Texas law specifies that a court may order that costs and attorneys’ fees be withheld in addition to the actual child support amount, and may also order that these attorneys’ fees be paid directly to the attorney. In this case, the 2011 and 2013 garnishment orders materially differ from the terms of the 2001 order by adding a payee other than the attorney and will not be honored by the agency.

QUESTION

You asked whether the agency may garnish number holder (NH) A~’s ^[1] social security (Title II) benefits based upon a January 2010 judicial writ of withholding for attorney fees incurred in a child support action reduced to judgment in 2001.

SHORT ANSWER

The agency must honor the January 2010 garnishment writ because child support obligations under Texas law include payment of attorneys’ fees arising from enforcement proceedings. Additionally, the time lapse between the November 2001 order against the NH and the January 2010 garnishment writ did not affect the validity of the garnishment writ. However, the agency should not honor the 2011 or 2013 garnishment writs because the terms of these writs materially differ from the underlying 2001 court order. ^[2]

SUMMARY OF EVIDENCE

The Pecos County, Texas, District Court (court) issued a decree of divorce between the NH and R~ (R~) on December 19, 1978. Under this decree, the NH was obliged to pay $200 per month for child support until the court ordered otherwise. Pursuant to R~’s motion, the court issued an Order on Cumulative Money Judgment on November 20, 2001 (November 2001 order). The November 2001 order granted R~ a judgment of $77,112.43 against the NH for child support arrearages (including interest). The court also ordered the NH to pay attorney fees of $6,037.50 to S~ and K~ of S~ & B~, P.L.L.C., who represented R~ in her action to enforce the NH’s child support obligation. The November 2001 order provided that, the “attorney may enforce this order for fees in the attorney’s own name and such judgment bearing interest from the date this order is signed until paid.”

On January 21, 2010, the Texas court issued a judicial writ of income withholding (January 2010 writ) to the San Bernardino, California, District Office. The January 2010 writ identified the NH as the obligor and identified San Bernardino, California as his (then) current residence. The January 2010 writ directed the agency to withhold $9,751.06 to satisfy the NH’s obligation to pay attorneys’ fees under the November 2001 order. The January 2010 writ specified that the NH’s obligation to pay attorneys’ fees arose out of a judgment against the NH for child support arrearages, and ordered the agency to pay all withheld benefits to “S~ & M~.” Certified mail receipts confirm that the court clerk served the January 2010 writ on January 22, 2010, and that the San Bernardino office received this writ on January 25, 2010.

On February 11, 2011, the Texas court issued another judicial writ of income withholding (February 2011 writ) to the San Bernardino office. The 2011 writ ordered the agency to withhold $14,982.96 to satisfy the NH’s attorneys’ fees arrearages under the November 2001 order. The February 2011 writ further directed the agency to pay all withheld benefits to both R~ and the “Law Offices of S~ & M~.” Certified mail receipts confirm that the court clerk served the February 2011 writ on February 11, 2011, and that the San Bernardino office received this writ on February 14, 2011.

The Texas court again issued a judicial writ of income withholding to the agency on February 7, 2013 (February 2013 writ). This writ ordered the agency to withhold $18,114.58 to satisfy the NH’s obligation to pay attorneys’ fees under the November 2001 order. The February 2013 writ ordered the agency to make all payments of withheld benefits to both R~ and the “S~ Law Firm.” Certified mail receipts confirm that the court clerk served the February 2013 writ on February 8, 2013, and that the San Bernardino office received this writ on February 11, 2013.

ANALYSIS

1. A. 

   The Social Security Act and the Garnishment of Title II Benefits for Attorneys’ Fees Incurred in Connection with a Child Support Proceeding

   Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Under section 207(a) of the Act, 42 U.S.C. § 407(a), “none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process.” However, under section 459 of the Act, 42 U.S.C. § 659(a), the United States consented to withholding certain benefits, including Social Security benefits payable under Title II of the Act, to enforce an individual’s legal obligation to provide child support or alimony. Thus, the agency will honor legal process ^[3] directing garnishment of Title II benefits to enforce an individual’s legal obligation to provide child support. See Social Security Act § 459(a), (h)(1)(A)(ii), 42 U.S.C. § 659(a), (h)(1)(A)(ii); 20 C.F.R. § 404.1820(b), Program Operations Manual System (POMS) GN 02410.200.A. Because the term “child support” encompasses attorneys’ fees, garnishing for child support includes garnishing for attorneys’ fees incurred in connection with a child support proceeding. See Social Security Act §459(i)(2), 42 U.S.C. § 659(i)(2); 5 C.F.R. § 581.102(d); POMS GN 02410.200.E. According to these rules, the agency will withhold Title II benefits for attorneys’ fees incurred in connection with a child support proceeding when: 1) a court of competent jurisdiction issues an order expressly making such fees recoverable, and 2) the order is in compliance with applicable State law. See Social Security Act § 459(a), 42 U.S.C. § 659(a); 5 C.F.R. § 581.102; POMS GN 02410.200.

   The agency must be properly served with the garnishment writ in a manner provided by the applicable State law. POMS GN 02410.205.

2. B. 

   The Agency was Properly Served with the Garnishment Writs under Texas Law

   As a threshold matter, we must first determine whether the agency was properly served with the January 2010, February 2011, and February 2013 writs. To determine whether an income withholding order has been properly served, the agency analyzes the law of the state that issued the order. See POMS GN 02410.200.B; PR 04505.048 (analyzing garnishment for attorney fees under Texas law). Because the court that issued the three garnishment writs is located in Texas, we look to Texas law to determine whether the agency was properly served.

   Under Texas law, a district court clerk must serve the writ on the employer (or government agency), by first class mail, certified or registered mail, electronic transmission, or service of citation. See Tex. Fam. Code Ann. § 158.105; see also Tex. Fam. Code Ann. § 101.012 (defining employer to include governmental entities); POMS PR 04505.048. Agency policy designates any field office or program service center as the proper component to receive service. See POMS GN 002410.205.A; POMS PR 04505.048.

   Here, the Texas court clerk properly served each garnishment writ. The documents you provided us show that the court clerk sent each garnishment writ to the San Bernardino office via certified mail and each order is presumptively valid. See POMS GN 00301.045.B.1.a (the agency presumes that extract records received directly from public entity are valid, even if uncertified).

3. C. 

   Garnishment of Title II Benefits to Enforce the NH’s Legal Obligation to Provide Child Support is Appropriate under Texas Law

   In addition to the service requirement, Texas law must allow garnishment of Title II benefits to enforce payment of child support. See Social Security Act § 459, 42 U.S.C. § 659(a); POMS GN 02410.200.

   Texas authorizes a court of competent jurisdiction to order the withholding of income from the disposable earnings of an obligor in proceedings to enforce child support payments. See Tex. Fam. Code Ann. § 158.001; Tex. Fam. Code Ann. § 158.003 (permitting additional withholding for arrearages); Holmes v. Williams, 355 S.W.3d 215, 219 (Tex. App. 2011) (upholding district court’s jurisdiction to issue child support enforcement orders).

   Under Texas law, “earnings” includes payments made under a disability or retirement program. Tex. Fam. Code Ann. § 101.011; see also Tex. Fam. Code Ann. § 101.010 (defining “disposable earnings” as the “earnings of an individual remaining after the deduction of any amount required by law to be withheld, union dues, nondiscretionary retirement contributions, and medical, hospitalization, and disability insurance coverage for the obligor and the obligor’s children”). Tex. Fam. Code Ann. § 154.062(b) (a court shall consider net resources, including Title II benefits, to determine child support liability).

   Here, the court issued the January 2010, February 2011, and February 2013 writs pursuant to the November 2001 order enforcing the NH’s child support obligations. Furthermore, under Texas law, the NH’s Title II benefits are subject to withholding in order to fulfill his child support obligations. Consequently, through the three garnishment writs, the court appropriately ordered the withholding of the NH’s Title II benefits to satisfy his child support obligations.

4. D. 

   Garnishment of Title II Benefits for Attorneys’ Fees Incurred in a Child Support Proceeding is Appropriate under Texas Law

   Although attorneys’ fees are not included in the definition of child support, Texas law includes many express provisions regarding attorneys’ fees associated with enforcement actions brought by the person owed child support. Texas law specifies that a court may order that costs and attorneys’ fees be withheld in addition to the actual child support amount, and may also order that these attorneys’ fees be paid directly to the attorney. See Tex. Fam. Code Ann. § 158.0051(a), (c) (providing that the court “shall order that amounts withheld for fees and costs under this section be remitted directly to the person entitled to the ordered attorney’s fees”). When the obligor fails to timely pay attorneys’ fees incurred in a child support enforcement action, the district court clerk may issue a judicial writ of withholding at the request of the obligee’s attorney. See Tex. Fam. Code Ann. §§ 101.0161, 158.0051, 158.301, 158.302, 158.314. A withholding order or writ binds any employer (or government entity) doing business in Texas. See Tex. Fam. Code Ann. §§ 158.010, 158.201.

   Texas law also directs that child-support related attorney fee judgments may be enforced in the same manner as child support judgments. See Tex. Fam. Code Ann. § 157.167(a); accord Overton v. Overton, No.  14-09-00865-CV, 2011 WL 398046, at *6 (Tex. App. Feb. 8, 2011). Texas courts have broadly construed Tex. Fam. Code Ann. § 157.167 as establishing that attorneys’ fees incurred in connection with a child support enforcement proceeding are actually “assessed as child support.” See Overton, 2011 WL 398046, at *6, n.14 (citing Finley v. May, 154 S.W.3d 196, 199 (Tex. App. 2004)).

   Here, the November 2001 order directed the NH to pay attorneys’ fees that R~ incurred in enforcing the NH’s child support obligation. The November 2001 order further instructed the NH to pay R~ attorneys’ fees directly to her attorneys. Pursuant to the November 2001 order, the court clerk issued the January 2010, February 2011, and February 2013 Writs. Because these writs were consistent with Texas law regarding delinquent attorneys’ fees, and validly issued by the district court clerk, we conclude that each writ ordering the withholding of the NH’s Title II benefits was a valid means of enforcing the NH’s obligation to pay R~’s attorneys’ fees.

5. E. 

   The Agency May Withhold the NH’s Title II Benefits Based on the January 2010 Writ; the Agency Cannot Withhold the NH’s Title II Benefits Based on the February 2011 and February 2013 Writs

   We further examined Texas law to see if any other provision bars the agency from honoring these garnishment writs. We considered whether: 1) the court had jurisdiction to issue the November 2001 order; 2) the November 2001 order was dormant when the court clerk issued the writs; 3) an amendment to Texas law permissibly applied in this case; and 4) the writs were consistent with the November 2001 order.

   1. 1. 

      The Court Had Jurisdiction to Issue the November 2001 Order

      We first looked at whether the court properly issued the November 2001 order. The court issued the November 2001 order in response to R~’s September 10, 2001, Motion for Cumulative Judgment of Child Support Arrears and Petition for Suspension of Licenses for Failure to Pay Child Support (September 2001 motion). The relevant statute in effect when R~ filed the September 2001 motion provided that the district court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, had been paid. See Texas Fam. Code Ann. § 157.005(b) (1999). Thus, the court had jurisdiction to issue the November 2001 Order. ^[4]

   2. 2. 

      The November 2001 Order Was Not Dormant When the Court Issued the January 2010, February 2011, and February 2013 Writs

      We next considered whether the November 2001 order was dormant when the court issued the January 2010, February 2011, and February 2013 writs. Under Texas law, an order or writ for income withholding “may be issued until all child support arrearages, interest, and any applicable fees and costs, including ordered attorney’s fees and court costs, have been paid.” Tex. Fam. Code Ann. § 158.102. Although Texas law generally requires a party to collect upon a judgment within ten years of its issuance, there is a statutory exemption for child support judgments. See Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a), (c). ^[5] Thus, because the NH still had arrearages on attorney’s fees, the November 2001 order remained in effect when the court issued the January 2010, February 2011, and February 2013 writs. ^[6]

   3. 3. 

      The January 2010 Writ Was Consistent with the November 2001 Order; the February 2011 and February 2013 Were Not Consistent with the November 2001 Order

      Finally, we considered whether the language of the January 2010, February 2011, and February 2013 writs was consistent with the November 2001 order’s language awarding attorneys’ fees.

      Texas trial courts retain inherent judicial power and statutory authority to enforce their orders and decrees. See Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982); see also Tex. R. Civ. P. 308 (stating that the court “shall cause its judgments and decrees to be carried into execution”). However, after the appeal period expires, Texas law provides that a court’s enforcement order “must be consistent with the original judgment and ‘must not constitute a material change in substantial adjudicated portions of the judgment.’” Holland v. Holland, 357 S.W.3d 192, 198 (Tex. App. 2012) (citing Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App. 1993)). Consistent with these general principles, when a court orders income withheld to satisfy ordered attorneys’ fees related to child support enforcement, the court “shall order that [the attorneys’ fees] withheld . . . be remitted directly to the person entitled to the ordered attorney’s fees…” See Texas Fam. Code Ann. § 158.0051(c) (emphasis added).

      Here, the November 2001 order awarded attorneys’ fees payable directly to attorneys “S~ & K~, at S~ & B~, P.L.L.C.,” and stated that the attorneys could enforce the order for attorneys’ fees in their own names. The January 2010 writ directs the agency to make payment only to “S~ & M~.” While the January 2010 writ’s direction to make payment to “S~ & M~” is not identical to the November 2001 order’s underlying award of attorneys’ fees to “S~ S~& K~ M~, at S~ & B~, P.L.L.C.,” we conclude that this minor variation is not a material change in the substantive judgment because the January 2010 writ clearly directs the agency to make payment to R~’s attorneys – as the November 2001 order also requires. See Holland, 357 S.W.3d at 198; Texas Fam. Code Ann. § 158.0051(c). Therefore, we conclude that the January 2010 Writ complies with Texas law’s requirement that a writ must be consistent with the underlying order, and that the agency may withhold benefits based on this writ.

      However, the agency may not withhold benefits based on the February 2011 and February 2013 writs because these writs are not consistent with the November 2001 order in that they add the children’s mother as an additional payee. The February 2011 writ directs the agency to make payments to “R~ and the Law Offices of S~ & M~,” while the February 2013 writ directs the agency to make payment to “R~ and the S~ Law Firm.” Because the February 2011 and February 2013 writs order payment to both R~ and her attorneys, they are inconsistent with the November 2001 order’s award of attorneys’ fees only to “S~ S~ & K~ M~, at S~ & B~, P.L.L.C.” Therefore, we conclude that the agency should not withhold benefits based on the February 2011 and February 2013 writs ^[7] See Holland, 357 S.W.3d at 198; Texas Fam. Code Ann. § 158.0051(c).

CONCLUSION

The agency must garnish the NH’s Title II benefits pursuant to the January 2010 writ because it was properly served on the agency, issued by a court of competent jurisdiction, and consistent with all relevant aspects of Texas law.

The agency may not, however, garnish the NH’s benefits pursuant to the February 2011 and February 2013 writs. While these writs were properly served on the agency and issued by a court of competent jurisdiction, they materially differ from the terms of the 2001 order by adding an additional payee.

While an order of garnishment may include other related costs, including attorney’s fees, in this case the court’s writ is inconsistent with the court’s underlying award of attorney fees and the requirements of Texas law. The agency may not garnish benefits for attorney fees in this case.

QUESTION PRESENTED

You asked whether the Social Security Administration (agency) may garnish a number holder’s (NH) benefits based on a judicial writ of withholding for attorney fees awarded an attorney. The attorney represented a custodial spouse who prevailed in a child support enforcement action and received a cumulative money judgment.

ANSWER

We conclude that the agency may not garnish benefits in this case. As we previously concluded,^[8] under Texas law, the agency may garnish a NH’s benefits for attorney fees incurred in a child support enforcement action through a judicial writ of withholding. In this case, however, the court’s writ is inconsistent with the court’s underlying award of attorneys’ fees and the requirements of Texas law, and thus the agency may not properly garnish benefits.

BACKGROUND

On December 7, 2004,^[9] the District Court for the 57th Judicial District located in Bexar County, Texas (court), issued an Order on Cumulative Money Judgment (December 2004 Order) in the case of In the Interest of Theresa V. A~, Dave A~, Jr. & Andrea N. A~, Minor Children, Cause No. 75-CI-13897. The December 2004 Order granted Petitioner Velia a money judgment for child support arrearages in the amount of $41,441.95 as of October 30, 2003, against Respondent D~. (NH). In its December 2004 Order, the court ordered the NH to pay attorneys’ fees in the amount of $5,805.00 plus interest directly to attorneys S~ and K~ of S~ & B~, P.L.L.C. The December 2004 Order stated that the attorneys could enforce the order for attorneys’ fees in the attorneys’ own names and that the judgment would bear interest at the maximum rate provided by law from the date the order was rendered until the judgment was paid. ^[10]

As part of the December 2004 Order, the court issued a judicial writ of withholding against the NH’s present and subsequent employers (December 2004 Writ). The December 2004 Writ directed the NH’s present and subsequent employers to withhold $200.00 per month from the NH’s earnings, beginning December 1, 2003, to satisfy the NH’s child support arrearages. The December 2004 Writ did not direct the NH’s present or subsequent employers to withhold the NH’s earnings for attorney’s fees.

On March 5, 2013, the Bexar County District Clerk issued a Judicial Writ of Income Withholding (March 2013 Writ) based on the December 2004 Order. The March 2013 Writ directed the agency to withhold $9,208.03 in attorneys’ fees from the NH’s Title II retirement benefits. The March 2013 Writ identified Velia as the Obligee, and ordered the agency to make payment to Velia and the S~ Law Firm. On March 5, 2013, the Bexar County District Clerk served the March 2013 Writ on the agency via certified mail, return receipt requested, to the Albuquerque, New Mexico, Field Office. ^[11]

ANALYSIS

Garnishment of Social Security Benefits for Attorneys’ Fees Incurred in Connection with a Child Support Proceeding

Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Section 407(a), title 42 of the United States Code expressly provides that “[t]he right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. §§ 407(a), 1383(d)(1); ^[12] 20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented to withholding certain benefits (including, e.g., Social Security benefits) to enforce an individual’s legal obligation to provide child support or alimony. See 42 U.S.C. § 659(a). Thus, courts may order, in certain instances, garnishment of Social Security benefits to enforce an individual’s legal obligation to provide child support. See 42 U.S.C. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) General (GN) 02410.200A.

The term “child support” encompasses attorneys’ fees, rendering the rules applicable to withholding for child support also controlling with respect to withholding for attorneys’ fees incurred in connection with a child support proceeding. See 42 U.S.C. § 659(i)(2); 5 C.F.R. § 581.102(d). Under those rules, the agency will only withhold benefits for attorneys’ fees incurred in connection with a child support proceeding when: 1) it receives legal process that a court clearly issued to enforce an obligation to pay the attorneys’ fees; and 2) state law allows withholding of such benefits. See 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b).

Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, and issued by either (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); accord 5 C.F.R. § 581.102(f). After receiving a garnishment order, the agency must review the order to determine whether garnishment is appropriate. See 42 U.S.C. § 659(a); POMS GN 02410.210A1.

The December 2004 Writ does not direct the agency, or any other employer, to withhold benefits to satisfy the NH’s judgment for attorneys’ fees. ^[13] As such, the December 2004 Writ is not a withholding order for attorneys’ fees and does not factor further in our analysis. Rather, we focus upon the March 2013 Writ and next look to whether Texas law allows withholding of Social Security benefits for attorneys’ fees incurred in connection with child support proceedings.

Texas Law Regarding Orders for Withholding of Attorneys’ Fees Incurred in Connection with a Child Support Proceeding

As discussed, Federal law renders attorneys’ fees subject to withholding by including them within a definition of child support. See 42 U.S.C. § 659(i)(2); 5 C.F.R. § 581.102(d). Next, we look to whether Texas law allows a court to order the withholding of attorneys’ fees incurred in connection with a child support enforcement action. At the threshold, Texas law authorizes a court of competent jurisdiction, such as a district court, as part of “a proceeding in which periodic payments of child support are ordered, modified, or enforced,” to order that income be withheld from an obligor’s disposable earnings. Tex. Fam. Code Ann. § 158.001; see also id. § 101.008 (defining “court” as, inter alia, district court); § 158.003 (permitting additional withholding for arrearages); Holmes v. Williams, 355 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (upholding jurisdiction of district court to issue child support enforcement orders).

Although not included in the definition of child support, Texas law specifies that a court may order that costs and attorneys’ fees be withheld in addition to child support, and that attorneys’ fees may be paid directly to the attorney. See Tex. Fam. Code Ann. § 158.0051(a), (c) (providing that the court “shall order that amounts withheld for fees and costs under this section be remitted directly to the person entitled to the ordered attorney’s fees”).^[14] In cases in which the obligor fails to timely pay attorneys’ fees incurred in a child support enforcement action, the district court clerk may issue a judicial writ of withholding. See id. §§ 101.0161, 158.0051, 158.314. Texas law explicitly authorizes a district court clerk to issue a judicial writ of withholding for delinquent attorneys’ fees incurred in connection with a child support enforcement action at an obligee’s attorney’s request. Tex. Fam. Code Ann. §§ 158.301(b)(5), 158.302, 158.314. A withholding order or writ binds any employer doing business in Texas. See id. §§ 158.010, 158.201.

Texas law also directs that judgments for attorneys’ fees, obtained in connection with a child support enforcement action, may be enforced in the same manner as child support judgments. See id. § 157.167(a); accord Overton v. Overton, No. 14-09-00865-CV, 2011 WL 398046, at *6 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, pet. denied) (unpublished). Texas courts have broadly construed Tex. Fam. Code Ann. § 157.167 as establishing that attorneys’ fees incurred in connection with a child support enforcement proceeding are actually “assessed as child support.” See, e.g., O~, 2011 WL 398046, at *6 & n.14 (citing Finley v. May, 154 S.W.3d 196, 199 (Tex. App.—Austin 2004, no pet.)).

Having determined that Texas law permits a district court clerk to issue a judicial writ of withholding for attorneys’ fees in the context of child support enforcement actions, we next analyze whether the March 2013 Writ was properly served on the agency. To determine whether an income withholding order has been properly served, the agency analyzes the law of the state that issued the order. See POMS GN 02410.200B; Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm.—MOS, Updates on State Law on Proper Service of Garnishments and Income Withholding Orders, at 2 (May 25, 2011). To achieve proper service of a judicial writ of income withholding under Texas law, a district court clerk must serve a certified copy of the writ on the obligor’s current or subsequent employer by first class mail, or if requested, by certified or registered mail, return receipt requested, by electronic submission such as electronic mail, or by facsimile transmission. See Tex. Fam. Code Ann. § 158.105(a), (b), (c); see also id. § 101.012 (defining employer to include government entities).^[15] Agency policy designates any field office or program center as the proper component to receive service. See POMS GN 002410.205A; Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm.—MOS, Updates on State Law on Proper Service of Garnishments and Income Withholding Orders, at 2 (May 25, 2011) (citing POMS GN 02410.205). In this case, the Bexar County District Clerk served the March 2013 Writ on the Albuquerque, New Mexico, Field Office by certified mail, return receipt requested. Thus, we conclude that the Bexar County District Clerk properly served the March 2013 Writ on the agency. ^[16] We also examined whether the court properly issued the December 2004 Order granting Petitioner Velia’s Motion for Cumulative Judgment. The relevant statute in effect when Petitioner argued her Motion for Cumulative Judgment, and at the time the court’s judgment became effective in October 2003, provided that the district court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, had been paid. See Tex. Fam. Code Ann. § 157.005(b) (1999). In 2005, the Texas Legislature amended section 157.005(b), in relevant part, to provide that a motion for enforcement requesting a money judgment for child support arrearages must be filed no later than the tenth anniversary after the date on which the minor child becomes an adult or on which the child support obligation terminates. See Acts 2005, 79th Leg. ch. 916, § 21, eff. Jun. 18, 2005. However, because the version of section 157.005(b) in effect at the time Petitioner filed her Motion for Cumulative Judgment, and at the time the court issued judgment, did not contain a time limit, we do not need to consider whether the Motion for Cumulative Judgment and December 2004 Order were timely under the current version of section 157.005(b). See Tex. Fam. Code Ann. § 157.005(b) (2009); see, e.g., Taylor v. Speck, 308 S.W.3d. 81, 85-87 (Tex. App.—San Antonio 2010, no pet.) (recognizing that the ten-year time limit in section 157.005(b) did not apply to motion for cumulative judgment filed before amendment’s effective date of June 18, 2005).

Additionally, we considered whether the March 2013 Writ was consistent with the court’s December 2004 Order awarding attorneys’ fees. Texas trial courts retain inherent judicial power and statutory authority to enforce their orders and decrees. See Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982); see also Tex. R. Civ. P. 308 (stating that the court “shall cause its judgments and decrees to be carried into execution”). However, after the appeal period expires, Texas law provides that a court’s enforcement order “must be consistent with the original judgment and ‘must not constitute a material change in substantial adjudicated portions of the judgment.” Holland v. Holland, 357 S.W.3d 192, 198 (Tex. App.—Dallas 2012, no. pet.) (citing Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App.—Houston [14th Dist.] 1993, no pet.)). When a court orders income withholding to satisfy ordered attorneys’ fees resulting from an action to enforce child support, the court “shall order that [the attorneys’ fees] withheld . . . be remitted directly to the person entitled to the ordered attorney’s fees. See Tex. Fam. Code Ann. § 158.0051(c) (emphasis added).

In this case, the March 2013 Writ directs the agency to make payment to “Velia and the S~ Law Firm.” However, as stated above, the December 2004 Order awarded attorneys’ fees directly to attorneys “S~ & K~, at S~ & B~, P.L.L.C.,” and it stated that the attorneys could enforce the order for attorneys’ fees in the attorneys’ own names. Because the March 2013 Writ’s order of payment to “Velia and the S~ Law Firm” is inconsistent with the underlying award of attorneys’ fees to attorneys “S~ & K~ , at S~ & B~, P.L.L.C,” and because Texas law requires that payment be ordered directly to the person entitled to the attorney’s fees, the agency should not withhold benefits based on the March 2013 Writ. See H~, 357 S.W.3d at 198 (a court’s enforcement order must be consistent with its original judgment); see also Tex. Fam. Code Ann. § 158.0051(c) (the court shall order that attorneys’ fees withheld be remitted directly to the person entitled to the ordered attorneys’ fees).

CONCLUSION

We conclude that the agency should not garnish the NH’s benefits pursuant to the March 2013 Writ. Although the Bexar County District Clerk properly served the March 2013 Writ on the agency, the March 2013 Writ’s order of payment to Velia and the S~ Law Firm is inconsistent with an award of attorneys’ fees solely to S~ and K~. Accordingly, the agency should not withhold benefits based on the March 2013 Writ..

Michael McGaughran

Regional Chief Counsel

By:__________________________

Whitney C. Livengood

Assistant Regional Counsel

Regional counsel received a request for a legal opinion on whether SSA should honor a September, 1994, child support withholding order served by a third party. 

The withholding order was not served upon the agency as directed in the Texas State law. Therefore, the agency has no responsibility to honor the withholding order due to improper service.

BACKGROUND

On September 9, 1994, a district court in Brazoria, County, Texas, issued an Order to Employer to Withhold Income From Disposable Earnings for Child Support in the case of Russell and Glynis and in the Interest of Jason , Case No. 82K0387. The order directed Russell’s (NH) employer to withhold $394 per month from the NH’s earnings for child support owed to Glynis (Obligee), on behalf of Jason (Child), born on April. The order specified, however, that the support payments were due only until the date of the earliest occurrence of one of the following events:

1. 1. 

   the child reaches the age of 18 years; provided that, if the child is fully enrolled in an accredited secondary school in a program leading toward a high school diploma, the period child-support payments shall continue to be due and paid until the end of the school year in which the child graduates;

2. 2. 

   the child marries;

3. 3. 

   the child dies;

4. 4. 

   the child’s disabilities are otherwise removed for general purposes;

5. 5. 

   the child is otherwise emancipated; or

6. 6. 

   further orders modifying this child support.

The NH became entitled to Title II disability insurance benefits in February 2008. In August 2011, SupportKids Services, Inc. (SupportKids), sent the agency a document entitled “Income Withholding for Support.” The document indicated that the NH was more than twelve weeks in arrears on his $394 monthly support obligation. The document also instructed the agency that it was “required by law to deduct [the money] from the employee/obligor’s income until further notice.” Upon request, SupportKids furnished the underlying 1994 court order, as the Office of the General Counsel (OGC) previously issued a formal legal opinion concluding that the agency could not garnish an individual’s benefits solely based on a demand from an organization such as SupportKids, the agency requested that SupportKids furnish the agency a copy of the 1994 court order. A Brazoria County district court clerk informed the agency that the 1994 court order has not been amended or terminated.

DISCUSSION

Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Section 407(a), title 42, United States Code, expressly provides that “[t]he right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a); 42 U.S.C. § 1383(d)(1); 20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented to withholding Social Security benefits to enforce an individual’s legal obligation to provide child support or alimony. 42 U.S.C. § 659(a). Thus, subject to the following rules, courts may order garnishment of certain benefits (including Social Security benefits) to enforce an individual’s legal obligation to provide child support. See id. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200A. The agency will only withhold benefits for child support when (1) it receives legal process that a court clearly issued to enforce an obligation to pay child support; and (2) state law allows withholding of such benefits. 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b).

Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, and issued by either (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f). After receiving a garnishment order, the agency must review the order to determine whether garnishment is appropriate. 42 U.S.C. § 659(a); POMS 02410.210A3. Because a Texas court issued the September 9, 1994, garnishment order, we look to Texas law to determine the order’s validity and effect. See 42 U.S.C. § 659(a); POMS 02410.200C & D, 02410.210A3.

We first look at whether the agency received legal process that a court clearly issued to enforce an obligation to pay child support. 42 U.S.C. § 659(a); 5 C.F.R. § 581.103; 20 C.F.R. §404.1820. As stated above, however, the agency honors only legal process that is directed to a government entity. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f). Legal process need not, however, expressly name the government entity as the garnishee in order to be considered “directed to” the government entity. 5 C.F.R. § 581.202(a). The agency declines to honor legal process directed toward a specific employer, but considers generic terms, such as “employer,” to be directed toward a government entity. POMS GN 002410.205. Moreover, the statute as a whole suggests that, if the order is properly served upon the governmental entity, the order should be considered “directed to” a governmental entity. Specifically, 42 U.S.C. § 659(b) establishes the consent of the United States to be treated as a “private person” with respect to notice of an order to enforce support obligations. See 42 U.S.C. § 659(b); see also Lang v. Soc. Sec. Admin., 612 F.3d 960, 965-66 (8th Cir. 2010) (noting the same and rejecting agency’s arguments that the federal rules of civil procedure should apply to service of process for matters falling under 42 U.S.C. § 659). Therefore, the 1994 court order can be considered “directed to” a government entity because the order was generic and did not specify any particular employer.

We next look to whether Texas allows the withholding of child support benefits. 42 U.S.C. §659(a); 5 C.F.R. § 581.102(g). Texas law authorizes a court of competent jurisdiction, such as a district court, or Title IV-D agency, ^[17] as part of “a proceeding in which periodic payments of child support are ordered modified, or enforced,” to order that income be withheld from the disposable earnings of the obligor. Tex. Fam. Code Ann. § 158.001; see also id. § 101.008 (defining “court” as, inter alia, district court); § 158.003 (permitting additional withholding for arrearages); Holmes v. Williams, 355 S.W.3d 215, 219 (Tex. App. 2011) (upholding jurisdiction of district court to issue child-support enforcement orders). A withholding order binds any “employer doing business in [Texas].” Tex. Fam. Code Ann. §§ 158.010, 158.201. Texas’s family code defines employer as “a person, corporation, partnership, workers’ compensation insurance carrier, government entity, the United States, or any other entity that pays or owes earnings to an individual.” Id. § 101.012. Upon receiving the withholding order or writ, an employer must continue to withhold income as the order or writ requires as long as the obligor is employed by the employer. Id. § 158.202. Moreover, Texas specifically includes Social Security benefits in its definition of income subject to withholding. Id. § 154.062(b). Accordingly, Texas law allows courts to order the withholding of Social Security benefits to satisfy child-support obligations.

We have observed in prior opinions that the agency specifically defers to state law to determine whether service of a garnishment order, such as an order for income withholding, is proper. See Updates on State Law on Proper Service of Garnishments and Income Withholding Orders – REPLY (May 25, 2011) (citing POMS GN 02410.205). To achieve proper service of an income withholding order upon an individual’s employer at the time the order is issued, the order must be served on the employer by the district court clerk. See Tex. Fam. Code Ann. § 158.105(a), (b), (c). With respect to subsequent employers, ^[18] after the district court clerk produces the writ, a party authorized to request the clerk for issuance of a writ of withholding, which includes a Title IV-D agency, attorney representing the local domestic relations office, attorney appointed friend of the court, obligor, obligee, or private attorney representing the obligor or the obligee, may issue a copy of the judicial writ of withholding to an obligor’s subsequent employer by certified mail. Tex. Fam. Code Ann. § 158.319(a). However, the judicial writ of withholding must “clearly indicate that the writ is being issued to a subsequent employer.” Id. § 158.319(b). Thus, the September 9, 1994, withholding order would be properly served upon the agency if it were served by the district court clerk for Brazoria County or if the order clearly indicated that it was issued to a subsequent employer. See id. §§ 158.105, 158.319. Here, however, SupportKids, and not the district court clerk, furnished the 1994 court order to the agency. SupportKids, based on its submission, is not even empowered to request the issuance of the withholding order by the district court clerk, see id. § 158.104, much less deliver the order itself. Consequently, the agency is under no obligation to withhold the NH’s benefits. Id. § 158.202 (establishing that “employer” need only withhold from earnings upon “delivery” of order or writ).

Even if the agency received proper delivery of the withholding order, the order likely would be subject to termination according to its own terms. The Child, born in 1981, has long since attained the age of 18 and there is no evidence showing that he is still in high school or on course to graduate high school. We have no evidence regarding whether he is married; dead; under a disability; or otherwise emancipated. Texas law does not definitively resolve whether an employer may cease withholding when the requirements for termination of the underlying court have been satisfied. Nevertheless, the statutory scheme and caselaw suggest that an order, writ, or notice of withholding remains effective until court or the Title IV-D agency properly revoke it. ^[19] Texas law provides specific methods for terminating a court order, writ, or notice of withholding and contemplates providing notice to the employer. ^[20]

CONCLUSION

The withholding order does not appear to have been served upon the agency and is, therefore, ineffective against the agency. While, if properly served, the court order to withhold income probably remains effective, the NH may be able to obtain termination of the withholding order by availing himself of the appropriate state remedies. Accordingly, the agency should not garnish the NH’s benefits until a court clerk or a proper party serves the withholding order upon the agency in the manner Texas law prescribes.

Michael McGaughran

Regional Chief Counsel

By:__________________________

Mark J. Mendola

Assistant Regional Counsel

An inquiry on whether the Social Security Administration can comply with a Texas court order of income withholding of Social Security benefits for “spousal maintenance.” While the Social Security Act uses the term “alimony,” the State of Texas uses the term “spousal maintenance” to describe payments made from one spouse to another upon the dissolution of a marriage. However, an underlying issue exists concerning Texas statue concerning the garnishment of Social Security benefits for spousal maintenance. Prior to September 1, 2011, Texas Family Code (Tex. Fam. Code) Ann. § 8.055, stated that “Social Security benefits and disability benefits . . . are excluded from maintenance,”  thereby precluding the garnishment of Title II benefits for spousal maintenance. 

The Texas legislature has subsequently made an amendment to Tex. Fam. Code Ann. § 8.055 in regard to the garnishment of Social Security benefits. Effective September 1, 2011, Texas will include the withholding of a number holder’s Social Security benefits for spousal maintenance pursuant to a valid income withholding order. This amendment is not retroactive and applies only to orders for spousal maintenance made effective September 1, 2011, or later.

The purpose of this memorandum is to respond to your request for a legal opinion asking whether the Social Security Administration (SSA) can comply with a Texas court order of income withholding of Social Security benefits for spousal maintenance. As we explain further in our opinion, while the Social Security Act uses the term “alimony,” Texas uses the term “spousal maintenance” to describe payments made from one spouse to another upon the dissolution of a marriage.   You asked whether Texas law had changed since 2007, when we issued an opinion finding that SSA could not honor a Texas court order of income withholding of Social Security benefits for spousal maintenance.  We conclude that, effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding of a number holder’s Social Security benefits for spousal maintenance. However, as discussed further below, because the change in Texas law does not apply retroactively, SSA cannot honor the instant order for spousal maintenance. 

The purpose of this memorandum is to respond to your request for a legal opinion asking whether the Social Security Administration (SSA) can comply with a Texas court order of income withholding of Social Security benefits for spousal maintenance. As we explain further in our opinion, while the Social Security Act uses the term “alimony,” Texas uses the term “spousal maintenance” to describe payments made from one spouse to another upon the dissolution of a marriage.   You asked whether Texas law had changed since 2007, when we issued an opinion finding that SSA could not honor a Texas court order of income withholding of Social Security benefits for spousal maintenance.  We conclude that, effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding of a number holder’s Social Security benefits for spousal maintenance. However, as discussed further below, because the change in Texas law does not apply retroactively, SSA cannot honor the instant order for spousal maintenance.    

BACKGROUND

On January 3, 2006, the 318th Judicial District Court in Midland County, Texas issued an Order of Income Withholding for Spousal Maintenance in the divorce suit styled In the Matter of the Marriage of Earnestine and Leroy, No. FM 43,741.  The order directed Leroy ’s (number holder) employer to withhold a monthly sum from Earnestine’s disposable earnings for spousal maintenance. Earnestine receives Title II retirement benefits. 

On August 3, 2007, we issued an opinion, addressing your question of whether SSA could honor the January 3, 2006, Order and permit garnishment of the number holder’s Title II benefits. The evidence submitted with this opinion request does not contain a copy of the January 2006 Order, but our August 2007 opinion states that the January 2006 Order directed “any employer of Leroy to withhold monthly amounts for spousal maintenance.” See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007).  Thus, the January 2006 Order did not specifically order the garnishment of Title II Social Security benefits. However, Texas law defines an “employer” to include the United States or any other entity that pays or owes earnings to an individual.  See Tex. Fam. Code Ann. § 101.012. Under Texas law, “earnings” includes a payment made under a disability or retirement program. Id. at § 101.011. Given these provisions, our August 2007 opinion concluded that, because the agency pays “earnings” to the number holder in the form of retirement benefits, the agency was considered the number holder’s “employer.”  See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy – REPLY (Aug. 3, 2007). We have reached the same conclusion in both prior and subsequent opinions. See, e.g., OGC Memorandum regarding Garnishment of Social Security Benefits for Child Support in Texas Using a Judicial Writ of Withholding pursuant to Tex. Fam. Code Ann. §§ 158.103-106 (Mar. 18, 2011); OGC Memorandum Regarding Proper Service of Income Withholding Orders on the Social Security Administration – REPLY (Jan. 9, 2007). However, we also note that the waiver of sovereign immunity permitting the withholding of Social Security benefits to enforce an individual’s legal obligation to provide child support or alimony does not apply to Title XVI Supplemental Security Income payments. See 5 C.F.R. § 581.104(j). Thus, only Title II benefits may be garnished if state law permits.  See OGC Memorandum regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy – REPLY (August 3, 2007). 

We interpreted Texas Family Code Ann. § 8.055 and determined that, under the law in 2007, Texas state law precluded such withholding. See id., p. 2. Thus, SSA could not honor the Midland County Court’s Order of Income Withholding for Spousal Maintenance.

On November 26, 2007, at Earnestine’s request, the Midland County Court issued a second Order of Income Withholding for Spousal Maintenance. Earnestine requested that the court reissue this order on December 22, 2010.  Thus, the November 26, 2007, order is the most recent order for spousal support in this matter.

On May 5, 2011, Earnestine’s attorney sent a letter to SSA requesting a status update on whether SSA would comply with the Midland County Court’s Order of Income Withholding for Spousal Maintenance. Based on OGC’s August 2007 opinion, on June 8, 2011, SSA issued a letter to Earnestine’s attorney reaffirming SSA’s position that Texas law precluded income withholding of the number holder’s benefits for spousal maintenance.  On June 17, 2011, and August 12, 2011, Earnestine’s attorney submitted letters to the Midland Field Office disagreeing with SSA’s position, arguing that Texas state law no longer precluded income withholding of the number holder’s benefits for spousal maintenance and referencing recent amendments to Tex. Fam. Code Ann. § 8.055. Below, we analyze the current state of Texas law on this issue.

DISCUSSION

Generally, the Social Security Act (Act) precludes garnishment of benefits to satisfy legal obligations. Section 407(a), title 42, United States Code, expressly provides that “[t]he right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a); 42 U.S.C. § 1383(d)(1); 20 C.F.R. § 404.1820(a). However, effective January 1, 1975, the United States consented to withholding certain benefits (including, e.g., Social Security benefits) to enforce an individual’s legal obligation to provide child support or alimony. 42 U.S.C. § 659(a). Thus, subject to the following rules, courts may order garnishment of Social Security benefits to enforce an individual’s legal obligation to provide alimony.  See 42 U.S.C. § 659(a), (h)(1)(A)(ii)(II); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200A.  SSA will only withhold benefits for alimony when 1) it receives legal process that a court clearly issued to enforce an obligation to pay alimony; and 2) state law allows withholding of such benefits. 42 U.S.C. § 659(a); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b). 

Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, This provision is silent as to whether “directed to” should be narrowly construed as requiring that the order be specifically addressed to the governmental entity, or whether the order must only be properly served on a governmental entity. However, other federal regulations indicate that “where the legal process is directed to, and the purpose of the legal process is to compel a governmental entity which holds moneys which are otherwise payable to an individual to provide child support of make alimony payments, the legal process need not expressly name the governmental entity as garnishee.” 5 C.F.R. § 581.202(a). This is consistent with the statutory language noting that each governmental entity consents to be treated as a “private person” with respect to notice of an order to enforce support obligations. See 42 U.S.C. § 659(b); see also Lang v. SSA, 612 F.3d 960, 965-966 (8th Cir. 2010) (noting the same and rejecting agency’s arguments that the federal rules of civil procedure should apply to service of process for matters falling under 42 U.S.C. § 659). Thus, while 42 U.S.C. § 659 requires only a limited waiver of sovereign immunity, it appears that sovereign immunity cannot be exercised in the event that the order does not expressly name a specific governmental entity as garnishee.  We have noted in prior opinions that SSA specifically defers to state law to determine whether service of a garnishment order, such as an order for income withholding, is proper. See Updates on State Law on Proper Service of Garnishments and Income Withholding Orders – REPLY (May 25, 2011) (citing Program Operations Manual System (POMS) GN 02410.205).  To achieve proper service of an income withholding order, the order must be served on the employer by the clerk of the court by certified or registered mail, return receipt requested. See Tex. Fam. Code Ann. § 8.154(b).  A copy of an order for income withholding may also be served upon a subsequent employer by any person authorized to file a notice of application for a writ of withholding – such as the obligee – provided that the copy is delivered via certified mail. See Tex. Fam. Code Ann. §§ 8.251, 8.267(a). Thus, the November 26, 2007 Order of Income Withholding was properly served upon SSA if it were served either by the clerk of court for Midland County by certified or registered mail, return receipt requested, or by Earnestine by certified mail. See Tex. Fam. Code Ann. §§ 8.154(b), 8.251, 8.267(a).  We do not have sufficient information regarding service to determine whether the November 26, 2007 Order of Income Withholding was properly “directed to” SSA.  However, because we conclude that the 2007 version of Texas law applies to this Order, we conclude that SSA cannot honor the November 26, 2007 Order regardless of whether service was proper.  and issued by either (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f). Because a Texas court issued the November 26, 2007 Order, we look to Texas law to determine whether this order constitutes legal process. See 42 U.S.C. § 659(a). 

Texas uses the term “spousal maintenance” instead of alimony to define an award of periodic payments from the future income of one spouse for the support of another spouse in a suit for the dissolution of a marriage. See Tex. Fam. Code Ann. § 8.001. Thus, an order to withhold income for “spousal maintenance” is an order issued to enforce an obligation to pay alimony. See Tex. Fam. Code Ann. § 8.051 (stating that, in a suit for dissolution of a marriage, a court may order spousal maintenance); see also Tex. Fam. Code Ann. § 8.101 (“a court may order that income be withheld from the disposable earnings of the obligor”).  A Texas district court, a court of competent jurisdiction to issue such orders, issued the November 26, 2007 Order. Tex. Fam. Code Ann. § 1.002 (for the purposes of the family code, “court” means a district court).  Accordingly, the November 26, 2007 Order constitutes legal process under the first prong of 42 U.S.C. § 659(a). 

We next look to the second prong of 42 U.S.C. § 659(a), whether Texas state law allows withholding of a number holder’s Social Security benefits for spousal maintenance.  We conclude that, effective September 1, 2011, Texas state law permits withholding of Social Security benefits for spousal maintenance. However, the Texas Legislature specifically determined that the change in the law applies only to a proceeding for spousal maintenance that commenced “on or after the effective date” of this change, September 1, 2011.  Thus, SSA can only honor a Texas order for income withholding if it stems from a proceeding for maintenance commenced after September 1, 2011. 

Section 8.055 of the Texas Family Code discusses the amount of maintenance a Texas court may order withheld to pay spousal maintenance. In August 2007, section 8.055 allowed a Texas court to order spousal maintenance requiring a number holder to pay the maximum of either a $2,500 lump sum or 20 percent of the number holder’s average monthly gross income. See Tex. Fam. Code Ann. § 8.055 (Vernon 2007).  Section 8.055 defined “gross income” as those resources defined in Tex. Fam. Code § 154.062. See id at § 8.055(c) (2007). Section 154.062 addresses child support obligations and stated that the resources used to calculate an obligor’s child support liability included Social Security benefits. Tex. Fam. Code Ann. § 152.062(b) (Vernon 2007). However, section 8.055 also included a separate provision stating that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007) (emphasis added). Thus, in 2007, the Texas Legislature included Social Security benefits in the definition of “gross income” to calculate the amount that could be withheld for spousal maintenance payments, but specifically excluded Social Security benefits from spousal maintenance. See id. at §§ 8.055(c), 152.062(b) (2007). 

Although these provisions appear contradictory on their face, the Texas Legislature specifically directed that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007).  Thus, the plain language of the statute isolated Social Security benefits and specifically excluded them from “maintenance.” See id. In Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001), the Texas Supreme Court recognized the basic rule of statutory construction that it enforces the plain meaning of an unambiguous statute.  Given that the statute did not discuss whether Social Security benefits should be excluded from the calculation of maintenance, we accepted the plain meaning of the statute, as the Texas Legislature enacted, as intending to exclude Social Security benefits from spousal maintenance.     Accordingly, we determined in 2007 that Social Security benefits were specifically excluded from court-ordered spousal maintenance.  See OGC Memorandum Regarding Order of Income Withholding for Spousal Maintenance, In the Matter of the Marriage of Earnestine and Leroy– REPLY (August 3, 2007).

Effective September 1, 2011, however, the Texas Legislature amended section 8.055 to include a separate definition of gross income used specifically for the purpose of calculating the amount of spousal maintenance a court may order, rather than relying on the child support provisions in section 154.062. Compare Tex. Fam. Code Ann. § 8.055 (Vernon 2011), Tex. Fam. Code Ann. §§ 8.055, 154.062 (Vernon 2007). Section 8.055 now states that gross income includes:  all wage and salary income; interest, dividends, and royalty income; self-employment income; net rental income; and all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes, gifts and prizes, maintenance, and alimony. Id. at § 8.055(a-1)(1). The provision states that gross income does not include:  return of principal or capital; accounts receivable; benefits paid in accordance with federal public assistance programs; benefits paid in accordance with the Temporary Assistance for Needy Families program; payments for foster care of a child; Department of Veterans Affairs service-connected disability compensation; supplemental security income (SSI), social security benefits, and disability benefits; or workers’ compensation benefits. See id. at § 8.055(a-1)(2) (emphasis added). Thus, while the statute excludes the calculation of a number holder’s gross income for purposes of determining the amount the number holder must pay in spousal maintenance, it does not forbid a court from ordering income withholding of a number holder’s Social Security benefits Of course, we note that the court did not specifically withhold “Social Security benefits” in its order. It did, however, order the number holder’s “employer” to withhold a portion of the number holder’s “earnings” for spousal maintenance. As discussed above, Texas law defines an “employer” to include the United States or any other entity that pays or owes earnings to an individual, and defines “earnings” to include a payment made under a disability or retirement program. See Tex. Fam. Code Ann. § 101.011, 101.012. Thus, the court’s order directs the agency to withhold the number holder’s Social Security benefits for spousal maintenance. for spousal maintenance. See id. Our conclusion is consistent with the Texas statutory provisions governing income withholding for spousal maintenance.   A Texas court may properly order income withholding of disposable earnings for spousal maintenance or any arrearages for past-due spousal maintenance. Tex. Fam. Code Ann. §§ 8.101, 8.263.  Disposable earnings may include payments made under a disability or retirement program, such as Social Security benefits. Tex. Fam. Code Ann. §§ 101.010, 101.011. Thus, reading these provisions together, Texas law states that, while a court may not use a number holder’s social security benefits when calculating the total amount of spousal maintenance a number holder must pay (gross income), it may order withholding of an individual’s Social Security benefits to enforce its order (disposable earnings).  See Tex. Fam. Code Ann. §§ 8.055, 8.101. We were unable to locate any case law further elaborating on these provisions. Accordingly, section 8.055 is now silent as to whether Social Security benefits are specifically withheld from all maintenance. If any prior ambiguity or contradiction existed, the Texas Legislature has now deleted the plain language of the statute upon which our previous opinion relied.  Therefore, we conclude that, effective September 1, 2011, Texas state law permits income withholding of a number holder’s Social Security benefits for spousal maintenance.

However, we turn now to the question of whether the change in Texas law applies retroactively to the November 26, 2007 Order and conclude that it does not.  The 2011 legislative bill amending the Texas Family Code specifically states that, with respect to Tex. Fam. Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a suit for dissolution of a marriage or proceeding for maintenance that was commenced on or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution of a marriage or a proceeding for maintenance commenced before the effective date of this Act is governed by the law in effect on the date the suit or proceeding was commenced, and the former law is continued in effect for that purpose.” See id.

Here, the instant proceeding for maintenance commenced before January 3, 2006, when the Midland County Court issued the first Order of Income Withholding for Spousal Maintenance. Thus, it must be governed by the previous version of Tex. Fam. Code Ann. § 8.055. See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). As noted above and in our August 2007 opinion, the previous version of Tex. Fam. Code Ann. § 8.055 stated “Social Security benefits and disability benefits . . . are excluded from maintenance.” Tex. Fam. Code Ann. § 8.055(c) (2007). Based on this provision, we concluded that Texas state law prohibited income withholding of Social Security benefits for spousal maintenance.  Accordingly, while Texas law changed effective September 1, 2011, the change does not apply to the November 26, 2007 Order discussed in this case.  As the previous version of Section 8.055 still applies to the November 26, 2007 Order, the agency still cannot honor this order for income withholding. We note that an opinion on whether state law permits withholding of benefits for spousal maintenance or child support is not specifically included in the regulatory list of “initial determinations” that a beneficiary may appeal.  See, e.g., 20 C.F.R. § 404.902 (initial determinations are those that largely relate to whether a number holder is entitled to benefits).  Instead, an opinion on whether state law permits withholding of benefits for spousal maintenance or child support is similar to those matters that are not initial determinations. See, e.g., 20 C.F.R. § 404.903 (administrative actions that are not initial determinations include representative determinations such as whether the agency will order a number holder’s employer to withhold earnings to collect an overpayment due to the agency).  Thus, our conclusion that SSA cannot honor the November 26, 2007, order is not an appealable initial determination.  

Finally, you asked that, if SSA could not honor the November 26, 2007, Order for income withholding, OGC provide suggested language to use to respond to the attorney and the court. We suggest the following response:

You disagreed with SSA’s interpretation of Tex. Fam. Code Ann. § 8.055 (2010), which specifically stated that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2010).  But, the plain language of the statute isolated Social Security benefits and specifically excluded them from “maintenance.” See id. In Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001), the Texas Supreme Court recognized the basic rule of statutory construction that it enforces the plain meaning of an unambiguous statute. 

You argued that the provision’s language intended only to exclude Social Security benefits from the calculation of maintenance.  However, the plain language of the statute does not support this argument, as the statute did not discuss whether Social Security benefits should be excluded from the calculation of maintenance. Rather, it specifically excluded Social Security benefits “from maintenance.” We have found no case law interpreting Tex. Fam. Code Ann. § 8.055(c) in a manner consistent with your argument.  Thus, we accept the plain meaning of the statute, as enacted by the Texas Legislature, as intending to exclude Social Security benefits from spousal maintenance. 

You also noted that a recent change in Texas law amended Tex. Fam. Code Ann. § 8.055 to exclude the language discussed above. We agree that the Texas Legislature amended this provision and omitted the language upon which we previously relied. However, the 2011 changes to Texas law do not apply retroactively.  The 2011 legislative bill amending the Texas Family Code specifically states that, with respect to Tex. Fam. Code Ann. § 8.055, “the changes in law made by this Act. . . apply only to a suit for dissolution of a marriage or proceeding for maintenance that was commenced on or after the effective date of this Act.” See H.R. 901, Ch. 486, Section 10A, 82nd Leg., Reg. Sess. (TX 2011). “A suit for dissolution of a marriage or a proceeding for maintenance commenced before the effective date of this Act is governed by the law in effect on the date the suit or proceeding was commenced, and the former law is continued in effect for that purpose.”  See id. Thus, the November 26, 2007, Order is still governed by the former version of Tex. Fam. Code Ann. § 8.055, which stated that “Social Security benefits and disability benefits . . . are excluded from maintenance.” See id. at § 8.055(c) (2007). Therefore, SSA still cannot honor the November 26, 2007 order for income withholding. Rather, if properly served, SSA may honor a Texas court’s order of income withholding stemming from any proceeding for maintenance commenced after September 1, 2011. 

CONCLUSION

We conclude that, effective September 1, 2011, while a court may not include an individual’s Social Security benefits in calculating his gross income, a court may order income withholding of a number holder’s Social Security benefits for spousal maintenance pursuant to a valid income withholding order. However, this change only applies to those proceedings for income withholding that commenced after September 1, 2011.  Accordingly, the 2007 version of the Texas Family Code – and our August 2007 opinion – still governs the November 26, 2007, Order and all orders stemming from proceedings commenced prior to September 1, 2011.  Thus, the agency cannot honor the November 26, 2007 Order of Income Withholding.  

Michael McGaughran

Acting Regional Chief Counsel

By:__________________________

Nicole Dana

Assistant Regional Counsel

In this case, the Agency received an Agreed Order in Suit to Modify Parent-Child Relationship issued by Judge Lauren on August 10, 2004, in the above-referenced case. The Order directs Billy to designate Cheryl as the payee for the Social Security benefit of $749.00 per month paid for the minor child, Morgan . The Order states that Morgan Social Security benefit of $749.00 will be credited against Billy child support obligation. The Order further instructs that Morgan Social Security payment should be made through the Texas Child Support Disbursement Unit at P.O. Box 659791, San Antonio, Texas 78265-9791, who will promptly remit to Cheryl after they receive the payments from the Agency. However, the portion of the Order directing that Morgan Social Security payments be made through the Texas Child Support Disbursement Unit is in conflict with the Social Security Act and the Agency's regulations.

The purpose of this memorandum is to determine whether a court can order the Social Security Administration (“the Agency”) to redirect a child's monthly Social Security benefits to a child support agency when that child is receiving benefits on an obligator's Social Security record.

In this case, the Agency received an Agreed Order in Suit to Modify Parent-Child Relationship issued by Judge Lauren on August 10, 2004, in the above-referenced case. The Order directs Billy to designate Cheryl as the payee for the Social Security benefit of $749.00 per month paid for the minor child, Morgan . The Order states that Morgan Social Security benefit of $749.00 will be credited against Billy child support obligation. The Order further instructs that Morgan Social Security payment should be made through the Texas Child Support Disbursement Unit at P.O. Box 659791, San Antonio, Texas 78265-9791, who will promptly remit to Cheryl after they receive the payments from the Agency. However, the portion of the Order directing that Morgan Social Security payments be made through the Texas Child Support Disbursement Unit is in conflict with the Social Security Act and the Agency's regulations.

As you are aware, Social Security benefits are not subject to execution, levy, attachment, garnishment or other legal process. 42 U.S.C. § 407. However, Social Security benefits may be garnished to enforce an individual's legal obligation to provide child support when the Agency receives legal process that is clearly issued to enforce an obligation to pay child support and that, on its face, conforms to the laws of the jurisdiction from which it was issued. 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b). Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, and issued by (1) a court of competent jurisdiction (domestic or foreign), (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f). In this case, the Order states that Morgan Social Security benefit of $749.00 will be credited against Billy child support obligation and orders the Agency to send Morgan Social Security payment to the Texas Child Support Disbursement Unit, instead of sending the payment to the Agency's designated representative payee, Cheryl . As such, the Order appears to direct the Agency to appoint a substitute representative payee, the Texas Child Support Disbursement Unit, for the minor child, Morgan . However, the Social Security Act makes no provision empowering a State court to order a representative payee to appoint a substitute representative payee.

The Agency appoints a representative payee for a beneficiary under the age of 18 due to the usual legal incapacity of a minor child. See 42 U.S.C. § 1383(a); 20 C.F.R. § 404.2010. The representative payee receives Social Security benefits on behalf of a beneficiary and has a responsibility to use the payments he or she receives only for the use and benefit of the beneficiary in a manner that is in the best interests of the beneficiary. See 42 U.S.C. § 1383; 20 C.F.R. §§ 404.2035, 404.2040.

Upon determination that an appointed representative payee is not fulfilling the duties of a representative payee, the Agency may revoke an individual's “representative payee” status and appoint a new payee. The Agency's regulations provide as follows:

When . . . the interests of the beneficiary are not served by continuing payment to the present payee or that the present payee is no longer able to carry out the payee responsibility, [the Agency will] try to find a new payee. [The Agency] will select a new payee if we find a preferred payee or if the present payee -

(a) Has not used the benefit payments on the beneficiary's behalf . . . .

20 C.F.R. § 404.2050. Thus, only the Agency is empowered to appoint or remove a representative payee.

Further, the Texas Child Support Disbursement Unit does not fit the definition of a representative payee under the Agency's regulations. The Agency's regulations provide that for beneficiaries under the age of 18, the order of preference in selecting a representative payee is as follows:

(1) a natural or adoptive parent who has custody of the beneficiary, or a guardian;

(2) a natural or adoptive parent who does not have custody but is contributing toward the beneficiary's support and is demonstrating strong concern for the beneficiary's well being;

(3) a natural or adoptive parent who does not have custody and is not contributing toward the beneficiary's support but is demonstrating strong concern for the beneficiary's well being;

(4) a relative or stepparent who has custody of the beneficiary;

(5) a relative who does not have custody but is contributing toward the beneficiary's support and is demonstrating concern for the beneficiary's well being;

(6) a relative or close friend who does not have custody but is demonstrating concern for the beneficiary's well being; and

(7) an authorized social agency or custodial institution.

20 C.F.R. § 404.2021. In addition, the representative payee must provide to the Agency, not less often than annually, a written report accounting for the benefits received. 42 U.S.C. § 405(3)(A); 20 C.F.R. § 404.2035.

Based on the above-cited Federal provisions, we believe that the Agency should continue to effectuate payment of the subject benefits to Cheryl , as representative payee for Morgan , for the use and benefit of Morgan , unless the Agency determines that another representative payee should be appointed.

Tina M. Waddell

Acting Regional Chief Counsel

By:__________________________

Carolyn Ebberts-Whitson

Assistant Regional Counsel