it would have specifically done so, in the manner that it has specified other means of enforcement of the liens and notices of assessment. Again we conclude that the commission lacks authority to transfer or assign a lien or notice of assessment based on unpaid wages, under chapter 61, to the wage claimant.

You also ask whether "a wage claimant for whose use and benefit the State of Texas [holds a lien or] has perfected a Notice of Assessment [is] precluded from pursuing on his own statutory and common law remedies to get execution on that [lien or] Notice of Assessment because it was created in the name of the State?" We assume that you are asking here about situations where the commission has not assigned or transferred the liens and Notices of Assessment to the employee/claimant. Also by "perfected a Notice of Assessment," we understand you to refer to a notice of assessment that, because it was uncontested or upheld after judicial review, is to be "treated as if it were the final judgment of a district court." See Act of May 21, 1993, 73d Leg., R.S., ch. 456, § 2, 1993 Tex. Sess. Law Serv. 1833, 1834.

With respect to liens, we find no authority for a person other than the "lienholder," here, the State of Texas, to "get execution" thereon. See 50 Tex. Jur. 3d Liens §§ 31-33 (1986) (and authorities cited there). Also, as discussed above, we believe that chapter 61 of the Labor Code and the provisions of chapter 113 of the Tax Code referenced there provide the exclusive procedures for enforcement of the liens in question. Section 61.082 imposes the duties and authority of enforcing these liens on the commissioner. Similarly, as for Notices of Assessment which have come to have the effect of court judgments, we find no authority for a person other than the "owner" of a judgment, here, the State of Texas, to obtain a writ of execution thereon. See 34 Tex. Jur. 3d Enforcement of Judgments § 6 (1984) (and authorities cited there).[3]

SUMMARY

The Texas Employment Commission lacks authority to transfer or assign a lien or notice of assessment based on unpaid wages, under chapter 61, Labor Code, to the wage claimant. The wage claimant may not directly get execution on a lien or notice of judgment held by the commission in the name of the state.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] The provisions of chapter 61, Labor Code, were recodified in 1993. Act of May 12, 1993, 73d Leg., R.S., ch. 269, 1993 Tex. Sess. Law Serv. 990. They formerly appeared as V.T.C.S. title 5155, which was repealed by the 1993 codifying act. Without reference to that repeal, another 1993 bill amended article 5155. Act of May 21, 1993, 73d Leg., R.S., ch. 456, 1993 Tex. Sess. Law Serv. 1833. Pursuant to Government Code section 311.031(c) the amendments must be given effect as part of chapter 61.

[3] Similarly, since assignment or transfer, without consideration, of liens and notices of assessment which included penalty assessments owed to the commission rather than the employee/claimant would clearly run afoul of constitutional prohibitions on grants, see Tex. Const. art. III, § 51, we think that the legislature would have specifically provided for the conversion of the interest from the lien or notice of assessment to be assigned or transferred had it contemplated such assignments or transfers.