Let them know you know you will not sign away your rights via contract.
I explicitly reserve all my unalienable Rights without prejudice under Texas Rules of civil Procedures 815.
These rules shall not be construed to enlarge or diminish any substantive rights or obligations of any parties to any civil action.
McLendon v. McLendon, 847 S.W.2d 601, 608 (Tex App.-Dallas 1992, writ denied). "[T]he supreme court's rulemaking power may not [adopt rules that] 'abridge, enlarge, or modify the substantive rights of a litigant.' "
Learn how to overcome this fact via "Copyright". 2nd and 4th Tuesday (7:30 PM) Denny's - (Hwy 75 North at Meadow - NW Corner - Dallas, Texas) - or see video listed in Contact area
PART VI RULE RELATING TO ANCILLARY PROCEEDINGS
Section 1 Attachment
TRCP 592 APPLICATION FOR WRIT OF ATTACHMENT and ORDER
Either at the commencement of a suit or at any time during its progress the plaintiff may File an application for the issuance of a writ of attachment. Such application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other persons having knowledge of relevant facts. The application shall comply with all statutory requirements and shall state the grounds for issuing the writ and the specific facts relied upon by the plaintiff to warrant the required findings by the court. The writ shall not be quashed because two or more grounds are stated conjunctively or disjunctively. The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence; provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated. No writ shall issue except upon written order of the court after a hearing, which may be ex parte. The court, in its order granting the application, shall make specific Findings of facts to support the statutory grounds found to exist, and shall specify the maximum value of property that may be attached, and the amount of bond required of plaintiff, and, further shall command that the attached property be kept safe and preserved subject to further orders of the court. Such bond shall be in an amount which, in the opinion of the court, will adequately compensate the defendant in the event plaintiff fails to prosecute his suit to effect, and to pay all damages and costs which may be adjudged against him for wrongfully suing out the writ of attachment. The court shall further find in its order the amount of bond required of defendant to replevy, which, unless the defendant chooses to exercise his option as provided in Rule 599, shall be the amount of plaintiffs claim, one year's accrual of interest if allowed by law on the claim, and the estimated costs of court. The order may direct the issuance of several writs at the same time, or in succession, to be sent to different counties.
TRCP 592a BOND FOR ATTACHMENT
No writ of attachment shall issue until the party applying therefor has filed with the officer authorized to issue such writ a bond payable to the defendant in the amount fixed by the court's order, with sufficient surety or sureties as provided by statute to be approved by such officer, conditioned that the plaintiff will prosecute his suit to effect and pay to the extent of the penal amount of the bond all damages and costs as may be adjudged against him for wrongfully suing out such writ of attachment.
After notice to the opposite party, either before or after the issuance of the writ, the defendant or plaintiff may file a motion to increase or reduce the amount of such bond, or to question the sufficiency of the sureties thereon, in the court in which such suit is pending. Upon hearing, the court shall enter its order with respect to such bond and sufficiency of the sureties.
TRCP 592b FORM OF ATTACHMENT BOND
The following form of bond may be used:
"The State of Texas,
"County of _______,
"We, the undersigned, ________ as principal, and ________ and _________ as sureties, acknowledge ourselves bound to pay to C.D. the sum of_________ dollars, conditioned that the above bound plaintiff in attachment against the said C.D" defendant, will prosecute his said suit to effect, and that he will pay all such damages and costs to the extent of the penal amount of this bond as shall be adjudged against him for wrongfully suing out such attachment. Witness our
hands this __ day of_______, 19__."
TRCP 593 REQUISITES FOR WRIT
A writ of attachment shall be directed to the sheriff or any constable within the State of Texas. It shall command him to attach and hold, unless replevied, subject to the further order of the court, so much of the property of the defendant, of a reasonable value in approximately the amount fixed by the court, as shall be found within his county.
TRCP 594 FORM OF WRIT
The following form of writ may be issued:
"The State of Texas.
"To the Sheriff or any Constable of any County of the State of Texas, greeting:
"We command you that you attach forthwith so much of the property of C.D., if it be found in your county, repleviable on security, as shall be of value sufficient to make the sum of ________ dollars, and the probable costs of suit, to satisfy the demand of A.B., and that you keep and secure in your hands the property so attached, unless replevied, that the same may be liable to further proceedings thereon to be had before our court in ________, County of __________. You will true return make of this writ on or before 10 a.m. of Monday, the _______ day of_______, 19__, showing how you have executed the same."
TRCP 595 SEVERAL WRITS
Several writs of attachment may, at the option of the plaintiff, be issued at the same time, or in succession and sent to different counties, until sufficient property shall be attached to satisfy the writ.
TRCP 596 DELIVERY OF WRIT
The writ of attachment shall be dated and tested as other writs, and may be delivered to the sheriff or constable by the officer issuing it, or he may deliver it to the plaintiff, his agent or attorney, for that purpose.
TRCP 597 DUTY OF OFFICER
The sheriff or constable receiving the writ shall immediately proceed to execute the same by levying upon so much of the property of the defendant subject to the writ, and found within his county, as may be sufficient to satisfy the command of the writ.
TRCP 598 LEVY, HOW MADE
The writ of attachment shall be levied in the same manner as is, or may be, the writ of execution upon similar property.
TRCP 598a SERVICE OF WRIT ON DEFENDANT
The defendant shall be served in any manner prescribed for service of citation, or as provided in Rule 21 a, with a copy of the writ of attachment, the application, accompanying affidavits, and orders of the court as soon as practicable following the levy of the writ. There shall be prominently displayed on the face of the copy of the writ served on the defendant, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following:
"To ________, Defendant:
"You are hereby notified that certain properties alleged to be owned by you have been attached. If you claim any rights in such property, you are advised: "YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT."
TRCP 599 DEFENDANT MAY REPLEVY
At any time before judgment, should the attached property not have been previously claimed or sold, the defendant may replevy the same, or any part thereof, or the proceeds from the sale of the property if it has been sold under order of the court, by giving bond with sufficient surety or sureties as provided by statute, to be approved by the officer who levied the writ, payable to plaintiff, in the amount fixed by the court's order, or, at the defendant's option, for the value of the property sought to be replevied (to be estimated by the ofFicer), plus one year's interest thereon at the legal rate from the date of the bond, conditioned that the defendant shall satisfy, to the extent of the penal amount of the bond, any judgment which may be rendered against him in such action.
On reasonable notice to the opposing party (which may be less than three days) either party shall have the right to prompt judicial review of the amount of bond required, denial of bond, sufficiency of sureties, and estimated value of the property, by the court which authorized issuance of the writ. The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court shall forthwith enter its order either approving or modifying the requirements of the officer or of the court's prior order, and such order of the court shall supersede and control with respect to such matters.
On reasonable notice to the opposing party (which may be less than three days) the defendant shall have the right to move the court for a substitution of property, of equal value as that attached, for the property attached. Provided that there has been located sufficient property of the defendants to satisfy the order of attachment, the court may authorize substitution of one or more items of defendant's property for all or for part of the property attached. The court shall first make Findings as to the value of the property to be substituted. If property is substituted, the property released from attachment shall be delivered to defendant, if such property is personal property, and all liens upon such property from the original order of attachment or modification thereof shall be terminated. Attachment of substituted property shall be deemed to have existed from the date of levy on the original property attached, and no property on which liens have become affixed since the date of levy on the original property may be substituted.
TRCP 600 SALE OF PERISHABLE PROPERTY
Whenever personal property which has been attached shall not have been claimed or replevied, the judge, or justice of the peace, out of whose court the writ was issued, may, either in term time or in vacation, order the same to be sold, when it shall be made to appear that such property is in danger of serious and immediate waste or decay, or that the keeping of the same until the trial will necessarily be attended with such expense or deterioration in value as greatly to lessen the amount likely to be realized therefrom.
TRCP 601 TO PROTECT INTERESTS
In determining whether the property attached is perishable, and the necessity or advantage of ordering a sale thereof, the judge or justice of the peace may act upon affidavits in writing or oral testimony, and may by a preliminary order entered of record, with or without notice to the parties as the urgency of the case in his opinion requires, direct the sheriff or constable to sell such property at public auction for cash, and thereupon the officer shall sell it accordingly.
TRCP 602 BOND OF APPLICANT FOR SALE
If the application for an order of sale be filed by any person or party other than the defendant from whose possession the property was taken by levy, the court shall not grant such order unless the applicant shall file with such court a bond payable to such defendant, with two or more good and sufficient sureties, to be approved by said court, conditioned that they will be responsible to the defendant for such damages as he may sustain in case such sale be illegally and unjustly applied for, or be illegally and unjustly made.
TRCP 603 PROCEDURE FOR SALE
Such sale of attached perishable personal property shall be conducted in the same manner as sales of personal property under execution; provided, however, that the time of the sale, and at the time of advertisement thereof, may be fixed by the judge or justice of the peace at a time earlier than ten days, according to the exigency of the case, and in such event notice thereof shall be given in such manner as directed by the order.
TRCP 604 RETURN OF SALE
The officer making such sale of perishable property shall promptly pay the proceeds of such sale to the clerk of such court or justice of the peace, as the case maybe, and shall make written return of the order of sale signed by him officially, staling the time and place of the sale, the name of the purchaser, and the amount of money received, with an itemized account of the expenses attending the sale. Such return shall be filed with the papers of the case.
TRCP 605 JUDGE MAY MAKE NECESSARY ORDERS
When the perishable personal property levied on under the attachment writ has not been claimed or replevied, the judge or justice of the peace may make such orders, either in term time or vacation, as may be necessary for its preservation or use.
TRCP 606 RETURN OF WRIT
The officer executing the writ of attachment shall return the writ, with his action endorsed thereon, or attached thereto, signed by him officially, to the court from which it issued, at or before 10 o'clock a.m. of the Monday next after the expiration of fifteen days from the date of issuance of the writ. Such return shall describe the property attached with sufficient certainty to identify it, and state when the same was attached, and whether any personal property attached remains still in his hands, and, if not, the disposition made of the same. When property has been replevied he shall deliver the replevy bond to the clerk or justice of the peace to be filed with the papers of the cause.
TRCP 607 REPORT OF DISPOSITION OF PROPERTY
When the property levied on is claimed, replevied or sold, or otherwise disposed of after the writ has been returned, the officer having the custody of the same shall immediately make a report in writing, signed by him officially, to the clerk, or justice of the peace, as the case may be, showing such disposition of the properly. Such report shall be filed among the papers of the cause.
TRCP 608 DISSOLUTION OR MODIFICATION OF WRIT OF ATTACHMENT
A defendant whose property has been attached or any intervening party who claims an interest in such property, may by sworn written motion, seek to vacate, dissolve, or modify the writ, and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic. Such motion shall admit or deny each finding of the order directing the issuance of the writ except where the movant is unable to admit or deny the finding, in which case movant shall set forth the reasons why he cannot admit or deny. Unless the parties agree to an extension of time, the motion shall be heard promptly, after reasonable notice to the plaintiff (which may be less than three days), and the issue shall be determined not later than ten days after the motion is filed. The filing of the motion shall stay any further proceedings under the writ, except for any orders concerning the care, preservation, or sale of perishable property, until a hearing is had and the issue is determined. The writ shall be dissolved unless at such hearing, the plaintiff shall prove the grounds relied upon for its issuance, but the court may modify its previous order granting the writ and the writ issued pursuant thereto. The movant shall, however, have the burden to prove that the reasonable value of the property attached exceeds the amount necessary to secure the debt, interest for one year, and probable costs. He shall also have the burden to prove the facts to justify substitution of property.
The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court may make all such orders, including orders concerning the care, preservation, or disposition of the property (or the proceeds therefrom if the same has been sold), as justice may require. If the movant has given a replevy bond, an order to vacate or dissolve the writ shall vacate the replevy bond and discharge the sureties thereon, and if the court modifies its order or the writ issued pursuant thereto, it shall make such further orders with respect to the bond as may be consistent with its modification.
TRCP 609 AMENDMENT
Clerical errors in the affidavit, bond, or writ of attachment, or the officer's return thereof, may upon application in writing to the judge or justice of the court in which the suit is filed, and after notice to the opponent, be amended in such manner and on such terms as the judge or justice shall authorize by an order entered in the minutes of the court or noted on the docket of the justice of the peace, provided the amendment does not change or add to the grounds of such attachment as stated in the affidavit, and provided such amendment appears to the judge or justice to be in furtherance of justice.
Section 2 Distress Warrant
TRCP 610 APPLICATION FOR DISTRESS WARRANT and ORDER
Either at the commencement of a suit or at any time during its progress the plaintiff may file an application for the issuance of a distress warrant with the justice of the peace. Such application may be supported by affidavits of the plaintiff, his agent, his attorney, or other persons having knowledge of relevant facts, but shall include a statement that the amount sued for is rent, or advances described by statute, or shall produce a writing signed by the tenant to that effect, and shall further swear that such warrant is not sued out for the purpose of vexing and harassing the defendant. The application shall comply with all statutory requirements and shall state the grounds for issuing the warrant and the specific facts relied upon by the plaintiff to warrant the required findings by the justice of the peace. The warrant shall not be quashed because two or more grounds are stated conjunctively or disjunctively. The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated. No warrant shall issue before final judgment except on written order of the justice of the peace after a hearing, which may be ex parte. Such warrant shall be made returnable to a court having jurisdiction of the amount in controversy. The justice of the peace in his order granting the application shall make specific findings of fact to support the statutory grounds found to exist, and shall specify the maximum value of property that may be seized, and the amount of bond required of plaintiff, and, further shall command that property be kept safe and preserved subject to further orders of the court having jurisdiction. Such bond shall be in an amount which, in the opinion of the court, shall adequately compensate defendant in the event plaintiff fails to prosecute his suit to effect, and pay all damages and costs as shall be adjudged against him for wrongfully suing out the warrant. The justice of the peace shall further Find in his order the amount of bond required to replevy, which, unless the defendant chooses to exercise his option as provided in Rule 614, shall be the amount of plaintiffs claim, one year's accrual of interest if allowed by law on the claim, and the estimated costs of court. The order may direct the issuance of several warrants at the same time, or in succession, to be sent to different counties.
Lincoln Ten, Ltd. v. White, 706 S.W.2d 125, 128 (Tex.App.-Houston [14th Dist.] 1986, orig. proceeding). "According to [TRCP] 610, no distress warrant will issue before Final judgment except on written order of a justice of the peace. This complies with the requirement that the writ must be issued by a judicial officer."
TRCP 611 BOND FOR DISTRESS WARRANT
No distress warrant shall issue before final judgment until the party applying therefor has Filed with the justice of the peace authorized to issue such warrant a bond payable to the defendant in an amount approved by the justice of the peace, with sufficient surety or sureties as provided by statute, conditioned that the plaintiff will prosecute his suit to effect and pay all damages and costs as may be adjudged against him for wrongfully suing out such warrant.
After notice to the opposite party, either before or after the issuance of the warrant, the defendant or plaintiff may file a motion to increase or reduce the amount of such bond, or to question the sufficiency of the sureties thereon, in a court having jurisdiction of the subject matter. Upon hearing, the court shall enter its order with respect to such bond and sufficiency of the sureties.
TRCP 612 REQUISITES FOR WARRANT
A distress warrant shall be directed to the sheriff or any constable within the State of Texas. It shall command him to attach and hold, unless replevied, subject to the further orders of the court having jurisdiction, so much of the property of the defendant, not exempt by statute, of reasonable value in approximately the amount fixed by the justice of the peace, as shall be found within his county.
TRCP 613 SERVICE OF WARRANT ON DEFENDANT
The defendant shall be served in any manner prescribed for service of citation, or as provided in Rule 21 a, with a copy of the distress warrant, the application, accompanying affidavits, and orders of the justice of the peace as soon as practicable following the levy of the warrant. There shall be prominently displayed on the face of the copy of the warrant served on the defendant, in IO-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following:
To ________, Defendant: You are hereby notified that certain properties alleged to be owned by you have been seized. If you claim any rights in such property, you are advised: "YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WARRANT."
TRCP 614 DEFENDANT MAY REPLEVY
At any time before judgment, should the seized property not have been previously claimed or sold, the defendant may replevy the same, or any part thereof, or the proceeds from the sale of the property if it has been sold under order of the court, by giving bond with sufficient surety or sureties as provided by statute, to be approved by a court having jurisdiction of the amount in controversy payable to plaintiff in double the amount of the plaintiffs debt, or, at the defendant's option for not less than the value of the property sought to be replevied, plus one year's interest thereon at the legal rate from the date of the bond, conditioned that the defendant shall satisfy to the extent of the penal amount of the bond any judgment which may be rendered against him in such action.
On reasonable notice to the opposing party (which may be less than three days) either party shall have the right to prompt judicial review of the amount of bond required, denial of bond, sufficiency of sureties, and estimated value of the property, by a court having jurisdiction of the amount in controversy. The court's determination may be made upon the basis of affidavits if uncontroverted setting forth such facts as would be admissible in evidence, otherwise the parties shall submit evidence. The court shall forthwith enter its order either approving or modifying the requirements of the order of the justice of the peace, and such order of the court shall supersede and control with respect to such matters.
On reasonable notice to the opposing party (which may be less than three days) the defendant shall have the right to move the court for a substitution of property, of equal value as that attached, for the property seized. Provided that there has been located sufficient property of the defendant's to satisfy the order of seizure, the court may authorize substitution of one or more items of defendant's property for all or part of the property seized. The court shall first make findings as to the value of the property to be substituted. If property is substituted, the property released from seizure shall be delivered to defendant, if such property is personal property, and all liens upon such property from the original order of seizure or modification thereof shall be terminated. Seizure of substituted property shall be deemed to have existed from the date of levy on the original property seized, and no property on which liens have become affixed since the date of levy on the original property may be substituted.
TRCP 614a DISSOLUTION OR MODIFICATION OF DISTRESS WARRANT
A defendant whose property has been seized or any intervening claimant who claims an interest in such property, may by sworn written motion, seek to vacate, dissolve, or modify the seizure, and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic. Such motion shall admit or deny each Finding of the order directing the issuance of the warrant except where the movant is unable to admit or deny the finding, in which case movant shall set forth the reasons why he cannot admit or deny. Unless the parties agree to an extension of time, the motion shall be heard promptly, after reasonable notice to the plaintiff (which may be less than three days), and the issue shall be determined not later than 10 days after the motion is filed. The filing of the motion shall stay any further proceedings under the warrant, except for any orders concerning the care, preservation, or sale of any perishable property, until a hearing is had, and the issue is determined. The warrant shall be dissolved unless, at such hearing, the plaintiff shall prove the specific facts alleged and the grounds relied upon for its issuance, but the court may modify the order of the justice of the peace granting the warrant and the warrant issued pursuant thereto. The movant shall however have the burden to prove that the reasonable value of the property seized exceeds the amount necessary to secure the debt, interest for one year, and probable costs. He shall also have the burden to prove the facts to justify substitution of property. The court's determination may be made upon the basis of affidavits setting forth such facts as would be admissible in evidence, but additional evidence, if tendered by either party shall be received and considered. The court may make all such orders, including orders concerning the care, preservation, or disposition of the property (or the proceeds therefrom if the same has been sold), as justice may require. If the movant has given a replevy bond, an order to vacate or dissolve the warrant shall vacate the replevy bond and discharge the sureties thereon, and if the court modifies the order of the justice of the peace of the warrant issued pursuant thereto, it shall make such further orders with respect to the bond as may be consistent with its modification.
TRCP 615 SALE OF PERISHABLE PROPERTY
Whenever personal property which has been levied on under a distress warrant shall not have been claimed or replevied, the judge, or justice of the peace, to whose court such writ is made returnable may, either in term time or in vacation, order the same to be sold, when it shall be made to appear that such property is in danger of serious and immediate waste or decay, or that the keeping of the same until the trial will necessarily be attended with such expense or deterioration in value as greatly to lessen the amount likely to be realized therefrom.
TRCP 616 TO PROTECT INTERESTS
In determining whether the property levied upon is perishable, and the necessity or advantage of ordering a sale thereof, the judge or justice of the peace may act upon affidavits in writing or oral testimony, and may by a preliminary order entered of record with or without notice to the parties as the urgency of the case in his opinion requires, direct the sheriff or constable to sell such property at public auction for cash, and thereupon the sheriff or constable shall sell it accordingly. If the application for an order of sale be Filed by any person or party other than the defendant from whose possession the property was taken by levy, the court shall not grant such order, unless the applicant shall file with such court a bond payable to such defendant, with two or more good and sufficient sureties, to be approved by said court, conditioned that they will be responsible to the defendant for such damages as he may sustain in case such sale be illegally and unjustly applied for, or be illegally and unjustly made.
TRCP 617 PROCEDURE FOR SALE
Such sale of perishable personal property shall be conducted in the same manner as sales of personal property under execution; provided, however, that the time of the sale, and the time of advertisement thereof, may be fixed by the judge or justice of the peace at a time earlier than ten days, according to the exigency of the case, and in such event notice thereof shall be given in such manner as directed by the order.
TRCP 618 RETURN OF SALE
The officer making such sale of perishable property shall promptly pay the proceeds of such sale to the clerk of such court or to the justice of the peace, as the case may be, and shall make written return of the order of sale, signed by him officially, staling the time and place of the sale, the name of the purchaser, and the amount of money received, with an itemized account of the expenses attending the sale. Such return shall be filed with the papers of the case.
TRCP 619 CITATION FOR DEFENDANT
The justice at the time he issues the warrant shall issue a citation to the defendant requiring him to answer before such justice at the first day of the next succeeding term of court, staling the time and place of holding the same, if he has jurisdiction to finally try the cause, and upon its being returned served, to proceed to judgment as in ordinary cases; and, if he has not such jurisdiction, the citation shall require the defendant to answer before the court to which the warrant was made returnable at or before ten o'clock a.m. of the Monday next after the expiration of twenty days from the date of service thereof, staling the place of holding the court, and shall be returned with the other papers to such court. If the defendant has removed from the county without service, the proper officer shall state this fact in his return on the citation; and the court shall proceed to try the case ex parte, and may enter judgment.
TRCP 620 PETITION
When the warrant is made returnable to the district or county court, the plaintiff shall file his petition within ten days from the date of the issuance of the writ.
Section 3 Executions
TRCP 621 ENFORCEMENT OF JUDGMENT
The judgments of the district, county, and justice courts shall be enforced by execution or other appropriate process. Such execution or other process shall be returnable in thirty, sixty, or ninety days as requested by the plaintiff, his agent or attorney.
TRCP 621a DISCOVERY and ENFORCEMENT OF JUDGMENT
At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersede as bond or by order of a proper court and has not become dormant as provided by Article 3773, V.A.T.S., the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. Also, at any time after rendition of judgment, either party may, for the purpose of obtaining information relevant to motions allowed by Texas Rules of Appellate Procedure 47* and 49* initiate and maintain
in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. The rules governing and related to such pre-trial discovery proceedings shall apply in like manner to discovery proceedings after judgment. The rights herein granted to the parties shall inure to their successors or assignees, in whole or in part. Judicial supervision of such discovery proceedings after judgment shall be the same as that provided by law or these rules for pre-trial discovery and proceedings insofar as applicable.
Arndt v. Farris, 633 S.W.2d 497, 499 (Tex.l982). TRCP 621 a "was adopted as a separate and independent rule applicable only to discovery in aid of enforcement of judgments. [If] [T]he trial court has continuing jurisdiction over such matters as set forth in the rule."
Metzger v. Casseb, 839 S.W.2d 160, 161 (Tex.App. -Houston [1st Dist.] 1992, orig. proceeding). Under TRCP 621 a, "trial courts have jurisdiction to rule on post-judgment discovery matters similar to the authority they have in pretrial matters. ... We hold that this includes the authority to rule on motions to recuse arising during post-judgment proceedings."
Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 375 (Tex.App.-Corpus Christi 1991, orig. proceeding). TRCP 621 a orders "are not Final or appealable in themselves. ... Because an appeal will not lie from the [TRCP 621a] order, we may review the order under the present petition for writ of mandamus to determine whether the trial judge has abused his discretion."
TRCP 622 EXECUTION
An execution is a process of the court from which it is issued. The clerk of the district or county court or the justice of the peace, as the case may be, shall tax the costs in every case in which a Final judgment has been rendered and shall issue execution to enforce such judgment and collect such costs. The execution and subsequent executions shall not be addressed to a particular county, but shall be addressed to any sheriff or any constable within the State of Texas.
Williams v. Masterson, 306 S.W.2d 152, 155 (Tex. App.-Houston [1st Dist.] 1957, writ ref'd n.r.e.). " [ T ] he statutory term 'execution' includes writs of possession which, under our law, may include an order to the sheriff, in addition to the direction to place a successful party to a land action in possession, to make on execution any damages or costs of suit that may be awarded the successful party."
TRCP 623 ON DEATH OF EXECUTOR
When an executor, administrator, guardian or trustee of an express trust dies, or ceases to be such executor, administrator, guardian or trustee after judgment, execution shall issue on such judgment in the name of his successor, upon an affidavit of such death or termination being Filed with the clerk of the court or the justice of the peace, as the case may be, together with the certificate of the appointment of such successor under the hand and seal of the clerk of the court wherein the appointment was made.
TRCP 624 ON DEATH OF NOMINAL PLAINTIFF
When a person in whose favor a judgment is rendered for the use of another dies after judgment, execution shall issue in the name of the party for whose use the suit was brought upon an affidavit of such death being Filed with the clerk of the court or the justice of the peace.
TRCP 625 ON MONEY OF DECEASED
If a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration.
TRCP 626 ON PROPERTY OF DECEASED
In any case of judgment other than a money judgment, where the sole defendant, or one or more of several joint defendants, shall die after judgment, upon an affidavit of such death being filed with the clerk, together with the certificate of the appointment of a representative of such decedent under the hand and seal of the clerk of the court wherein such appointment was made, the proper process on such judgment shall issue against such representative.
TRCP 627 TIME FOR ISSUANCE
If no supersede as bond or notice of appeal, as required of agencies exempt from filing bonds, has been Filed and approved, the clerk of the court or justice of the peace shall issue the execution upon such judgment upon application of the successful party or his attorney after the expiration of thirty days from the time a Final judgment is signed. If a timely motion for new trial or in arrest of judgment is filed, the clerk shall issue the execution upon the judgment on application of the party or his attorney after the expiration of thirty days from the time the order overruling the motion is signed or from the time the motion is overruled by operation of law.
Hood v. Amarillo Nat'1 Bank, 815 S.W.2d 545,548 (Tex.l991). "[A] writ of execution will not issue until after a Final and appealable judgment is signed."
Winkle v. Winkle, 951 S.W.2d 80, 89 (Tex.App- Corpus Christi 1997, writ denied). Under TRCP 627, "executions of Final judgments from district courts may not issue until after 30 days have elapsed since the rendition of the Final judgment or after the overruling of any motions for a new trial. A prematurely issued execution of judgment [is] voidable."
TRCP 628 EXECUTION WITHIN THIRTY DAYS
Such execution may be issued at any time before the thirtieth day upon the Filing of an affidavit by the plaintiff in the judgment or his agent or attorney that the defendant is about to remove his personal property subject to execution by law out of the county, or is about to transfer or secrete such personal property for the purpose of defrauding his creditors.
Perfection Casting Corp. v. Aluminum Alloys, Inc., 733 S.W.2d 385, 386 (Tex.App.-San Antonio 1987, no writ). It was proper for the trial court to allow immediate execution on a judgment, even if the affidavit did not allege sufficient facts to warrant immediate execution, where, after the affidavit was Filed and execution was granted, the party received a hearing on the sufficiency of the affidavit.
TRCP 629 REQUISITES OF EXECUTION
The style of the execution shall be "The State of Texas." It shall be directed to any sheriff or any constable within the State of Texas. It shall be signed by the clerk or justice officially, and bear the seal of the court, if issued out of the district or county court, and shall require the officer to execute it according to its terms, and to make the costs which have been adjudged against the defendant in execution and the further costs of executing the writ. It shall describe the judgment, stating the court in which, and the time when, rendered, and the names of the parties in whose favor and against whom the judgment was rendered. A correct copy of the bill of costs taxed against the defendant in execution shall be attached to the writ. It shall require the officer to return it within thirty, sixty, or ninety days, as directed by the plaintiff or his attorney.
TRCP 630 EXECUTION ON JUDGMENT FOR MONEY
When an execution is issued upon a judgment for a sum of money, or directing the payment simply of a sum of money, it must specify in the body thereof the sum recovered or directed to be paid and the sum actually due when it is issued and the rate of interest upon the sum due. It must require the officer to satisfy the judgment and costs out of the property of the judgment debtor subject to execution by law.
TRCP 631 EXECUTION FOR SALE OF PARTICULAR PROPERTY
An execution issued upon a judgment for the sale of particular chattels or personal property or real estate, must particularly describe the property, and shall direct the officer to make the sale by previously giving the public notice of the time and place of sale required by law and these rules.
TRCP 632 EXECUTION FOR DELIVERY OF CERTAIN PROPERTY
An execution issued upon a judgment for the delivery of the possession of a chattel or personal property, or for the delivery of the possession of real property, shall particularly describe the property, and designate the party to whom the judgment awards the possession. The writ shall require the officer to deliver the possession of the property to the party entitled thereto.
TRCP 633 EXECUTION FOR POSSESSION OR VALUE OF PERSONAL PROPERTY
If the judgment be for the recovery of personal property or its value, the writ shall command the officer, in case a delivery thereof cannot be had, to levy and collect the value thereof for which the judgment was recovered, to be specified therein, out of any property of the party against whom judgment was rendered, liable to execution.
TRCP 634 EXECUTION SUPERSEDED
The clerk or justice of the peace shall immediately issue a writ of supersede as suspending all further proceedings under any execution previously issued when a supersede as bond is afterward filed and approved within the time prescribed by law or these rules.
TRCP 635 STAY OF EXECUTION IN JUSTICE COURT
At any time within ten days after the rendition of any judgment in a justice court, the justice may grant a stay of execution thereof for three months from the date of such judgment, if the person against whom such judgment was rendered shall, with one or more good and sufficient sureties, to be approved by the justice, appear before him and acknowledge themselves and each of them bound to the successful party in such judgment for the full amount thereof, with interest and costs, which acknowledgment shall be entered in writing on the docket, and signed by the persons binding themselves as sureties; provided, no such stay of execution shall be granted unless the party applying therefor shall First file an affidavit with the justice that he has not the money with which to pay such judgment, and that the enforcement of same by execution prior to three months would be a hardship upon him and would cause a sacrifice of his property which would not likely be caused should said execution be stayed. Such acknowledgment shall be entered by the justice on his docket and shall constitute a judgment against the defendant and such sureties, upon which execution shall issue in case the same is not paid on or before the expiration of such day.
TRCP 636 INDORSEMENTS BY OFFICER
The officer receiving the execution shall indorse thereon the exact hour and day when he received it. If he receives more than one on the same day against the same person he shall number them as received.
Diversified Ins. Mgmt., Inc. v. Phagan, 589 S.W.2d 854, 856 (Tex.App-Fort Worth 1979, no writ). TRCP 636 "provides that when an officer receives more than one [execution] on the same day against the same person he shall number them as received. [ If ] '[H]e must enforce them in the order that he received them."'
TRCP 637 LEVY OF EXECUTION
When an execution is delivered to an officer he shall proceed without delay to levy the same upon the property of the defendant found within his county not exempt from execution, unless otherwise directed by the plaintiff, his agent or attorney. The officer shall first call upon the defendant, if he can be found, or, if absent, upon his agent within the county, if known, to point out property to be levied upon, and the levy shall first be made upon the property designated by the defendant, or his agent. If in the opinion of the officer the property so designated will not sell for enough to satisfy the execution and costs of sale, he shall require an additional designation by the defendant. If no property be thus designated by the defendant, the officer shall levy the execution upon any property of the defendant subject to execution.
Hickey v. Coachman, 797 S.W.2d 103, 109 (Tex. App.-Corpus Christi 1990, writ denied). "When the deputy learned that bankruptcy had not been Filed [as alleged], he had a duty to execute immediately. ... We hold that where a sheriff is aware of the debtor's nonexempt assets and is able to seize them but does not, he willfully and intentionally violates [CPRC] Section 34.065."
Collum v. DeLoughter, 535 S.W.2d 390, 393 (Tex. App.-Texarkana 1976, writ refd n.r.e.). " [T] he failure of the officer to make any attempt to give [the debtor] an opportunity to designate property, as required by [TRCP] 637, was an irregularity [which] together with an inadequate price paid for the property, and the trial court's presumed Finding that these irregularities were calculated to ... contribute to such inadequacy of price, [is] sufficient to avoid the sale."
TRCP 638 PROPERTY NOT TO BE DESIGNATED
A defendant in execution shall not point out property which he has sold, mortgaged or conveyed in trust, or property exempt from forced sale.
TRCP 639 LEVY
In order to make a levy on real estate, it shall not be necessary for the officer to go upon the ground but it shall be sufficient for him to indorse such levy on the writ. Levy upon personal property is made by taking possession thereof, when the defendant in execution is entitled to the possession. Where the defendant in execution has an interest in personal property, but is not entitled to the possession thereof, a levy is made thereon by giving notice thereof to the person who is entitled to the possession, or one of them where there are several.
Beaurline v. Sinclair Ref. Co., 191 S.W.2d 774,777 (Tex.App.-San Antonio 1945, writ refd n.r.e.). "[W]here a levy is made on property ... which is so cumbersome that it may not be moved except at large expense and effort, it is sufficient if the officer goes upon the premises, points out the property, asserts dominion over it and forbids its removal by the person against whom the writ has been issued. ... The officer in making a levy on such property must do some act which would constitute a trespass except for the immunity furnished him by the writ."
TRCP 640 LEVY ON STOCK RUNNING AT LARGE
A levy upon livestock running at large in a range, and which cannot be herded and penned without great inconvenience and expense, may be made by designating by reasonable estimate the number of animals and describing them by their marks and brands, or either; such levy shall be made in the presence of two or more credible persons, and notice thereof shall be given in writing to the owner or his herder or agent, if residing within the county and known to the officer.
TRCP 641 LEVY ON SHARES OF STOCK
A levy upon shares of stock of any corporation or joint stock company for which a certificate is outstanding is made by the officer seizing and taking possession of such certificate. Provided, however, that nothing herein shall be construed as restricting any rights granted under Section 8.317 of the Texas Uniform Commercial Code.
Benson v. Greenville Nat'l Exch. Bank, 253 S.W.2d 918,928 (Tex. App.--Texarkana 1952, writ ref'd n.r.e.)- " [W] hile the mere delivery of a stock certificate ... would not transfer title, yet the mere delivery of the stock would create a right in the bank as pledgee, by virtue of which it could resort to equity if its security was in any way threatened."
TRCP 642 REPEALED
TRCP 643 LEVY ON GOODS PLEDGED OR MORTGAGED
Goods and chattels pledged, assigned or mortgaged as security for any debt or contract, may be levied upon and sold on execution against the person making the pledge, assignment or mortgage subject thereto; and the purchaser shall be entitled to the possession when it is held by the pledgee, assignee or mortgagee, on complying with the conditions of the pledge, assignment or mortgage.
Grocers Sup. Co. v. Intercity Inc. Props., Inc. 795 S.W.2d 225,227 (Tex.App-- Houston [14th Dist.] 1990, no writ). " [T]he right of... a prior secured creditor, to take possession of its collateral was superior to the right of... a mere judgment creditor, and [ the prior secured creditor] could regain possession of the collateral from the constable who had levied on the property."
TRCP 644 MAY GIVE DELIVERY BOND
Any personal property taken in execution may be returned to the defendant by the officer upon the delivery by the defendant to him of a bond, payable to the plaintiff, with two or more good and sufficient sureties, to be approved by the officer, conditioned that the property shall be delivered to the officer at the time and place named in the bond, to be sold according to law, or for the payment to the officer of a fair value thereof, which shall be stated in the bond.
TRCP 645 PROPERTY MAY BE SOLD BY DEFENDANT
Where property has been replevied, as provided in the preceding rule, the defendant may sell or dispose of the same, paying the officer the stipulated value thereof
TRCP 646 FORFEITED DELIVERY BOND
In case of the non-delivery of the property according to the terms of the delivery bond, and non-payment of the value thereof, the officer shall forthwith indorse the bond "Forfeited" and return the same to the clerk of the court or the justice of the peace from which the execution issued; whereupon, if the judgment remain unsatisfied in whole or in part, the clerk or justice shall issue execution against the principal debtor and the sureties on the bond for the amount due, not exceeding the stipulated value of the property, upon which execution no delivery bond shall be taken, which instruction shall be indorsed by the clerk or justice on the execution.
TRCP 646a SALE OF REAL PROPERTY
Real property taken by virtue of any execution shall be sold at public auction, at the courthouse door of the county, unless the court orders that such sale be at the place where the real property is situated, on the first Tuesday of the month, between the hours often o'clock, a.m. and four o'clock, p.m.
TRCP 647 NOTICE OF SALE OF REAL ESTATE
The time and place of sale of real estate under execution, order of sale, or venditioni exponas, shall be advertised by the officer by having the notice thereof published in the English language once a week for three consecutive weeks preceding such sale, in some newspaper published in said county. The first of said publications shall appear not less than twenty days immediately preceding the day of sale. Said notice shall contain a statement of the authority by virtue of which the sale is to be made, the time of levy, and the time and place of sale; it shall also contain a brief description of the property to be sold, and shall give the number of acres, original survey, locality in the county, and the name by which the land is most generally known, but it shall not be necessary for it to contain Field notes. Publishers of newspapers shall charge the legal rate of Two (2) Cents per word for the First insertion of such publication and One (1) Cent per word for such subsequent insertions, or such newspapers shall be entitled to charge for such publication at a rate equal to but not in excess of the published word or line rate of that newspaper for such class of advertising. If there be no newspaper published in the county, or none which will publish the notice of sale for the compensation herein Fixed, the officer shall then post such notice in writing in three public places in the county, one of which shall be at the courthouse door of such county, for at least twenty days successively next before the day of sale. The officer making the levy shall give the defendant, or his attorney, written notice of such sale, either in person or by mail, which notice shall substantially conform to the foregoing requirements.
Collum v. DeLoughter, 535 S.W.2d 390, 392 (Tex. App.-Texarkana 1976, writ refd n.r.e.). "[T]he specific language of [TRCP] 2 la imposes the requirement of registered mail upon the general provisions for 'mail' in [TRCP] 647."
TRCP 648 COURTHOUSE DOOR DEFINED
By the term "courthouse door" of a county is meant either of the principal entrances to the house provided by the proper authority for the holding of the district court. If from any cause there is no such house, the door of the house where the district court was last held in that county shall be deemed to be the courthouse door. Where the courthouse, or house used by the court, has been destroyed by fire or other cause, and another has not been designated by the proper authority, the place where such house stood shall be deemed to be the courthouse door.
Micrea, Inc. v. Eureka Life Ins. Co., 534 S.W.2d 348,358 (Tex.App- Fort Worth 1976, writ ref'd n.r.e.). "In general the 'Courthouse Door' is either of the (several) entrances to the building provided for the holding of the district court."
TRCP 649 SALE OF PERSONAL PROPERTY
Personal property levied on under execution shall be offered for sale on the premises where it is taken in execution, or at the courthouse door of the county, or at some other place if, owing to the nature of the property, it is more convenient to exhibit it to purchasers at such place. Personal property susceptible of being exhibited shall not be sold unless the same be present and subject to the view of those attending the sale, except shares of stock in joint stock or incorporated companies, and in cases where the defendant in execution has merely an interest without right to the exclusive possession in which case the interest of defendant may be sold and conveyed without the presence or delivery of the property. When a levy is made upon livestock running at large on the range, it is not necessary that such stock, or any part thereof, be present at the place of sale, and the purchaser at such sale is authorized to gather and pen such stock and select therefrom the number purchased by him.
TRCP 650 NOTICE OF SALE OF PERSONAL PROPERTY
Previous notice of the time and place of the sale of any personal property levied on under execution shall be given by posting notice thereof for ten days successively immediately prior to the day of sale at the courthouse door of any county and at the place where the sale is to be made.
TRCP 651 WHEN EXECUTION NOT SATISFIED
When the property levied upon does not sell for enough to satisfy the execution, the officer shall proceed anew, as in the first instance, to make the residue.
TRCP 652 PURCHASER FAILING TO COMPLY
If any person shall bid off property at any sale made by virtue of an execution, and shall fail to comply with the terms of the sale, he shall be liable to pay the plaintiff in execution twenty per cent on the value of the property thus bid off, besides costs, to be recovered on motion, Five days notice of such motion being given to such purchaser; and should the property on a second sale bring less than on the former, he shall be liable to pay to the defendant in execution all loss which he sustains thereby, to be recovered on motion as above provided.
Jackson v. Universal Life Ins. Co., 582 S.W2d207, 209 (Tex.App- Eastland 1979, writ refd n.r.e.). "[W]here a bidder fails to comply with the terms of an execution sale, he becomes liable under the express provisions of the rule, whether or not he acted in good faith."
TRCP 653 RESALE OF PROPERTY
When the terms of the sale shall not be complied with by the bidder the levying officer shall proceed to sell the same property again on the same day, if there be sufficient time; but if not, he shall readvertise and sell the same as in the first instance.
TRCP 654 RETURN OF EXECUTION
The levying officer shall make due return of the execution, in writing and signed by him officially, staling concisely what such officer has done in pursuance of the requirements of the writ and of the law. The return shall be filed with the clerk of the court or the justice of the peace as the case may be. The execution shall be returned forthwith if satisfied by the collection of the money or if ordered by the plaintiff or his attorney indorsed thereon.
Scott v. Wilson, 231 S.W.2d 912, 913 (Tex.App- Amarillo 1950, no writ). "[A] sheriffs return upon an execution or order of sale may be amended."
TRCP 655 RETURN OF EXECUTION BY MAIL
When an execution is placed in the hands of an officer of a county other than the one in which the judgment is rendered, return may be made by mail; but money cannot be thus sent except by direction of the party entitled to receive the same or his attorney of record.
TRCP 656 EXECUTION DOCKET
The clerk of each court shall keep an execution docket in which he shall enter a statement of all executions as they are issued by him, specifying the names of the parties, the amount of the judgment, the amount due thereon, the rate of interest when it exceeds six per cent, the costs, the date of issuing the execution, to whom delivered, and the return of the officer thereon, with the date of such return. Such docket entries shall be taken and deemed to be a record. The clerk shall keep an index and cross-index to the execution docket. When execution is in favor or against several persons, it shall be indexed in the name of each person. Any clerk who shall fail to keep said execution docket and index thereto, or shall neglect to make the entries therein, shall be liable upon his official bond to any person injured for the amount of damages sustained by such neglect.
Section 4 Garnishment
TRCP 657 JUDGMENT FINAL FOR GARNISHMENT
In the case mentioned in subsection 3, section 63.001, Civil Practice and Remedies Code, the judgment whether based upon a liquidated demand or an unliquidated demand, shall be deemed final and subsisting for the purpose of garnishment from and after the date it is signed, unless a supersede as bond shall have been approved and filed in accordance with Texas Rule of Appellate Procedure 47*.
Bank One v. Sunbelt Sav., 824 S.W.2d 557, 558 (Tex.l992). "Garnishment is a statutory proceeding whereby the property, money, or credits of a debtor in the possession of another are applied to the payment of the debt."
Westerman v. Comerica Bank-Texas, 928 S.W.2d 679, 682 (Tex.App.-San Antonio 1996, writ denied). "(T]he record contains conclusive summary judgment proof showing that when the garnishment action was actually finalized, the judgment was still a 'valid subsisting judgment'.... The fact that the underlying judgment was reversed 14 months after the garnishment judgment was rendered does not subsequently render the garnishment proceedings wrongful."
TRCP 658 APPLICATION FOR WRIT OF GARNISHMENT and ORDER
Either at the commencement of a suit or at any time during its progress the plaintiff may file an application for a writ of garnishment. Such application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other person having knowledge of relevant facts. The application shall comply with all statutory requirements and shall state the grounds for issuing the writ and the specific facts relied upon by the plaintiff to warrant the required findings by the court. The writ shall not be quashed because two or more grounds are stated conjunctively or disjunctively. The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence; provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated.
No writ shall issue before final judgment except upon written order of the court after a hearing, which may be ex parte. The court in its order granting the application shall make specific findings of facts to support the statutory grounds found to exist, and shall specify the maximum value of property or indebtedness that may be garnished and the amount of bond required of plaintiff. Such bond shall be in an amount which, in the opinion of the court, shall adequately compensate defendant in the event plaintiff fails to prosecute his
suit to effect, and pay all damages and costs as shall be adjudged against him for wrongfully suing out the writ of garnishment. The court shall further find in its order the amount of bond required of defendant to replevy, which, unless defendant exercises his option as provided under Rule 664, shall be the amount of plaintiffs claim, one year's accrual of interest if allowed by law on the claim, and the estimated costs of court. The order may direct the issuance of several writs at the same time, or in succession, to be sent to different counties.
El Periodico, Inc. v. Parks Oil Co., 917 S.W.2d 777, 779 (Tex.l996). "[The gamishor's] application did not meet the requirements of (TRCP] 658. (11] The allegation of [the garnishee's] indebtedness to [the judgment defendant] is made on belief of counsel, and the grounds of such belief are not specifically stated."
TRCP 658a BOND FOR GARNISHMENT
No writ of garnishment shall issue before final judgment until the party applying therefor has filed with the officer authorized to issue such writ a bond payable to the defendant in the amount fixed by the court's order, with sufficient surety or sureties as provided by statute, conditioned that the plaintiff will prosecute his suit to effect and pay to the extent of the penal amount of the bond all damages and costs as may be adjudged against him for wrongfully suing out such writ of garnishment. After notice to the opposite party, either before or after the issuance of the writ, the defendant or plaintiff may file a motion to increase or reduce the amount of such bond, or to question the sufficiency of the sureties. Upon hearing, the court shall enter its order with respect to such bond and the sufficiency of the sureties. Should it be determined from the garnishee's answer if such is not controverted that the garnishee is indebted to the defendant, or has in his hands effects belonging to the defendant, in an amount or value less than the amount of the debt claimed by the plaintiff, then after notice to the defendant the court in which such garnishment is pending upon hearing may reduce the required amount of such bond to double the sum of the garnishee's indebtedness to the defendant plus the value of the effects in his hands belonging to the defendant.
TRCP 659 CASE DOCKETED
When the foregoing requirements of these rules have been complied with, the judge, or clerk, or justice of the peace, as the case may be, shall docket the case in the name of the plaintiff as plaintiff and of the garnishee as defendant; and shall immediately issue a writ of garnishment directed to the garnishee, commanding him to appear before the court out of which the same is issued at or before 10 o'clock a.m. of the Monday next following the expiration of twenty days from the date the writ was served, if the writ is issued out of the district or county court; or the Monday next after the expiration of ten days from the date the writ was served, if the writ is issued out of the justice court. The writ shall command the garnishee to answer under oath upon such return date what, if anything, he is indebted to the defendant, and was when the writ was served, and what effects, if any, of the defendant he has in his possession, and had when such writ was served, and what other persons, if any, within his knowledge, are indebted to the defendant or have effects belonging to him in their possession.
Cloughlyv. NBC Bank-Seguin, 773 S.W.2d 652,658 (Tex.App.-San Antonio 1989, writ denied). "Although the statute contemplates a separate docketing, we do not find harm in proceeding with a garnishment action in the same cause number. Although this was an irregularity in procedure, the validity of the judgment was not affected."
TRCP 660 REPEALED
TRCP 661 FORM OF WRIT
The following form of writ may be used:
"The State of Texas.
"To E.F., Garnishee, greeting:
"Whereas, in the _____ Court of ___________ County (if a justice court, state also the number of the precinct), in a certain cause wherein A.B. is plaintiff and C.D. is defendant, the plaintiff, claiming an indebtedness against the said C.D. of ___________ dollars, besides interest and costs of suit, has applied for a writ of garnishment against you, E.F.; therefore you are hereby commanded to be and appear before said court at ________ in said county (if the writ is issued from the county or district court, here proceed: 'at 10 o'clock a.m. on the Monday next following the expiration of twenty days from the date of service hereof.' If the writ is issued from a justice of the peace court, here proceed: 'at or before 10 o'clock a.m. on the Monday next after the expiration of ten days from the date of service hereof.' In either event, proceed as follows:) then and there to answer upon oath what, if anything, you are indebted to the said C.D., and were when this writ was served upon you, and what effects, if any, of the said C.D. you have in your possession, and had when this writ was served, and what other persons, if any, within your knowledge, are indebted to the said C.D. or have effects belonging to him in their possession. You are further commanded NOT to pay to defendant any debt or to deliver to him any effects, pending further order of this court. Herein fail not, but make due answer as the law directs."
Bank One v. Sanbelt Sav., 824 S.W.2d 557, 558 (Tex.l992). "When a creditor wants to challenge title to funds held by a third party, the creditor should seek a writ of garnishment naming the nominal owner not the true owner. The court is then responsible for determining true ownership."
TRCP 662 DELIVERY OF WRIT
The writ of garnishment shall be dated and tested as other writs, and may be delivered to the sheriff or constable by the officer who issued it, or he may deliver it to the plaintiff, his agent or attorney, for that purpose.
Moody Nat'1 Bank v. Riebschlager, 946 S.W.2d 521, 523 n.l (Tex.App- Houston [14th Dist.] 1997, writ denied). "Private process servers are prohibited from executing writs of garnishment as only a sheriff or constable may deliver the writs to a garnishee."
TRCP 663 EXECUTION and RETURN OF WRIT
The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the gamishee, and shall make return thereof as of other citations.
TRCP 663a SERVICE OF WRIT ON DEFENDANT
The defendant shall be served in any manner prescribed for service of citation or as provided in Rule 2 la with a copy of the writ of garnishment, the application, accompanying affidavits and orders of the court as soon as practicable following the service of the writ. There shall be prominently displayed on the face of the copy of the writ served on the defendant, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following:
"To ________, Defendant:
"You are hereby notified that certain properties alleged to be owned by you have been garnished. If you claim any rights in such property, you are advised: "YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT."
Mendoza v. Lake Fruia Invs., Inc., 962 S.W.2d 650, 652 (Tex.App- Corpus Christi 1998, no pet.). TRCP "663a requires strict compliance. [W] hen a judgment debtor voluntarily answers and appears in a garnishment proceeding, the debtor waives only irregularities in the writ of garnishment, such as defects in the affidavit or bond. Voluntary appearance does not waive the requirements of the writ itself. [ If ] Rights under a writ of garnishment are determined by priority in time, which itself is determined by service of the writ. Without proper service of the writ on the debtor, no control or custody of his property can be gained by his answer."
TRCP 664 DEFENDANT MAY REPLEVY
At any time before judgment, should the garnished property not have been previously claimed or sold, the defendant may replevy the same, or any part thereof, or the proceeds from the sale of the property if it has been sold under order of the court, by giving bond with sufficient surety or sureties as provided by statute, to be approved by the officer who levied the writ, payable to plaintiff, in the amount fixed by the court's order, or, at the defendant's option, for the value of the property or indebtedness sought to be replevied (to be estimated by the officer), plus one year's interest thereon at the legal rate from the date of the bond, conditioned that the defendant, garnishee, shall satisfy, to the extent of the penal amount of the bond, any judgment which may be rendered against him in such action. On reasonable notice to the opposing party (which may be less than three days) either party shall have the right to prompt judicial review of the amount of bond required, denial of bond, sufficiency of sureties, and estimated value of the property, by the court which authorized issuance of the writ. The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court shall forthwith enter its order either approving or modifying the requirements of the officer or of the court's prior order, and such order of the court shall supersede and control with respect to such matters.
On reasonable notice to the opposing party (which may be less than three days) the defendant shall have the right to move the court for a substitution of property, of equal value as that garnished, for the property garnished. Provided that there has been located sufficient property of the defendant's to satisfy the order of garnishment, the court may authorize substitution of one or more items of defendant's property for all or for part of the property garnished. The court shall first make findings as to the value of the property to be substituted. If property is substituted, the property released from garnishment shall be delivered to defendant, if such property is personal property, and all liens upon such property from the original order of garnishment or modification thereof shall be terminated. Garnishment of substituted property shall be deemed to have existed from date of garnishment on the original property garnished, and no property on which liens have become affixed since the date of garnishment of the original property may be substituted.
Woodall v. Clark, 802 S.W.2d 415,418 (Tex.App- Beaumont 1991, no writ). "[O]nce appellant's Replevy Bond was challenged by appellee, a right provided to appellee by [TRCP] 664, the trial court was required to review, among other things, the sufficiency of the sureties."
TRCP 664a DISSOLUTION OR MODIFICATION OF WRIT OF GARNISHMENT
A defendant whose property or account has been garnished or any intervening party who claims an interest in such property or account, may by sworn written motion, seek to vacate, dissolve or modify the writ of garnishment, and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic. Such motion shall admit or deny each finding of the order directing the issuance of the writ except where the movant is unable to admit or deny the finding, in which case movant shall set forth the reasons why he cannot admit or deny. Unless the parties agree to an extension of time, the motion shall be heard promptly, after reasonable notice to the plaintiff (which may be less than three days), and the issue shall be determined not later than ten days after the motion is filed. The filing of the motion shall stay any further proceedings under the writ, except for any orders concerning the care, preservation or sale of any perishable property, until a hearing is had, and the issue is determined. The writ shall be dissolved unless, at such hearing, the plaintiff shall prove the grounds relied upon for its issuance, but the court may modify its previous order granting the writ and the writ issued pursuant thereto. The movant shall, however, have the burden to prove that the reasonable value of the property garnished exceeds the amount necessary to secure the debt, interest for one year, and probable costs. He shall also have the burden to prove facts to justify substitution of property.
The court's determination may be made upon the basis of affidavits, if uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the parties shall submit evidence. The court may make all such orders including orders concerning the care, preservation or disposition of the property (or the proceeds therefrom if the same has been sold), as justice may require. If the movant has given a replevy bond, an order to vacate or dissolve the writ shall vacate the replevy bond and discharge the sureties thereon, and if the court modifies its order or the writ issued pursuant thereto, it shall make such further orders with respect to the bond as may be consistent with its modification.
Swiderski v. Victoria Bank & Trust Co., 706 S.W.2d 676, 678 (Tex.App- Corpus Christi 1986, writ refd n.r.e.)- A TRCP 664a "hearing is a distinct proceeding from the writ of garnishment proceeding between the garnishor and garnishee. ... The issue to be determined in a Rule 664a hearing is that 'the plaintiff shall prove the ground relied upon for its (the writ of garnishment's) issuance.' [It] Therefore, at a Rule 664a hearing, the plaintiff does not have to prove that the garnishee is indebted to the defendant debtor...."
Huie-Clark Jt.V. v. American States Ins. Co., 629 S.W.2d 109, 110-11 (Tex.App-Dallas 1981, writ refd n.r.e.). Because "the garnishor [has] the burden to prove the grounds relied upon for issuance of the writ [of garnishment,] any failure to carry that burden [on each part of the writ] would require the trial court to dissolve the writ."
TRCP 665 ANSWER TO WRIT
The answer of the garnishee shall be under oath, in writing and signed by him, and shall make true answers to the several matters inquired of in the writ of garnishment.
TRCP 666 GARNISHEE DISCHARGED
If it appears from the answer of the garnishee that he is not indebted to the defendant, and was not so indebted when the writ of garnishment was served upon him, and that he has not in his possession any effects of the defendant and had not when the writ was served, and if he has either denied that any other persons within his knowledge are indebted to the defendant or have in their possession effects belonging to the defendant, or else has named such persons, should the answer of the garnishee not be controverted as hereinafter provided, the court shall enter judgment discharging the garnishee.
Rowley v. Lake Area Nat'1 Bank, 976 S.W.2d 715, 720 (Tex.App- Houston [1st Dist.] 1998, pet. denied). TRCP 666 "requires three items for discharge: (1) a denial that the garnishee is indebted to the defendant; (2) a denial that the garnishee has effects of the defendant; and (3) a denial of knowledge of third persons who may be indebted to the defendant or have effects of the defendant, or the names of such persons. t 721: (T]he answer did not fully comply with [TRCP] 666 because of the lack of a statement concerning knowledge of third persons who may be indebted to the defendant."
A Wolfson's, Inc. v. First State Bank, 752 S.W.2d 614,617 (Tex.App- Corpus Christi 1988, writ denied). "Since appellant's answer was not controverted, the allegations in the answer must be taken as true and the trial court was required by law to discharge the appellant."
TRCP 667 JUDGMENT BY DEFAULT
If the garnishee fails to file an answer to the writ of garnishment at or before the time directed in the writ, it shall be lawful for the court, at any time after judgment shall have been rendered against the defendant, and on or after appearance day, to render judgment by default, as in other civil cases, against such garnishee for the full amount of such judgment against the defendant together with all interest and costs that may have accrued in the main case and also in the garnishment proceedings. The answer of the garnishee may be filed as in any other civil case at any time before such default judgment is rendered.
Falderbaum v. Lowe, 964 S.W.2d 744, 747 (Tex. App.-Austin 1998, no pet). "[Appellant] cannot now claim that the district court lacks subject-matter jurisdiction to enforce the garnishment order when she failed to properly challenge the trial court's jurisdiction when the writ of garnishment was originally issued."
TRCP 668 JUDGMENT WHEN GARNISHEE IS INDEBTED
Should it appear from the answer of the garnishee or should it be otherwise made to appear and be found by the court that the garnishee is indebted to the defendant in any amount, or was so indebted when the writ of garnishment was served, the court shall render judgment for the plaintiff against the garnishee for the amount so admitted or found to be due to the defendant from the garnishee, unless such amount is in excess of the amount of the plaintiff's judgment against the defendant with interest and costs, in which case, judgment shall be rendered against the garnishee for the full amount of the judgment already rendered against the defendant, together with interest and costs of the suit in the original case and also in the garnishment proceedings. If the garnishee fail or refuse to pay such judgment rendered against him, execution shall issue thereon in the same manner and under the same conditions as is or may be provided for the issuance of execution in other cases.
Healy v. Wick Bldg. Sys., Inc., 560 S.W.2d 713,717 (Tex.App- Dallas 1977, writ refd n.r.e.). TRCP 668 "authorizes judgment only where the garnishee is indebted to the defendant and then only to the extent of such indebtedness."
TRCP 669 JUDGMENT FOR EFFECTS
Should it appear from the garnishee's answer, or otherwise, that the garnishee has in his possession, or had when the writ was served, any effects of the defendant liable to execution, including any certificates of stock in any corporation or joint stock company, the court shall render a decree ordering sale of such effects under execution in satisfaction of plaintiffs judgment and directing the garnishee to deliver them, or so much thereof as shall be necessary to satisfy plaintiffs judgment, to the proper officer for that purpose.
Healy v. Wick Bldg. Sys., Inc., 560 S.W.2d 713,717 (Tex.App.-Dallas 1977, writ refd n.r.e.). TRCP 669 "provides for a sale of effects in the hands of the garnishee that may belong to the defendant in order to satisfy the plaintiffs judgment against the defendant."
TRCP 670 REFUSAL TO DELIVER EFFECTS
Should the garnishee adjudged to have effects of the defendant in his possession, as provided in the preceding rule, fail or refuse to deliver them to the sheriff or constable on such demand, the officer shall immediately make return of such failure or refusal, whereupon on motion of the plaintiff, the garnishee shall be cited to show cause upon a date to be Fixed by the court why he should not be attached for contempt of court for such failure or refusal. If the garnishee fails to show some good and sufficient excuse for such failure or refusal, he shall be fined for such contempt and imprisoned until he shall deliver such effects.
Cohen v. Advance Imports, Inc., 597 S.W.2d 449, 451 (Tex.App- Dallas 1980, writ refd n.r.e.). TRCP 670 "provides that if the garnishee fails to deliver the defendant's effects to the officer on demand, and does not show a good excuse for such failure, he may be fined for contempt and imprisoned until he makes such delivery."
TRCP 671 REPEALED
TRCP 672 SALE OF EFFECTS
The sale so ordered shall be conducted in all respects as other sales of personal property under execution; and the officer making such sale shall execute a transfer of such effects or interest to the purchaser, with a brief recital of the judgment of the court under which the same was sold.
TRCP 673 MAY TRAVERSE ANSWER
If the plaintiff should not be satisfied with the answer of any garnishee, he may controvert the same by his affidavit staling that he has good reason to believe, and does believe, that the answer of the garnishee is incorrect, stating in what particular he believes the same to be incorrect. The defendant may also, in like manner, controvert the answer of the garnishee.
Goodson v. Carr, 428 S.W.2d 875,878 (Tex.App- Houston [14th Dist.] 1968, writ refd n.r.e.). "[I]f the [P] was not satisfied with the answer of the garnishee it was her duty to controvert under oath the answer and allege therein the facts which she believed to be true."
TRCP 674 TRIAL OF ISSUE
If the garnishee whose answer is controverted, is a resident of the county in which the proceeding is pending, an issue shall be formed under the direction of the court and tried as in other cases.
First Nat'l Bank v. Steves Sash & Door Co., 468 S.W.2d 133, 138 (Tex.App- San Antonio 1971, writ refd n.r.e.). When the garnishor filed an affidavit controverting the answer of the nonresident garnishee, the court of the county in which the garnishor resided "lost jurisdiction to proceed further, and any proceedings thereafter held were a nullity of no force and effect."
TRCP 675 DOCKET and NOTICE
The clerk of the court or the justice of the peace, on receiving certified copies filed in the county of the garnishee's residence under the provisions of the statutes, shall docket the case in the name of the plaintiff as plaintiff, and of the garnishee as defendant, and issue a notice to the garnishee, staling that his answer has been so controverted, and that such issue will stand for trial on the docket of such court. Such notice shall be directed to the garnishee, be dated and tested as other process from such court, and served by delivering a copy thereof to the garnishee. It shall be returnable, if issued from the district or county court, at ten o'clock a.m. of the Monday next after the expiration of twenty days from the date of its service; and if issued from the justice court, to the next term of such court convening after the expiration of twenty days after the service of such notice.
Atteberry, Inc. v. Standard Brass & Mfg. Co., 270 S.W.2d 252, 255 (Tex.App-Waco 1954, writ refd n.r.e.). "[T]he issuance of the writ of garnishment must come from the court where the judgment was rendered, but where the garnishee is the resident of another county and is not entitled to be discharged on its answer the cause must be docketed and tried in the court having jurisdiction of the subject matter in the county of the residence of the garnishee...."
TRCP 676 ISSUE TRIED AS IN OTHER CASES
Upon the return of such notice served, an issue shall be formed under the direction of the court and tried as in other cases.
TRCP 677 COSTS
Where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against the plaintiff; where the answer of the garnishee has not been controverted and the garnishee is held thereon, such costs shall be taxed against the defendant and included in the execution provided for in this section; where the answer is contested, the costs shall abide the issue of such contest.
Rowley v. Lake Area Nat'l Bank, 976 S.W.2d 715, 721 (Tex.App- Houston [1st Dist.] 1998, pet. denied). " (T]he term 'costs' has consistently been interpreted to include attorney's fees."
Moody Nat'l Bank v. Riebschlager, 946 S.W.2d 521, 525 (Tex.App.-Houston [14th Dist] 1997, writ denied). "An attorney's affidavit alone constitutes expert testimony that will support an award of attorney's fees in a summary judgment [garnishment] proceeding."
TRCP 678 GARNISHEE DISCHARGED ON PROOF
It shall be a sufficient answer to any claim of the defendant against the garnishee founded on an indebtedness of such garnishee, or on the possession by him of any effects, for the garnishee to show that such indebtedness has been paid, or such effects, including any certificates of stock in any incorporated or joint stock company, have been delivered to any sheriff or constable as provided for in Rule 669.
TRCP 679 AMENDMENT
Clerical errors in the affidavit, bond, or writ of garnishment or the officer's return thereof, may upon application in writing to the judge or justice of the court in which the suit is filed, and after notice to the opponent, be amended in such manner and on such terms as the judge or justice shall authorize by an order entered in the minutes of the court (or noted on the docket of the justice of the peace), provided such amendment appears to the judge or justice to be in furtherance of justice.
Metmplex Factors, Inc. v. First Nat'l Bank, 610 S.W.2d 862,866 (Tex.App-Fort Worth 1980, writ refd n.r.e.). TRCP 679 "authorizes correction of clerical errors (such as the missing seal) but does not apply to substantive matters, such as the sufficiency of the required supporting affidavits or other deficiencies in the application for writ of garnishment."
Section 5 Injunctions
TRCP 680 TEMPORARY RESTRAINING ORDER
No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be Filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so Fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. No more than one extension may be granted unless subsequent extensions are unopposed. In case a temporary restraining order is granted without notice, the application for a temporary injunction shall be set down for hearing at the earliest possible date and takes precedence of all matters except older matters of the same character; and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought.
Ex Parte Lesikar, 899 S.W.2d 654,654 (Tex.l995). "Extensions of temporary restraining orders, absent some special statutory authority... must meet the limitations of [TRCP] 680, including in particular written orders and written extensions. An oral extension of a TRO is ineffective, and the contemnor must have notice of the actual written extension before he can be charged with contempt."
lsuani v. Manske-Sheffield Radiology Group 802 S.W.2d 235,236 (Tex.l991). "If, while on the appeal of the granting or denying of the temporary injunction, the trial court renders final judgment, the case on appeal becomes moot."
Davis v. Huey, 571 S.W.2d 859,862 (Tex.l978). "At a hearing upon the request for a temporary injunction the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. ... On appeal the reviewing court is limited in its consideration as to whether the trial court abused its discretion in making the foregoing determination."
TRCP 681 TEMPORARY INJUNCTIONS NOTICE
No temporary injunction shall be issued without notice to the adverse party.
State v. Cook United, Inc., 469 S.W.2d 709, 712 (Tex.l971). "In the absence of notice to or service of citation upon the Attorney General of the State of Texas ... the temporary injunction is hereby modified to enjoin only the county and district attorneys of Tarrant and McLennan Counties [who had notice], and shall have no effect on the Attorney General of the State of Texas or the other district and county attorneys in this State."
Liberty Lending Servs., Inc. v. Musselwhite, __ S.W.3d__,__(Tex.App-- Houston [14th Dist.) 1999, n.p.h.) (No. 14-98-01372-CV; 8-26-99). TRCP 681 "implies that the adverse party will have an adequate opportunity to be heard. The opportunity to be heard and present evidence must amount to more than the mere right to cross-examine the other party's witnesses. Although a trial court may impose reasonable limitations upon the parties' presentation of evidence in a temporary injunction hearing, the trial court may not deprive a party of the right to offer any evidence."
PILF IMS., Inc. v. Arlitt, 940 S.W.2d 255, 260 (Tex.App.-San Antonio 1997, no writ). " [N]otice on a motion for injunctive relief is inadequate to the extent a non-movant party, who is ultimately enjoined, is not served with notice of the hearing."
TRCP 682 SWORN PETITION
No writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief.
Walling v. Metcalfe, 863 S.W.2d 56,57 (Tex.l993). "A trial court may grant a temporary writ of injunction to preserve the status quo pending trial even though the applicant's prayer does not include a claim for equitable relief following determination of the merits. ... In such cases, however, a temporary injunction should only issue if the applicant establishes a probable right on Final trial to the relief sought, and a probable injury in the interim."
Crystal Media, Inc. v. HCI Acquisition Corp., 773 S.W.2d 732,734 (Tex.App- San Antonio 1989, no writ). "If the insufficiency of the verification is not objected to prior to the introduction of evidence the defect has been waived. ... Further, the court allowed an amendment of the verification...."
TRCP 683 FORM and SCOPE OF INJUNCTION OR RESTRAINING ORDER
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. The appeal of a temporary injunction shall constitute no cause for delay of the trial.
Interfirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.l986). "The requirements of [TRCP] 683 are mandatory and must be strictly followed. When a temporary injunction order does not adhere to the requirements of Rule 683 the injunction order is subject to being declared void and dissolved."
Ex parte Slavin, 412 S.W.2d 43,44 (Tex.l967). An injunction decree "must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him."
Masgrace v. Brookhaven Lake Owners, 990 S.W.2d 386, 400 (Tex.App- Texarkana 1999, pet. denied). TRCP 683 "prohibits the incorporation of another document into the injunction order."
Fairfield Estates L.P. v. Griffin, 986 S.W.2d 719, 723 (Tex.App- Eastland 1999, n.p.h.). "(A] trial court abuses its discretion by entering an 'overly-broad' injunction which grants 'more relief than a plaintiff is entitled to by enjoining a defendant from conducting lawful activities or from exercising legal rights."
Fasken v. Darby, 901 S.W.2d 591, 592-93 (Tex. App.-El Paso 1995, no writ). "[T]he trial court must state in the injunction the reasons why the court deems it proper to issue the injunction, including the reasons why the applicant will suffer injury if the injunction is not issued. [TRCP] 97(d). An injunction that fails to identify the harm that will be suffered if it does not issue must be declared void and be dissolved. This rule operates to invalidate an injunction even when the complaining party fails to bring the error to the trial court's attention."
TRCP 684 APPLICANT'S BOND
In the order granting any temporary restraining order or temporary injunction, the court shall fix the amount of security to be given by the applicant. Before the issuance of the temporary restraining order or temporary injunction the applicant shall execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by the clerk, in the sum Fixed by the judge, conditioned that the applicant will abide the decision which may be made in the cause, and that he will pay all sums of money and costs that may be adjudged against him if the restraining order or temporary injunction shall be dissolved in whole or in part.
Where the temporary restraining order or temporary injunction is against the State, a municipality, a State agency, or a subdivision of the State in its governmental capacity, and is such that the State, municipality, State agency, or subdivision of the State in its governmental capacity, has no pecuniary interest in the suit and no monetary damages can be shown, the bond shall be allowed in the sum Fixed by the judge, and the liability of the applicant shall be for its face amount if the restraining order or temporary injunction shall be dissolved in whole or in part. The discretion of the trial court in fixing the amount of the bond shall be subject to review.
Provided that under equitable circumstances and for good cause shown by affidavit or otherwise the court rendering judgment on the bond may allow recovery for less than its full face amount, the action of the court to be subject to review.
DeSantis v. Wackenhut Corp., 793 S.W.2d 67 685-86 (Tex.l990). "To prevail upon [a suit on a bond the claimant must prove that the [TRO] or temporary injunction was issued or perpetuated when it should not have been, and that it was later dissolved. ... The claimant need not prove that the I TRO] or temporary injunction was obtained maliciously or without probable cause."
Ex parte Jordan, 787 S.W.2d 367,368 (Tex.l990). Jordan "argues the order [for temporary injunction] is void because it does not require a separate bond as required by [TRCP] 684. We agree."
Ex parte Lesher, 651 S.W.2d 734, 736 (Tex.l983). "(T]he provisions of [TRCP] 684 are mandatory and an order of injunction issued without a bond is void on its face."
TRCP 685 FILING and DOCKETING
Upon the grant of a temporary restraining order or an order Fixing a time for hearing upon an application for a temporary injunction, the party to whom the same is granted shall File his petition therefor, together with the order of the judge, with the clerk of the proper court; and, if such orders do not pertain to a pending suit in said court, the cause shall be entered on the docket of the court in its regular order in the name of the party applying for the writ as plaintiff and of the opposite party as defendant.
TRCP 686 CITATION
Upon the filing of such petition and order not pertaining to a suit pending in the court, the clerk of such court shall issue a citation to the defendant as in other civil cases, which shall be served and returned in like manner as ordinary citations issued from said court; provided, however, that when a temporary restraining order is issued and is accompanied with a true copy of plaintiffs petition, it shall not be necessary for the citation in the original suit to be accompanied with a copy of plaintiffs petition, nor contain a statement of the nature of plaintiffs demand, but it shall be sufficient for said citation to refer to plaintiffs claim as set forth in a true copy of plaintiffs petition which accompanies the temporary restraining order; and provided further that the court may have a hearing upon an application for a temporary restraining order or temporary injunction at such time and upon such reasonable notice given in such manner as the court may direct.
TRCP 687 REQUISITES OF WRIT
The writ of injunction shall be sufficient if it contains substantially the following requisites:
(a) Its style shall be, "The State of Texas."
(b) It shall be directed to the person or persons enjoined.
(c) It must state the names of the parties to the proceedings, plaintiff and defendant, and the nature of the plaintiff's application, with the action of the judge thereon.
(d) It must command the person or persons to whom it is directed to desist and refrain from the commission or continuance of the act enjoined, or to obey and execute such order as the judge has seen proper to make.
(e) If it is a temporary restraining order, it shall state the day and time set for hearing, which shall not exceed fourteen days from the date of the court's order granting such temporary restraining order; but if it is a temporary injunction, issued after notice, it shall be made returnable at or before ten o'clock a.m. of the Monday next after the expiration of twenty days from the date of service thereof, as in the case of ordinary citations.
(f) It shall be dated and signed by the clerk officially and attested with the seal of his office and the date of its issuance must be indorsed thereon.
TRCP 688 CLERK TO ISSUE WRIT
When the petition, order of the judge and bond have been filed, the clerk shall issue the temporary restraining order or temporary injunction, as the case may be, in conformity with the terms of the order, and deliver the same to the sheriff or any constable of the county of the residence of the person enjoined, or to the applicant, as the latter shall direct. If several persons are enjoined, residing in different counties, the clerk shall issue such additional copies of the writ as shall be requested by the applicant.
Schliemann v. Garcia, 685 S.W.2d 690, 693 (Tex. App.-San Antonio 1984, orig. proceeding). The "order was improper for several reasons. ... The injunction was not properly issued or served."
TRCP 689 SERVICE and RETURN
The officer receiving a writ of injunction shall indorse thereon the date of its receipt by him, and shall forthwith execute the same by delivering to the party enjoined a true copy thereof. The original shall be returned to the court from which it issued on or before the return day named therein with the action of the officer indorsed thereon or annexed thereto showing how and when he executed the same.
TRCP 690 THE ANSWER
The defendant to an injunction proceeding may answer as in other civil actions; but no injunction shall be dissolved before final hearing because of the denial of the material allegations of the plaintiff's petition, unless the answer denying the same is verified by the oath of the defendant.
Executive Tele-Comm. Sys., Inc. v. Buchbaum, 669 S.W.2d 400,403 (Tex.App- Dallas 1984, no writ). "The only prescribed response for a defendant to a temporary injunction proceeding is pronounced in [TRCP] 690, and the failure to answer does not impair the defendant's right to a full hearing. ... [A] party seeking an injunction cannot rely on the verified pleading rules to limit the defense of the nonmovant."
TRCP 691 BOND ON DISSOLUTION
Upon the dissolution of an injunction restraining the collection of money, by an interlocutory order of the court or judge, made in term time or vacation, if the petition be continued over for trial, the court or judge shall require of the defendant in such injunction proceedings a bond, with two or more good and sufficient sureties, to be approved by the clerk of the court, payable to the complainant in double the amount of the sum enjoined, and conditioned to refund to the complainant the amount of money, interest and costs which may be collected of him in the suit or proceeding enjoined if such injunction is made perpetual on final hearing. If such injunction is so perpetuated, the court, on motion of the complainant, may enter judgment against the principal and sureties in such bond for such amount as may be shown to have been collected from such defendant.
TRCP 692 DISOBEDIENCE
Disobedience of an injunction may be punished by the court or judge, in term time or in vacation, as a contempt. In case of such disobedience, the complainant, his agent or attorney, may file in the court in which such injunction is pending or with the judge in vacation, his affidavit staling what person is guilty of such disobedience and describing the acts constituting the same; and thereupon the court or judge shall cause to be issued an attachment for such person, directed to the sheriff or any constable of any county, and requiring such officer to arrest the person therein named if found within his county and have him before the court or judge at the time and place named in such writ; or said court or judge may issue a show cause order, directing and requiring such person to appear on such date as may be designated and show cause why he should not be adjudged in contempt of court. On return of such attachment or show cause order, the judge shall proceed to hear proof; and if satisfied that such person has disobeyed the injunction, either directly or indirectly, may commit such person to jail without bail until he purges himself of such contempt, in such manner and form as the court or judge may direct.
City of San Antonio v. Singleton, 858 S.W.2d 411 412 (Tex.l993). "A trial court generally retains jurisdiction to review, open, vacate or modify a permanent injunction upon a showing of changed conditions. The authority to exercise that jurisdiction, however, must be balanced against principles of res judicata. Whether right or wrong, an injunction 'is not subject to impeachment in its application to the conditions that existed a its making.' [ If ] There is no evidence in the record that conditions affecting the trial court's judgment have changed since the time it was originally rendered."
Ex parte Jackman, 663 S.W.2d 520, 524 (Tex App.-Dallas 1983, no writ). "The injunction must be obeyed irrespective of the ultimate validity of the order and a defendant cannot avoid compliance with the commands, or excuse his violation, of the injunction by simply moving to dissolve it or by the pendency of a motion to modify it."
TRCP 693 PRINCIPLES OF EQUITY APPLICABLE
The principles, practice and procedure governing courts of equity shall govern proceedings in injunctions when the same are not in conflict with these rules or the provisions of the statutes.
State v. Texas Pet Foods, Inc., 591 S.W.2d 800,804 (Tex-1979). "[I]njunctive relief is proper when the trial court finds it justified under the rules of equity, not withstanding a defendant's cessation of the activity or solemn promises to cease the activity. At 805: When it is determined that [a] statute is being violated, it is within the province of the district court to restrain it. The doctrine of balancing the equities has no application to ... statutorily authorized injunctive relief."
TRCP 693a BOND IN DIVORCE CASE
In a divorce case the court in its discretion may dispense with the necessity of a bond in connection with an ancillary injunction in behalf of one spouse against the other.
Section 6 Mandamus
TRCP 694 NO MANDAMUS WITHOUT NOTICE
No mandamus shall be granted by the district or county court on ex parte hearing, and any peremptory mandamus granted without notice shall be abated on motion.
Dallas Cty. Comm'r Ct. v. Mays, 747 S.W.2d 842 846 (Tex.App- Dallas 1988, orig. proceeding). "These respondents concede that they did not give relator notice and a hearing before entering these orders. .. We conclude that these last 3 orders are essentially writs of mandamus. Accordingly, we hold that these .' respondents have contravened [TRCP] 694 because mandamus cannot issue ex parte."
Section 7 Receivers
TRCP 695 NO RECEIVER OF IMMOVABLE PROPERTY APPOINTED WITHOUT NOTICE
Except where otherwise provided by statute, no receiver shall be appointed without notice to take charge of property which is fixed and immovable. When an application for appointment of a receiver to take possession of property of this type is filed, the judge or court shall set the same down for hearing and notice of such hearing shall be given to the adverse party by serving notice thereof not less than three days prior to such hearing. If the order finds that the defendant is a nonresident or that his whereabouts is unknown, the notice may be served by affixing the same in a conspicuous manner and place upon the property or if that is impracticable it may be served in such other manner as the court or judge may require.
Gray v. PHI Resources, Ltd., 710 S.W.2d 566, 567 (Tex.l986). "In this case, no citation was issued, but instead, notice was provided by a 3-day posting of the petition. ... [ T ] he Sept. 7 order did not comply with the terms of [TRCP 695]. At 568: Nonetheless, the 3-day posting of the petition is analogous to citation by publication ... or other substituted service.... Thus, the successors to R.L. Robbins' interest were entitled to bring their motion for new trial within two years from the date the judgment was signed."
Rusk v. Rusk, __ S.W.3d __, __ (Tex.App-Houston [14th Dist] 1999, n.p.h.) (No. 14-97-00983- CV; 9-30-99). "We would hold that [TRCP] 695 is applicable to the appointment of receivers in marriage dissolution cases involving fixed and immovable property.
Otherwise, every divorce proceeding could give rise to un-noticed, non-pled, last-second arguments for appointment of a receiver, as occurred in this case."
Continental Homes Co. v. Hilltown Prop. Owners Ass'n, Inc., 529 S.W.2d 293, 296 (Tex.App.-Fort Worth 1975, no writ). "Real estate is 'Fixed and immovable property' within the meaning of [TRCP] 695, and the trial court committed reversible error in this case in appointing a receiver over the defendants' real estate ... without giving the defendants the notice required by Rule 695...."
TRCP 695a BOND and BOND IN DIVORCE CASE
No receiver shall be appointed with authority to take charge of property until the party applying therefor has Filed with the clerk of the court a good and sufficient bond, to be approved by such clerk, payable to the defendant in the amount fixed by the court, conditioned for the payment of all damages and cost in such suit, in case it should be decided that such receiver was wrongfully appointed to take charge of such property. The amount of such bond shall be fixed at a sum sufficient to cover all such probable damages and costs. In a divorce case the court or judge, as a matter of discretion, may dispense with the necessity of a bond.
Sclafani v. Sclafani, 870 S.W.2d 608,609 (Tex.App. -Houston [1st Dist] 1993, writ denied). "(Appellant] contends that the trial court erred ... in ordering the receiver to sell the property because [appellee] did not file an applicant's bond, in violation of [TRCP] 695&.At n.2: [W] hile this proceeding was pending in this Court, Susan filed an applicant's bond, making Richard's complaint about the lack of a bond moot."
Young v. Young, 765 S.W.2d 440,444 (Tex.App- Dallas 1988, no writ). "When the trial court appoints a receiver in a divorce case, it may, at its discretion, dispense with the necessity of a bond."
Section 8 Sequestration
TRCP 696 APPLICATION FOR WRIT OF SEQUESTRATION & ORDER
Either at the commencement of a suit or at any time during its progress the plaintiff may file an application for a writ of sequestration. The application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other persons having knowledge of relevant facts. The application shall comply with all statutory requirements and shall state the grounds for issuing the writ, including the description of the property to be sequestered with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which it is located, and the specific facts relied upon by the plaintiff to warrant the required findings by the court. The writ shall not be quashed because two or more grounds are stated conjunctively or disjunctively. The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence; provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated. No writ shall issue except upon written order of the court after a hearing, which may be ex parte. The court, in its order granting the application, shall make specific findings of facts to support the statutory grounds found to exist, and shall describe the property to be sequestered with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which it is located. Such order shall further specify the amount of bond required of plaintiff which shall be in an amount which, in the opinion of the court, shall adequately compensate defendant in the event plaintiff fails to prosecute his suit to effect and pay all damages and costs as shall be adjudged against him for wrongfully suing out the writ of sequestration including the elements of damages stated in Sections 62.044 and 62.045, Civil Practice and Remedies Code. The court shall further find in its order the amount of bond required of defendant to replevy, which shall be in an amount equivalent to the value of the property sequestered or to the amount of plaintiffs claim and one year's accrual of interest if allowed by law on the claim, whichever is the lesser amount, and the estimated costs of court. The order may direct the issuance of several writs at the same time, or in succession, to be sent to different counties.
Man's v. South Tex. Nat'l Bank, 686 S.W.2d 67.' 678 (Tex.App- San Antonio 1985, writ refd n.r.e.). creditor may allege the value of the total inventory; it is not necessary to allege the value of each item.
Bumett Trailers, Inc. v. Poison, 387 S.W.2d 692, 695 (Tex.App- San Antonio 1965, writ refd n.r.e.). To obtain exemplary damages, there must be "a finding that in bringing the suit and causing the writ of sequestration to issue [P] was activated by malice, or that [P] caused the writ of sequestration to issue without probable cause."
TRCP 697 PETITION
If the suit be in the district or county court, no writ of sequestration shall issue, unless a petition shall have been first Filed therein, as in other suits in said courts.
TRCP 698 BOND FOR SEQUESTRATION
No writ of sequestration shall issue until the party applying therefor has filed with the officer authorized to issue such writ a bond payable to the defendant in the amount fixed by the court's order, with sufficient surety or sureties as provided by statute to be approved by such officer, conditioned that the plaintiff will prosecute his suit to effect and pay to the extent of the penal amount of the bond all damages and costs as may be adjudged against him for wrongfully suing out such writ of sequestration, and plaintiff may further condition the bond pursuant to the provisions of Rule 708, in which case he shall not be required to give additional bond to replevy unless so ordered by the court.
After notice to the opposite party, either before or after the issuance of the writ, the defendant or plaintiff may file a motion to increase or reduce the amount of such bond, or to question the sufficiency of the sureties thereon, in the court in which such suit is pending. Upon hearing, the court shall enter its order with respect to such bond and sufficiency of the sureties as justice may require.
Kelso v. Hanson, 388 S.W.2d 396,399 (Tex.l965: "It is apparent ... that the sequestration bond require by [TRCP] 698 and the replevy bond required by [TRCP] 708 serve two different purposes, and are conditioned against different contingencies. The sequestration bond guarantees the payment of damages an costs in case it is decided that the sequestration was wrongfully issued."
Barfleld v. Brogdon, 560 S.W.2d 787, 792 (Tex. App.-Amarillo 1978, writ refd n.r.e.). "The filing of a sequestration bond does not preclude actual damages. On the contrary it guarantees the payment of damages and costs in case it is decided that the sequestration was wrongfully issued."
TRCP 699 REQUISITES OF WRIT
The writ of sequestration shall be directed "To the Sheriff or any Constable within the State of Texas" (not naming a specific county) and shall command him to take into his possession the property, describing the same as it is described in the application or affidavits, if to be found in his county, and to keep the same subject to further orders of the court, unless the same is replevied. There shall be prominently displayed on the face of the writ, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following: "YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT."
Lindsey v. Williams, 228 S.W.2d 243, 248 (Tex. App.-Texarkana 1950, no writ). "The affidavit, the bond for sequestration, the writ, the seizure, and the officer's return are all to be read and considered together as parts of one proceeding. ... They constitute the 'face of the record' in the sequestration proceedings."
TRCP 700 AMENDMENT
Clerical errors in the affidavit, bond, or writ of sequestration or the officer's return thereof may upon application in writing to the judge of the court in which the suit is filed and after notice to the opponent, be amended in such manner and on s |
