In Interest of RCT (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. on motion for rehearing by
Frost) (CHILD SUPPORT CASE: retroactive child support, child support lien, federal tax refund
AFFIRMED AS MODIFIED: Opinion by Justice Frost
The retroactive child support awarded to Lynn in the Order is an amount that is
due and owing under section 157.312(d) of the Texas Family Code. It is, thus,
properly subject to the lien perfected by the Attorney General. The retroactive
support, however, does not satisfy the definition of past-due support under the
federal income-tax-refund-intercept statute. Therefore, the trial court did not err
in ordering the Attorney General to return the intercepted income-tax refund to
We modify the trial court's judgment by deleting the parts of the judgment ordering
the child-support lien vacated and ordering the Attorney General to vacate and
remove all liens attached against John's property as a result of the order to pay
retroactive child support. As modified, the trial court's judgment is affirmed.
Before Justices Anderson, Hudson and Frost
14-07-00642-CV In the Interest of R.C.T., L.J.T. and C.L.T.
Appeal from 311th District Court of Harris County
Trial Court Judge: Douglas C. Warne
Trial Court Cause No. 1998-50509
Opinion of April 7, 2009 Withdrawn; Affirmed as Modified and Opinion on Rehearing filed June 18, 2009.
O P I N I O N O N R E H E A R I N G
The motion for rehearing filed by the Attorney General of Texas is overruled. The court's opinion
issued April 7, 2009, is withdrawn, and this opinion is issued in its place.
The Attorney General appeals the trial court's order requiring it to (1) vacate and remove a child
support lien the Attorney General perfected under a Texas lien statute against an award of retroactive
child-support; and (2) return a federal income-tax refund intercepted from the United States
Department of the Treasury under 42 U.S.C. § 664(a). We hold that the retroactive support was an
amount due and owing under the Texas child-support-lien statute. This retroactive support, however,
was not past-due support as that term is defined under the federal income-tax-refund-intercept statute.
We thus modify the trial court's judgment to delete the parts ordering the lien removed and affirm the
trial court's order as modified.
I. Factual and Procedural Background
Lynn D. Torres and appellee John A. Torres were divorced in September 2000. The trial court
appointed Lynn as sole managing conservator and John as possessory conservator of their three
minor children, R.C.T., L.J.T., and C.L.T. The trial court also ordered John to pay $828 per month in
Almost four and a half years later, the Attorney General filed a proceeding to modify the child-support
order. The Attorney General sought an upward modification of the child support and requested that
the modification take effect retroactively upon the earlier of the date of service of citation on John or
John's appearance in the suit to modify, as permitted by section 156.401 of the Texas Family Code.
The trial court signed an agreed order in September 2006 (hereinafter the AOrder"). In the Order the
court found that, as of April 2005, John should have been paying child support of $1,340 per month
rather than $828 per month. The trial court also found that, as of January 2006, John should have
been paying $1,380 per month. Thus, the trial court calculated the amount of back or retroactive child
support to be $9,024. The agreed order provided that John could pay the retroactive amount in
monthly installments of $150 until Athe entire retroactive arrearage amount" is paid in full. Both Lynn
and John agreed to the terms of the order. The Attorney General approved the agreed order as to
form, but did not agree to the substance of the order.
The Attorney General then filed a child-support lien with the Harris County District Clerk for the amount
of unpaid retroactive support. The Attorney General also notified the United States Department of the
Treasury that John owed past-due support in an amount exceeding $500. The Department of Treasury
then informed John that his federal income-tax refund in the amount of $3,839 would be intercepted
and paid to the Attorney General as part of the debt John owed.
John filed a motion to vacate the lien. John alleged that the lien was invalid inasmuch as the parties
had agreed that the retroactive child support could be paid in monthly installment payments and John
was current on the installments. After a hearing, the trial court granted the motion to vacate the lien.
Although the agreed order identified the $9,024 owed by John as a Aretroactive arrearage amount,"
the trial court found that Athe retroactive child support in the [agreed order] is not child support
arrearages [sic]." At the hearing on the motion to vacate, the trial court reasoned that the retroactive
amount could not be considered an arrearage or delinquency because John had not failed to comply
with the payout schedule. The trial court further opined that allowing the Attorney General to enforce a
lien on the retroactive child support would discourage parties from entering agreed orders. The trial
court thus ordered the Attorney General to remove the lien and to disperse to John the $3,839 tax
refund that the Department of the Treasury had sent to the Attorney General. The Attorney General
now challenges the trial court's order.
II. Issues Presented
The Attorney General raises the following appellate issues:
1. Is unpaid retroactive child support an amount that is “due and owing," thus creating a child-
support lien, when the obligor is current in making court-ordered monthly payments on the retroactive
2. Is retroactive child support “past-due support," as defined by federal law, that may be collected
by offsetting a federal income-tax refund?
III. Standards of Review
Our decision as to the propriety of the trial court's order turns on the meaning of state and federal
statutory language. We review issues of statutory construction de novo. See Subaru of Am., Inc. v.
David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002); In re Smith, 260 S.W.3d 568, 572 (Tex.
App.- Houston [14th Dist.] 2008, orig. proceeding). In construing a statute, our objective is to
determine and give effect to the legislative intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d
525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the legislature used
in the statute and not look to extraneous matters for an intent not stated in the statute. Id. If the
meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain
meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997); In re Smith, 260 S.W.3d at 572. We must not engage in forced or strained construction;
instead, we must yield to the plain sense of the words the legislature chose. Id.
A. Did the trial court err in concluding that the retroactive support was not “due and
owing" under the Texas child-support lien statute?
Our resolution of the Attorney General's first issue depends on whether the retroactive child-support
amount awarded in the Order is an amount “due and owing" under the Texas child-support-lien
statute. John argues the retroactive amount does not give rise to a lien because he has complied fully
with the court's payout schedule. Based on the express language of the statute, we conclude that the
retroactive amount is an amount due and owing to Lynn, and thus results in a child-support lien,
regardless of whether John is current on the court-ordered payout schedule.
1. The retroactive child support is due and owing.
Section 157.312(d) of the Texas Family Code provides as follows:
A child support lien arises by operation of law against real and personal property of an obligor for all
amounts of child support due and owing, including any accrued interest, regardless of whether the
amounts have been adjudicated or otherwise determined, subject to the requirements of this
subchapter for perfection of the lien.
Tex. Fam. Code Ann. § 157.312(d) (Vernon Supp. 2008) (emphasis added).
We have located no cases construing the meaning of the words “due and owing" under the provisions
of this statute. In the absence of a statute or controlling case law defining the terms used in a statute,
we apply the ordinary and generally accepted common meaning of the words used. See Martin v.
Harris County Appraisal Dist., 44 S.W.3d 190, 194 (Tex. App.- Houston [14th Dist.] 2001, pet. denied).
The common meaning of the word “due" with regard to a debt is one that is “immediately enforceable"
or is “owing or payable; constituting a debt." Black's Law Dictionary 538 (8th ed. 2004). The word
“owing" is defined as “that is yet to be paid; owed; due." Id. at 1137.
The retroactive child-support amount of $9,024 awarded in the Order meets the common definition of
the word “due" because it is an amount that is presently enforceable. The trial court's order expressly
states that John owes Lynn $9,024 in retroactive support. This retroactive support represents the
amount of child support that John should have been paying since April 2005, for the support of his
children but had not paid. See Merriam Webster's Collegiate Dictionary 1065 (11th ed. 2003) (defining
retroactive as “extending in scope or effect to a prior time or to conditions that existed or originated in
the past."). The retroactive support is an amount of money awarded to Lynn that she is currently
entitled to possess.
The retroactive support also meets the common definition of the word “owing." Although John has paid
some of the retroactive support pursuant to the monthly-payout schedule, it is undisputed that the
balance of the retroactive amount remains unpaid. The retroactive support awarded in the Order is an
amount due and owing for purposes of section 157.312(d).
2. The payout schedule in the Order does not alter the meaning of the statute.
John argues that the retroactive amount awarded in the order cannot be due and owing under section
157.312(d) because he is in compliance with the payout schedule. We disagree. The fact that the
court allowed John to retire the debt by means of a payout schedule does not change the “due and
owing" nature of the debt. The payout schedule is simply one way that John is allowed to satisfy his
matured and enforceable debt.
In In re Dryden, the Corpus Christi Court of Appeals addressed the issue of permissible collection
efforts in light of a payout schedule. 52 S.W.3d 257, 259-60 (Tex. App.- Corpus Christi 2001, orig.
proceeding). The father owed child-support arrearages totaling over $90,000, and the trial court
ordered the amount to be paid by monthly payments of $400. Id. at 260. It was undisputed that the
father was in compliance with the repayment obligations. Id. Nevertheless, the mother initiated post-
judgment discovery and obtained a writ of execution to levy on personal property owned by the father.
Id. The father moved for a protective order to prevent any collection efforts so long as he was in
compliance with the monthly payout schedule set forth in the original judgment. Id. at 260-61. The trial
court granted the motion for protection and the mother sought a writ of mandamus. Id. at 261.
The Dryden court held that the payout schedule could not prevent execution on the judgment for
arrearage. Id. at 263. The court noted that “[t]he right to collect a money judgment by execution is
inherent in the judgment and does not depend on specific recitals." Id. The court further found that
the trial court could not preclude the mother from collecting the judgment simply because the father
was in compliance with the payout schedule. See id. The court explained that the payout schedule
merely gave the mother “two permissible options for collecting the more than $90,000 that [the father]
owed her for the support of their two minor daughters: (1) a $400 monthly payment toward the
arrearage until it is fully paid, and (2) a judgment for the entire amount, which may be collected using
all available post-judgment collection methods." Id. at 264 (footnotes omitted).
We agree with the Dryden court's reasoning. The payout schedule simply gave Lynn two permissible
options for collecting the retroactive child support she was entitled to receive under the Order. See id.;
see also Attorney General v. Wilson, 878 S.W.2d 690, 691 (Tex. 1994) (per curiam) (concluding trial
court erred in issuing order prohibiting Attorney General from abstracting a judgment for retroactive
child support so long as debtor timely made periodic payments). The existence of a payout schedule
does not preclude Lynn (or the Attorney General) from utilizing any available collection efforts, such as
a child-support lien.
3. The debt does not have to be an arrearage to meet the definition of “due and owing."
The trial court ordered the Attorney General to release the lien, reasoning that the retroactive support
was not an arrearage or delinquency. But section 157.312(d) does not require the debt to be an
arrearage in order for a lien to arise. In fact, the lien arises by operation of law for all amounts due and
owing, “regardless of whether the amounts have been adjudicated or otherwise determined." Tex.
Fam. Code Ann. § 157.312(d) (Vernon Supp. 2008). There is nothing in the Texas statute requiring
the debt to be an arrearage to trigger the attachment of the lien.
Our holding is supported by the legislature's 2001amendment of section 157.312(d). At that time the
legislature changed the statutory language from “overdue support" to amounts “due and owing."
Compare Tex. Fam. Code Ann. § 157.312(d) (Vernon Supp. 2008), with Act of May 15, 1997, 75th
Leg., R.S., ch. 420, § 2, 1997 Tex. Gen. Laws 1660, 1660, and Act of May 21, 1997, 75th Leg., R.S.,
ch.911, § 20, 1997 Tex. Gen. Laws 2864, 2868-69. With this amendment to section 157.312(d), the
legislature broadened the scope of the child-support lien statute to include all amounts of child support
due and owing, and not merely those amounts that are overdue. An amount of child support does not
have to constitute an arrearage before the lien arises under section 157.312(d).
John cites two cases in which the Texarkana Court of Appeals held that retroactive child support is not
an arrearage. See In re J.G.Z., 963 S.W.2d 144 (Tex. App.- Texarkana 1998, no pet.); see also In re
House, No. 06-99-00155-CV, 2000 WL 1238845 (Tex. App.- Texarkana Sept. 1, 2000, no pet.) (not
designated for publication). Those cases, however, were not decided under the Texas lien statute and
do not address whether a retroactive-support award is an amount Adue and owing" for purposes of
section 157.312(d). The cases address whether a retroactive child-support award constitutes a money
judgment for an arrearage. In re J.G.Z., 963 S.W.2d at 148; In re House, 2000 WL 1238845, at *2.
Because section 157.312(d) does not require a debt to be an arrearage before a lien can arise, the
Texarkana cases are inapplicable.
We hold that the trial court erred in granting John's motion to the extent that the trial court ordered the
child-support lien vacated and ordered the Attorney General to remove all such liens against John's
property as a result of the order to pay retroactive child support. Accordingly, we sustain the Attorney
General's first issue.
B. Did the trial court err in concluding that the retroactive support is not a past-due
amount under the federal income-tax-refund-intercept statute?
In the second issue, the Attorney General argues that, in addition to the lien, it is entitled to intercept
John's federal income-tax refund because the amount of retroactive child-support awarded meets the
federal tax-refund-intercept statute's definition of past-due support. We disagree. The federal statute
expressly states that it applies to a “delinquency." The language used in the federal statute is not as
broad as that used in the Texas lien statute. Because the retroactive child support owed by John is not
a delinquency, it does not meet the definition of past-due support.
Under federal law, a state IV-D agency may collect past-due child support through offsets of federal
income-tax refunds. See Social Security Act, 42 U.S.C. § 664 (2003). Section 664(a)(2)(A) of the
Social Security Act provides in pertinent part as follows:
Upon receiving notice from a State agency administering a plan approved under this part that a named
individual owes past-due support (as that term is defined for purposes of this paragraph under
subsection (c) of this section) which such State has agreed to collect under section 654(4)(A)(ii) of this
title, and that the State agency has sent notice to such individual in accordance with paragraph (3)(A),
the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid,
are payable to such individual (regardless of whether such individual filed a tax return as a married or
unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall
withhold from such refunds an amount equal to such past-due support, and shall concurrently send
notice to such individual that the withholding has been made . . . .
Social Security Act, 42 U.S.C. § 664(a)(2)(A) (2003). The term “past-due support" is defined as follows:
(1) Except as provided in paragraph (2), as used in this part the term “past-due support" means the
amount of a delinquency, determined under a court order, or an order of an administrative process
established under State law, for support and maintenance of a child, or of a child and the parent with
whom the child is living.
(2) For purposes of subsection (a)(2) of this section, the term “past-due support" means only past-due
support owed to or on behalf of a qualified child (or a qualified child and the parent with whom the child
is living if the same support order includes support for the child and the parent).
42 U.S.C. § 664(c).
In the statute, Congress does not define the term “delinquency." The Code of Federal Regulations
describes “past-due support" as “the amount of support determined under a court order . . . for support
and maintenance of a child or of a child and the parent with whom the child is living, which has not been
paid." 45 C.F.R. § 301.1. The Attorney General argues that reading the statute and the federal
regulation together leads to the conclusion that a state agency may intercept a federal income-tax
refund to offset an amount of child support that has been determined under a court order but not yet
paid. We disagree.
Although we have found no Texas cases addressing the definition of “delinquency" under section 664
(c), several other states have held that there must be a failure to comply with a prior court order to
permit interception of a federal income-tax refund. In Davis v. North Carolina Dep't of Human
Resources, a father was ordered to pay a certain amount each month in ongoing child support plus
another amount per month towards the repayment of arrearage owed for support of the child. 505 S.E.
2d 77, 78 (N.C. 1998). At the time the father received notice of the intercept of his federal income-tax
refund, he was in compliance with the court-ordered support obligations. Id. The Supreme Court of
North Carolina held that, under section 664(c), the state agency could not intercept the tax refund “until
the parent fails to pay currently due court-ordered support or reimbursement payments. . ." Id. at 79.
The court stated that a delinquency is “created by a default in performance, not merely by the
existence of an outstanding debt." Id. at 79; accord Gladysz v. King, 658 N.E.2d 309, 312 (Ohio Ct.
Similarly, in Laub v. Zaslavsky, a Pennsylvania intermediate appellate court addressed the definition of
“delinquency" under section 664(c) in a factual context nearly identical to the one at bar. See 534 A.2d
1090 (Pa. Super. Ct. 1987). In Laub, the non-custodial parent was ordered at the time of divorce to
pay child support for the couple's two children. See id. at 1091. Four years later, the custodial parent
sought and received an upward modification of the child-support obligation. Id. The modification was
made retroactive, such that “arrearages in the amount of $11,825 were immediately created." Id. The
parent was ordered to pay a certain amount each month towards the retroactive support in addition to
current child support. Id. at 1092. The Pennsylvania court held that the retroactive support did not
satisfy the definition of a “delinquency" under section 664(c) because the parent was in compliance
with the court's repayment order. Id. at 1093. After examining federal authorities addressing the
purpose behind the federal income-tax-intercept program, the court explained that “the federal
intercept program does not encompass situations where a parent has continually complied with his
child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive
effect of an order of support." Id.
We agree with the reasoning of the North Carolina and Pennsylvania courts and hold that under the
facts of this case, the Attorney General may not use the federal intercept program unless the obligor
fails to comply with the trial court's order of child support, thus creating a delinquency for purposes of
the federal statute.
The Attorney General relies on Mushero v. Ives, 949 F.2d 513 (1st Cir. 1991), as support for the claim
that retroactive support may be considered a delinquency. We do not find Mushero persuasive. In that
case, a father brought a class action alleging that his federal rights were violated by the state of
Maine's interception of his federal income-tax refund to satisfy his indebtedness for Aid to Families with
Dependent Children (“AFDC"). Maine had paid over $5,000 to the mother in AFDC aid. Id. at 514.
Maine then filed a proceeding against the father to determine the father's duty to reimburse the state
for the AFDC payments to the mother. Id. The father argued the state impermissibly was seeking
retroactive child support not recoverable under Maine law. Id. at 517. The First Circuit Court of
Appeals disagreed, holding that, under Maine law, all parents have a duty to support their children and
retroactive child support was thus available. Id. at 518B19. Because the amount sought by the state
as reimbursement for AFDC payments was an amount the mother would have been entitled to recover
from the father, the federal court found the father's federal rights were not violated. Id. at 519. Though
the result in Mushero was that a federal income-tax refund was properly withheld for repayment of an
amount analogous to retroactive child support, the court did not analyze whether a retroactive child-
support award satisfied the definition of “delinquency" under section 664(c).
Moreover, Mushero did not involve a situation in which the father was in compliance with a previous
court order of child support that had been retroactively adjusted upward. See id. at 514. The father in
Mushero had been voluntarily paying some child support, but not enough to cover his AFDC debt. Id.
Arguably, then, the father had been delinquent in his common law duty to provide support for his
children. See id. at 518 (stating that child- support duty exists whether or not a court or administrative
order exists establishing a formal obligation). Unlike the instant case, Mushero did not involve a father
that was in compliance with an existing court order of support.
In the motion for rehearing, the Attorney General urges this court to adopt the broader meaning of the
term “delinquency," as defined in the Sixth Edition of Black's Law Dictionary. In that edition,
“delinquency" is defined as “[f]ailure, omission, violation of law or duty. State or condition of one who
has failed to perform his duty or obligation." Black's Law Dictionary 385 (6th ed. 1990). According to
the Attorney General, John violated his duty of support by not voluntarily adjusting upward the amount
he was paying in support, based on the child-support guidelines found in the Texas Family Code. See,
e.g., Tex. Fam. Code Ann. §§ 154.125, 154.126, 154.128, 154.129 (Vernon 2008). We disagree.
Although the guidelines cited by the Attorney General provide guidance in calculating an amount that is
presumptively in the best interest of the child, the guidelines do not conclusively define the parent's
support obligation. The trial court may order a different amount if the evidence rebuts the presumption
that application of the guidelines is in the best interest of the child and justifies a variance from those
guidelines. Tex. Fam. Code Ann. § 154.123(a) (Vernon 2008). Multiple factors go into the
determination of whether application of the guidelines would be unjust or inappropriate under the
circumstances. See id. at § 154.123(b). Thus, a parent in John's position would not know how much
he had a duty to pay until an amount was specified in a court order. Even applying the Attorney
General's proffered definition of “delinquency," a delinquency may not be found where a parent is in
compliance with a court order of support but the support obligation is retroactively adjusted upward.
The Attorney General further argues on rehearing that under Chevron deference, we are bound by the
definition of past-due support found in the Code of Federal Regulations, 45 C.F.R. § 301.1, “requiring
only that the support be determined under a court order or administrative order, which has not been
paid." The definition of past-due support in section 301.1 is not controlling.
First, section 301.1 contains a general definition of past due support and does not define the term
“delinquency." It does not address a situation in which a parent has been in compliance with a child
support order and is found to owe more through a retroactive upward adjustment. A parent who has
not defaulted on the terms of a court order has not created a delinquency. Second, even if we were to
find an intent that the definition of “past-due support" found in section 301.1 should be applied to past-
due support for purposes of the income-tax-refund-intercept statute, such an interpretation would not
be entitled to Chevron deference. The definition found in section 301.1 omits the term “delinquency,"
contrary to the unambiguous language found in 42 U.S.C. § 664(c) (defining past-due support for
purposes of tax intercept statute as “the amount of a delinquency, determined under a court order. . .
."). Courts are not required to give deference to agency interpretations that contradict what Congress
has said because such interpretations are unreasonable. See Entergy Corp. v. Riverkeeper, Inc., 129
S. Ct. 1498, 1505 n.4 (2009).
We overrule the Attorney General's second issue and hold that the trial court properly ordered the
Attorney General to return John's federal income-tax refund.
The retroactive child support awarded to Lynn in the Order is an amount that is due and owing under
section 157.312(d) of the Texas Family Code. It is, thus, properly subject to the lien perfected by the
Attorney General. The retroactive support, however, does not satisfy the definition of past-due support
under the federal income-tax-refund-intercept statute. Therefore, the trial court did not err in ordering
the Attorney General to return the intercepted income-tax refund to John.
We modify the trial court's judgment by deleting the parts of the judgment ordering the child-support
lien vacated and ordering the Attorney General to vacate and remove all liens attached against John's
property as a result of the order to pay retroactive child support. As modified, the trial court's judgment
/s/ Kem Thompson Frost
Panel consists of Justices Anderson, Frost, and Hudson.*
 We note that the Texas Family Code specifically provides that Athe remedies provided by this
subchapter do not affect the availability of other remedies provided by law" and are in addition to any
other lien provided by law. Tex. Fam. Code Ann. § 157.312(b), (c) (Vernon Supp. 2008).
 Congress amended section 664(c) effective October 1, 2007. Because the amended version was
made effective after the signing of the Order at issue in this case, we cite the prior version of section
664(c). Nevertheless, the amendment did not substantively change the definition of “past-due
support." Compare 42 U.S.C. § 664(c)(1) (2003) with 42 U.S.C. § 664(c) (Supp. 2008).
 We acknowledge the Laub dissent's argument that the interception should be allowed because A[t]
he primary purpose of the federal income tax refund intercept program is not to regulate or punish the
parent's conduct. Rather, the objective of the program is to ensure that a child who is entitled to
financial support from his parent in fact receives that support." Laub, 534 A.2d at 1095 (Johnson, J.,
dissenting). The statute, however, expressly provides that it applies to a “delinquency." Thus, we are
constrained to hold that, where a court order of child support is in place and the parent has not failed
to comply with that order, a federal income-tax refund may not be intercepted.
 See Chevron U.S.A Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S. Ct. 2778,
81 L. Ed. 2d 694 (1984) (providing that, in certain circumstances, a court should not substitute its own
construction of a statutory provision, but rather should defer to a regulatory agency's reasonable
interpretation of a statute).
Senior Justice J. Harvey Hudson sitting by assignment.