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 such terms as the judge shall authorize by an order entered in the minutes of the court, provided the amendment does not change or add to the grounds of such sequestration as stated in the affidavit, and provided such amendment appears to the judge to be in furtherance of justice.
TRCP 700a SERVICE OF WRIT ON DEFENDANT
The defendant shall be served in any manner provided for service of citation or as provided in Rule 21a, with a copy of the writ of sequestration, the application, accompanying affidavits, and orders of the court as soon as practicable following the levy of the writ. There shall also be prominently displayed on the face of the copy of the writ served on 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 claimed by you have been sequestered. 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 701 DEFENDANT MAY REPLEVY
At any time before judgment, should the sequestered property not have been previously claimed, replevied, 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, conditioned as provided in Rule 702 or Rule 703.
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.
Commercial Sec. Co. v. Thompson, 239 S.W.2d 911,914 (Tex.App- Fort Worth 1951, no writ). "[T]he purpose of a replevy bond is to insure that the property will be forthcoming after judgment in the same condition as when replevied."
TRCP 702 BOND FOR PERSONAL PROPERTY
If the property to be replevied be personal property, the condition of the bond shall be that the defendant will not remove the same out of the county, or that he will not waste, ill-treat, injure, destroy, or dispose of the same, according to the plaintiffs affidavit, and that he will have such property, in the same condition as when it is replevied, together with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof, or the difference between its value at the time of replevy and the time of judgment and of the fruits, hire or revenue of the same in case he shall be condemned to do so.
Associates Inc. Co. v. Soltes, 250 S.W.2d 593,595 (Tex.App- Dallas 1952, writ refd n.r.e.). " [T]he wording of [TRCP] 702 that defendant 'will have such property, in the same condition as when it is replevied,' excludes any ordinary depreciation in market value; and the further language that he 'will pay... the difference between its value at the time of replevy and the time of judgment,' has reference to damages occasioned by other than ordinary use."
TRCP 703 BOND FOR REAL ESTATE
If the properly be real estate, the condition of such bond shall be that the defendant will not injure the property, and that he will pay the value of the rents of the same in case he shall be condemned so to do.
TRCP 704 RETURN OF BOND and ENTRY OF JUDGMENT
The bond provided for in the three preceding rules shall be returned with the writ to the court from whence the writ issued. In case the suit is decided against the defendant, final judgment shall be rendered against all the obligors in such bond, jointly and severally, for the value of the property replevied as of the date of the execution of the replevy bond, and the value of the fruits, hire, revenue, or rent thereof, as the case may be.
Transit Enter., Inc. v. Addicks Tire & Auto Sup., Inc., 725 S.W.2d 459, 463 (Tex.App- Houston [1st Dist.] 1987, no writ). The "cost of replacement is not evidence of the value of the fruits, hire, revenue, or rent of the property replevied, as required by (TRCP] 704."
TRCP 705 DEFENDANT MAY RETURN SEQUESTERED PROPERTY
Within ten days after final judgment for personal property the defendant may deliver to the plaintiff, or to the officer who levied the sequestration or to his successor in office the personal property in question, and such officer shall deliver same to plaintiff upon his demand therefor; or such defendant shall deliver such property to the officer demanding same under execution issued therefor upon a judgment for the title or possession of the same; and such officer shall receipt the defendant for such property; provided, however, that such delivery to the plaintiff or to such officer shall be without prejudice to any rights of the plaintiff under the replevy bond given by the defendant. Where a mortgage or other lien of any kind is foreclosed upon personal property sequestered and replevied, the defendant shall deliver such property to the officer calling for same under order of sale issued upon a judgment foreclosing such mortgage or other lien, either in the county of defendant's residence or in the county where sequestered, as demanded by such officer; provided, however, that such delivery by the defendant shall be without prejudice to any rights of the plaintiff under the replevy bond given by the defendant.
Shapiro v. Sampson Bros. & Cooper, Inc., 334 S.W.2d 200, 203 (Tex.App- Eastland 1960, no writ). "The purpose of the finding of value at the time of the trial was to provide a basis for a credit on the judgment in the event the property was surrendered by the defendant in accordance with [TRCP] 705...."
TRCP 706 DISPOSITION OF THE PROPERTY BY OFFICER
When the property is tendered back by the defendant to the officer who sequestered the same or to the officer calling for same under an order of sale, such officer shall receive said property and hold or dispose of the same as ordered by the court; provided, however, that such return to and receipt of same by the officer and any sale or disposition of said property by the officer under order or judgment of the court shall not affect or limit any rights of the plaintiff under the bond provided for in Rule 702.
TRCP 707 EXECUTION
If the property be not returned and received, as provided in the two preceding rules, execution shall issue upon said judgment for the amount due thereon, as in other cases.
TRCP 708 PLAINTIFF MAY REPLEVY
When the defendant fails to replevy the property within ten days after the levy of the writ and service of notice on defendant, the officer having the property in possession shall at any time thereafter and before final judgment, deliver the same to the plaintiff upon his giving bond payable to defendant in a sum of money not less than the amount fixed by the court's order, with sufficient surety or sureties as provided by statute to be approved by such officer. If the property to be replevied be personal property, the condition of the bond shall be that he will have such property, in the same condition as when it is replevied, together with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof, or the difference between its value at the time of replevy and the time of judgment (regardless of the cause of such difference in value, and of the fruits, hire or revenue of the same in case he shall be condemned to do so). If the property be real estate, the condition of such bond shall be that the plaintiff will not injure the property, and that he will pay the value of the rents of the same in case he shall be condemned to do so.
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 maybe 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.
Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex.l965). "[T] he sequestration bond required 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 and costs in case it is decided that the sequestration was wrongfully issued. The replevy bond guarantees that the replevisor will have the property in the same condition to abide the decision of the court."
TRCP 709 WHEN BOND FORFEITED
The bond provided for in the preceding rule shall be returned by the officer to the court issuing the writ immediately after he has approved same, and in case the suit is decided against the plaintiff, final judgment shall be entered against all the obligors in such bond, jointly and severally for the value of the property replevied as of the date of the execution of the replevy bond, and the value of the fruits, hire, revenue or rent thereof as the case may be. The same rules which govern the discharge or enforcement of a judgment against the obligors in the defendant's replevy bond shall be applicable to and govern in case of a judgment against the obligors in the plaintiffs replevy bond.
Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex.l965). "A plaintiff availing himself of the replevin proceeding, and those obligating themselves on the replevy bond guaranteeing the performance of its terms by the plaintiff, are bound to the conditions imposed by the rules governing the procedure."
TRCP 710 SALE OF PERISHABLE GOODS
If after the expiration of ten days from the levy of a writ of sequestration the defendant has failed to replevy the same, if the plaintiff or defendant shall make affidavit in writing that the property levied upon, or any portion thereof, is likely to be wasted or destroyed or greatly depreciated in value by keeping, and if the officer having possession of such property shall certify to the truth of such affidavit, it shall be the duty of the judge or justice of the peace to whose court the writ is returnable, upon the presentation of such affidavit and certificate, either in term time or vacation, to order the sale of said property or so much thereof as is likely to be so wasted, destroyed or depreciated in value by keeping, but either party may replevy the property at any time before such sale.
TRCP 711 ORDER OF SALE FOR
The judge or justice granting the order provided for in the preceding rule shall issue an order directed to the officer having such property in possession, commending such officer to sell such property in the same manner as under execution.
TRCP 712 RETURN OF ORDER
The officer making such sale shall, within five days thereafter, return the order of sale to the court from whence the same issued, with his proceedings thereon, and shall, at the time of making such return, pay over to the clerk or justice of the peace the proceeds of such sale.
TRCP 712a DISSOLUTION OR MODIFICATION OF WRIT OF SEQUESTRATION
A defendant whose property has been sequestered or any intervening party who claims an interest in such property, may by sworn written motion, seek to vacate, dissolve, or modily the writ and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic, including a motion to reduce the amount of property sequestered when the total amount described and authorized by such order exceeds the amount necessary to secure the plaintiffs claim, one year's interest if allowed by law on the claim, and costs. 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 sequestered exceeds the amount necessary to secure the debt, interest for one year, and probable costs.
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.
B&W Cattle Co. v. First Nat'1 Bank, 692 S.W.2d 946, 949 (Tex.App.-Amarillo 1985, no writ). "When the partners of B&W Cattle Company moved for the dissolution or modification of the writ of sequestration, the court, in making its determination of the motions, was authorized to 'make all such orders, including orders concerning the case, preservation or disposition of the property (or the proceeds therefrom if the same has been sold) as justice may require...."'
Monroe v. GMAC, 573 S.W.2d 591,594 (Tex.App-Waco 1978, no writ). "Attorney's fees and damages against the plaintiff are authorized only if the writ is dissolved."
TRCP 713 SALE ON DEBT NOT DUE
If the suit in which the sequestration issued be for a debt or demand not yet due, and the property sequestered be likely to be wasted, destroyed or greatly depreciated in value by keeping, the judge or justice of the peace shall, under the regulations hereinbefore provided, order the same to be sold, giving credit on such sale until such debt or demand shall become due.
TRCP 714 PURCHASER'S BOND
In the case of a sale as provided for in the preceding rule, the purchaser of the property shall execute his bond, with two or more good and sufficient sureties, to be approved by the officer making the sale, and payable to such officer, in a sum not less than double the amount of the purchase money, conditioned that such purchaser shall pay such purchase money at the expiration of the time given.
TRCP 715 RETURN OF BOND
The bond provided for in the preceding rule shall be returned by the officer taking the same to the clerk or justice of the peace from whose court the order of sale issued, with such order, and shall be Filed among the papers in the cause.
TRCP 716 RECOVERY ON BOND
In case the purchaser does not pay the purchase money at the expiration of the time given, judgment shall be rendered against all the obligors in such bond for the amount of such purchase money, interest thereon and all costs incurred in the enforcement and collection of the same; and execution shall issue thereon in the name of the plaintiff in the suit, as in other cases, and the money when collected shall be paid to the clerk or justice of the peace to abide the final decision of the cause.
Section 9 Trial of Right of Property
TRCP 717 CLAIMANT MUST MAKE AFFIDAVIT
Whenever a distress warrant, writ of execution, sequestration, attachment, or other like writ is levied upon personal property, and such property, or any part thereof, shall be claimed by any claimant who is not a party to such writ, such claimant may make application that such claim is made in good faith, and file such application with the court in which such suit is pending. Such application may be supported by affidavits of the claimant, 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 such claim and the specific facts relied upon by the claimant to warrant the required Findings by the court.
The claim 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 property shall be delivered to the claimant except on written order of the court after a hearing pursuant to Rule 718. 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 amount of the bond required of the claimant.
Union Bank & Trust Co. v. Mireles, 697 S.W.2d 745, 747 (Tex.App- Corpus Christi 1985, no writ). "The Trial of Right of Property is a statutory remedy made available to a third party claimant when personal property has been levied upon, and when the claimant is not a party to the writ under which the levy is made. ... It is intended to provide a means of giving a claimant a 'summary method of asserting his title or right of possession, without resort to an ordinary suit for a recovery of the property or its value."'
TRCP 718 PROPERTY DELIVERED TO CLAIMANT
Any claimant who claims an interest in property on which a writ has been levied may, by sworn written motion, seek to obtain possession of such property. Such motion shall admit or deny each finding of the order directing the issuance of the writ except where the claimant is unable to admit or deny the finding, in which case claimant shall set forth the reasons why he cannot admit or deny. Such motion shall also contain the reasons why the claimant has superior right or title to the property claimed as against the plaintiff in the writ. 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 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 claimant shall have the burden to show superior right or title to the property claimed as against the plaintiff and defendant in 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, 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, 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.
Union Bank & Trust Co. v. Mireles, 697 S.W.2d 745, 747 (Tex. App- Corpus Christi 1985, no writ). "The person claiming an interest in the property on which the writ has been levied is titled the 'claimant.'"
TRCP 719 BOND
No property shall be put in the custody of the claimant until the claimant has filed with the officer who made the levy, a bond in an amount Fixed by the court's order equal to double the value of the property so claimed, payable to the plaintiff in the writ, with sufficient surety or sureties as provided by statute to be approved by such officer, conditioned that the claimant will return the same to the officer making the levy, or his successor, in as good condition as he received it, and shall also pay the reasonable value of the use, hire, increase and fruits thereof from the date of said bond, or, in case he fails so to return said property and pay for the use of the same, that he shall pay the plaintiff the value of said property, with legal interest thereon from the date of the bond, and shall also pay all damages and costs that may be awarded against him for wrongfully suing out such claim.
The plaintiff or claimant 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 720 RETURN OF BOND
Whenever any person shall claim property and shall duly make the application and give the bond, if the writ under which the levy was made was issued by a justice of the peace or a court of the county where such levy was made, the officer receiving such application and bond shall endorse on the writ that such claim has been made and application and bond given, and by whom; and shall also endorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond with a copy of the writ to the proper court having jurisdiction to try such claim.
Sandier v. Bufkor, Inc., 658 S.W.2d 289,292 (Tex. App.-Houston [1st Dist.] 1983, no writ). "Having waived the right to establish that the property was of lesser value than that estimated by the officer fixing the amount of the bond, appellants became bound by the recitals of the assessed value appearing on the face of the bond they signed."
TRCP 721 OUT-COUNTY LEVY
Whenever any person shall claim properly and shall make the application and give the bond as provided for herein, if the writ under which such levy was made was issued by a justice of the peace or a court of another county than that in which such levy was made, then the officer receiving such bond shall endorse on such bond the value of the property as assessed by himself, and shall forthwith return such bond with a copy of the writ, to the proper court having jurisdiction to try such claim.
TRCP 722 RETURN OF ORIGINAL WRIT
The officer taking such bond shall also endorse on the original writ, if in his possession, that such claim has been made and application and bond given, staling by whom, the names of the surety or sureties, and to what justice or court the bond has been returned; and he shall forthwith return such original writ to the tribunal from which it issued.
TRCP 723 DOCKETING CAUSE
Whenever any bond for the trial of the right of property shall be returned, the clerk of the court, or such justice of the peace, shall docket the same in the original writ proceeding in the name of the plaintiff in the writ as the plaintiff, and the claimant of the property as intervening claimant.
TRCP 724 ISSUE MADE UP
After the claim proceedings have been docketed, and on the hearing day set by the court, then the court, or the justice of the peace, as the case may be, shall enter an order directing the making and joinder of issues by the parties. Such issues shall be in writing and signed by each party or his attorney. The plaintiff shall make a brief statement of the authority and right by which he seeks to subject the property levied on to the process, and it shall be sufficient for the claimant and other parties to make brief statements of the nature of their claims thereto.
TRCP 725 JUDGMENT BY DEFAULT
If the plaintiff appears and the claimant fails to appear or neglects or refuses to join issue under the direction of the court or justice within the time pre scribed for pleading, the plaintiff shall have judgment by default.
TRCP 726 JUDGMENT OF NON-SUIT
If the plaintiff does not appear, he shall be non-suited.
Union Bank & Trust Co. v. Mireles, 697 S.W.2d 745, 747 (Tex.App- Corpus Christi 1985, no writ). "When [the plaintiff is non suited after failing to appear,] the claimant has possession of the property and this specialized proceeding is ended."
TRCP 727 PROCEEDINGS
The proceedings and practice on the trial shall be as nearly as may be the same as in other cases before such court or justice.
TRCP 728 BURDEN OF PROOF
If the property was taken from the possession of the claimant pursuant to the original writ, the burden of proof shall be on the plaintiff in the writ. If it was taken from the possession of the defendant in such writ, or any other person than the claimant, the burden of proof shall be on the claimant.
Peterson Sales Co. v. Mica, Inc., 623 S.W.2d 679, 681-82 (Tex.App- Houston [1st Dist.] 1981, no writ). TRCP 730 "establishes the burden of proof in the trial of the right of property.... The property at the time of the levying was in the possession of ... a defendant and debtor. [The claimant], therefore, had the burden of proof of showing its ownership of the property."
TRCP 729 COPY OF WRIT EVIDENCE
In all trials of the right of property, under the provisions of this section in any county other than that in which the writ issued under which the levy was made, the copy of the writ herein required to be returned by the officer making the levy shall be received in evidence in like manner as the original could be.
TRCP 730 FAILURE TO ESTABLISH TITLE
Where any claimant has obtained possession of property, and shall ultimately fail to establish his right thereto, judgment may be rendered against him and his sureties for the value of the property, with legal interest thereon from the date of such bond. Such judgment shall be rendered in favor of the plaintiff or defendant in the writ, or of the several plaintiffs or defendants, if more than one, and shall Fix the amount of the claim of each.
Sandier v. Bafkor, Inc., 658 S.W.2d 289,292 (Tex. App.-Houston [IstDist] 1983, no writ). "Once [the claimant] failed to establish its right to the property protected by the bond, [the plaintiffs] were entitled to judgment against [the makers of the bond] and their
surely for the value of the property."
TRCP 731 EXECUTION SHALL ISSUE
If such judgment should not be satisfied by a return of the property, then after the expiration of ten days from the date of the judgment, execution shall issue thereon in the name of the plaintiff or defendant for the amount of the claim, or of all the plaintiffs or defendants for the sum of their several claims, provided the amount of such judgment shall inure to the benefit of any person who shall show superior right or title to the property claimed as against the claimant; but if such judgment be for a less amount than the sum of the several plaintiffs' or defendants' claims, then the respective rights and priorities of the several plaintiffs or defendants shall be Fixed and adjusted in the judgment.
Graham v. Thomas D. Murphy Co., 497 S.W.2d 639, 641 (Tex.App.--Amarillo 1973, writ ref'd n.r.e.). "The statutory provision in [TRCP] 627 in reference to executions on ordinary judgments, whereby 20 days must expire from date of entry of judgment before execution may issue, is inapplicable in right of property suits in view of the special provision in [TRCP] 733."
TRCP 732 RETURN OF PROPERTY BY CLAIMANT
If, within ten days from the rendition of said judgment, the claimant shall return such property in as good condition as he received it, and pay for the use of the same together with the damages and costs, such delivery and payment shall operate as a satisfaction of such judgment.
Sandier v. Bufkor, Inc., 658 S.W.2d 289,292 (Tex. App.-Houston (1st Dist.] 1983, no writ). "Although return of the property 'in as good condition as he received if operates as a satisfaction of the judgment, partial tender and an offer to pay for missing property does not constitute such satisfaction. At 293: This is especially so where a 'substantial part' of the goods are missing."
TRCP 733 CLAIM IS A RELEASE OF DAMAGES
A claim made to the property, under the provisions of this section, shall operate as a release of all damages by the claimant against the officer who levied upon said property.
TRCP 734 LEVY ON OTHER PROPERTY
Proceedings for the trial of right of property under these rules shall in no case prevent the plaintiff in the writ from having a levy made upon any other property of the defendant.
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PART VII RULES RELATING TO SPECIAL PROCEEDINGS
Section 1 Procedures Related to Home Equity Loan Foreclosure
TRCP 735 PROCEDURES
A party seeking to foreclose a lien created under TEX. CONST. art. XVI, Section 50(a)(6) may File: (1) a suit seeking judicial foreclosure; (2) a suit or counterclaim seeking a final judgment which includes an order allowing foreclosure under the security instrument and TEX. PROP. CODE Section 51.002; or (3) an application under Rule 736 for an order allowing foreclosure.
TRCP 736 EXPEDITED FORECLOSURE PROCEEDING
1. Application. A party filing an application under Rule 736 seeking a court order allowing the foreclosure of a lien under TEX. CONST. art. XVI, Section 50(a)(6)(D) shall initiate such in rem proceeding by filing a verified application in the district court in any county where all or any part of the real property encumbered by the lien sought to be foreclosed (the "property") is located. The application shall:
(A) be styled: "In re: Order for Foreclosure Concerning (Name of person to receive notice of foreclosure) and (Property Mailing Address)"',
(B) identify by name the party who, according to the records of the holder of the debt, is obligated to pay the debt secured by the property,
(C) identify the property by mailing address and legal description;
(D) identify the security instrument encumbering the property by reference to volume and page, clerk's file number or other identifying recording information found in the official real property records of the county where all or any part of the property is located or attach a legible copy of the security instrument;
(E) allege that:
(1) a debt exists;
(2) the debt is secured by a lien created under TEX. CONST. art. XVI, Section 50(a)(6) that encumbers the property;
(3) a default under the security instrument exists;
(4) the applicant has given the requisite notices to cure the default and accelerate the maturity of the debt under the security instrument, TEX. PROP. CODE Section 51.002, and applicable law;
(F) describe facts which establish the existence of a default under the security instrument; and
(G) state that the applicant seeks a court order required by TEX. CONST. art. XVI, Section 50(a)(6)(D) to sell the property under the security instrument and TEX. PROP. CODE Section 51.002.
The verified application and any supporting affidavit 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.
2. Notice.
(A) Service. Every application filed with the clerk of the court shall be served by the party filing the application. Service of the application and notice shall be by delivery of a copy to the party to be served by certified and first class mail addressed to each party who, according to the records of the holder of the debt, is obligated to pay the debt. Service shall be complete upon the deposit of the application and notice, enclosed in a postage prepaid and properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. If the respondent is represented by an attorney and the applicant's attorney has knowledge of the name and address of the attorney, an additional copy of the application and notice shall be sent to respondent's attorney.
(B) Certificate of Service. The applicant or applicant's attorney shall certify to the court compliance with the service requirements of Rule 736. The applicant shall file a copy of the notice and the certificate of service with the clerk of the court. The certificate of service shall be prima facie evidence of the fact of service.
(C) Form of Notice. The notice shall be sufficient if it is in substantially the following form in at least ten point type:
Cause No. ___________
In re: Order for Foreclosure In the District Court Concerning (1) Of_________ County
And (2) Judicial District NOTICE TO: (3)
An application has been Filed by_______, as Applicant, on (4)_____, in a proceeding described as: "In re: Order for Foreclosure Concerning (1) and (2)
The attached application alleges that you, the Respondent, are in default under a security instrument creating a lien on your homestead under TEX. CONST. art. XVI, Section 50(a)(6). This application is now pending in this court.
Applicant seeks a court order, as required by TEX. CONST. art. XVI, Section 50(a)(6)(D), to allow it to sell at public auction the property described in the attached application under the security instrument and TEX. PROP. CODE Section 51.002.
You may employ an attorney. If you or your attorney do not file a written response with the clerk of the court at ______(5)______ on or before 10:00 a.m. on (6) an order authorizing a foreclosure sale may be signed. If the court grants the application, the foreclosure sale will be conducted under the security instrument and TEX. PROP. CODE Section 51.002. You may file a response setting out as many matters, whether of law or fact, as you consider may be necessary and pertinent to contest the application. If a response is filed, the court will hold a hearing at the request of the applicant or respondent.
In your response to this application, you must provide your mailing address. In addition, you must send a copy of your response to (7) ISSUED By____________________ (Applicant or Applicant's Attorney) CERTIFICATE OF SERVICE
I certify that a true and correct copy of this notice with a copy of the application was sent certified and regular mail to _______[3)_______ on the ___ day of _______________, 19___. __________(signature)________
(Applicant or Attorney for Applicant)
( 1 ) name of respondent
(2) mailing address of property
(3) name and address of respondent
(4) date application filed
(5) address of clerk of court
(6) response due date
(7) name and address of applicant or applicant's
(D) The applicant shall state in the notice the date the response is due in accordance with Rule 736(3).
(E) The application and notice may be accompanied by any other notice required by state or federal law.
3. Response Due Date. A response is due on or before 10:00 a.m. on the first Monday after the expiration of thirty-eight (38) days after the date of mailing of the application and notice to respondent, exclusive of the date of mailing, as set forth in the certificate of service.
4. Response.
(A) The respondent may file a response setting out as many matters, whether of law or fact, as respondent deems necessary or pertinent to contest the application. Such response and any supporting affidavit 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.
(B) The response shall state the respondent's mailing address.
(C) The response shall be Filed with the clerk of the court. The respondent shall also send a copy of the response to the applicant or the applicant's attorney at the address set out in the notice.
5. Default. At any time after a response is due, the court shall grant the application without further notice or hearing if:
(A) the application complies with Rule 736(1);
(B) the respondent has not previously filed a response; and
(C) a copy of the notice and the certificate of service shall have been on file with the clerk of the court for at least ten days exclusive of the date of filing.
6. Hearing When Response Filed. On the filing of a response, the application shall be promptly heard after reasonable notice to the applicant and the respondent. No discovery of any kind shall be permitted in a proceeding under Rule 736. Unless the parties agree to an extension of time, the issue shall be determined by the court not later than ten business days after a request for hearing by either party. At the hearing, the applicant shall have the burden to prove by affidavits on file or evidence presented the grounds for the
granting of the order sought in the application.
7. Only Issue.
(A) The only issue to be determined under Rule 736 shall be the right of the applicant to obtain an order to proceed with foreclosure under the security instrument and TEX. PROP. CODE Section 51.002. No order or determination of fact or law under Rule 736 shall be res judicata or constitute collateral estoppel or estoppel by judgment in any other proceeding or suit.
(B) The granting of an application under these rules shall be without prejudice to the right of the respondent to seek relief at law or in equity in any court of competent jurisdiction. The denial of an application under these rules shall be without prejudice to the right of the applicant to re-File the application or seek other relief at law or in equity in any court of competent jurisdiction.
8. Order to Proceed with Notice of Sale and Sale.
(A) Grant or denial. The court shall grant the application if the court Finds applicant has proved the elements of Rule 736(1 )(E). Otherwise, the court shall deny the application. The granting or denial of the application is not an appealable order.
(B) Form of order. The order shall recite the mailing address and legal description of the property, direct that foreclosure proceed under the security instrument and TEX. PROP. CODE Section 51.002, provide that a copy of the order shall be sent to respondent with the notice of sale, provide that applicant may communicate with the respondent and all third parties reasonably necessary to conduct the foreclosure sale, and, if respondent is represented by counsel, direct that notice of the foreclosure sale date shall also be mailed to counsel by certified mail.
(C) Filing of order. The applicant is to file a certified copy of the order in the real property records of the county where the property is located within ten business days of the entry of the order. Failure to timely record the order shall not affect the validity of the foreclosure or defeat the presumption of TEX. CONST. art. XVI, Section 50(i).
9. Abatement and Dismissal. A proceeding under Rule 736 is automatically abated if, before the signing of the order, notice is filed with the clerk of the court in which the application is pending that respondent has filed a petition contesting the right to foreclose in a district court in the county where the application is pending. A proceeding that has been abated shall be dismissed.
Section 2 Bill of Discovery
TRCP 737 REPEALED
Section 3 Forcible Entry and Detainer
TRCP 738 MAY SUE FOR RENT
A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
Haginas v. Malbis Memorial Found., 354 S.W.2d 368,371 (Tex. l962). TRCP 738 "permits the plaintiff to join with his action of forcible entry and detainer, a suit for rent, but the rule specifically limits the amount of rent which may be recovered in the Justice Court to the jurisdictional limit placed on the Justice Court by [Tex. Const. art. 5, Section 16]."
Carlson's Hill Country Beverage v. Westinghouse Rd. Jt.V" 957 S.W.2d 951, 954 (Tex App.--Aus- tin 1997, no pet). "A justice court in the precinct in which the real property is located has jurisdiction of a detainer action, the subject of which is limited to actual possession. However, a claimant may properly join a suit for unpaid rent provided the amount does not exceed the jurisdictional limits of the justice court."
Anarkali Enter., Inc. v. Riverside Drive Enter.,Inc., 802 S.W.2d 25,26 (Tex.App- Fort Worth 1990, no writ). "The purpose of a forcible detainer action is to resolve who has the right to immediate possession of the premises. ... It is cumulative of other remedies,
rather than exclusive."
TRCP 739 CITATION
When the party aggrieved or his authorized agent shall File his written sworn complaint with such justice, the justice shall immediately issue citation directed to the defendant or defendants commanding him to appear before such justice at a time and place named in such citation, such time being not more than ten days nor less than six days from the date of service of the citation.
The citation shall inform the parties that, upon timely request and payment of a jury fee no later than five days after the defendant is served with citation, the case shall be heard by a jury.
TRCP 740 COMPLAINANT MAY HAVE POSSESSION
The party aggrieved may, at the time of filing his complaint, or thereafter prior to Final judgment in the justice court, execute and file a possession bond to be approved by the justice in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to defendant in the event that the suit has been improperly instituted, and conditioned that the plaintiff will pay defendant all such costs and damages as shall be adjudged against plaintiff. The defendant shall be notified by the justice court
that plaintiff has filed a possession bond. Such notice shall be served in the same manner as service of citation and shall inform the defendant of all of the following rules and procedures:
(a) Defendant may remain in possession if defendant executes and files a counter bond prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiffs bond. Said counter bond shall be approved by the justice and shall be in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to plaintiff in the event possession has been improperly withheld by defendant;
(b) Defendant is entitled to demand and he shall be granted a trial to be held prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiffs possession bond;
(c) If defendant does not file a counter bond and if defendant does not demand that trial be held prior to the expiration of said six-day period, the constable of the precinct or the sheriff of the county where the property is situated, shall place the plaintiff in possession of the property promptly after the expiration of six days from the date defendant is served with notice of the filing of plaintiffs possession bond; and
(d) If, in lieu of a counter bond, defendant demands trial within said six-day period, and if the justice of the peace rules after trial that plaintiff is entitled to possession of the properly, the constable or sheriff shall place the plaintiff in possession of the property Five days after such determination by the justice of the peace.
TRCP 741 REQUISITES OF COMPLAINT
The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001-24.004, Texas Property Code.
Family Inv. Co. v. Paley, 356 S.W.2d 353, 355-56 (Tex-App.-Houston [1st Dist.] 1962, writ dism'd). "An insufficient description in the complaint in forcible entry and detainer is not such a defect as to deprive the court of jurisdiction. ... The complaint can be amended in the Justice of the Peace Court."
TRCP 742 SERVICE OF CITATION
The officer receiving such citation shall execute the same by delivering a copy of it to the defendant, or by leaving a copy thereof with some person over the age of sixteen years, at his usual place of abode, at least six days before the return day thereof; and on or before the day assigned for trial he shall return such citation, with his action written thereon, to the justice who issued the same.
American Spiritualist Ass'n v. Ravkind, 313 S.W.2d 121, 124 (Tex.App-Dallas 1958, writ reef's n.r.e.). "[T]he Justice Court judgment was fatally defective because of a lack of proper service of citation."
TRCP 742a SERVICE BY DELIVERY TO PREMISES
If the sworn complaint lists all home and work addresses of the defendant which are known to the person filing the sworn complaint and if it states that such person knows of no other home or work addresses of the defendant in the county where the premises are located, service of citation may be by delivery to the premises in question as follows:
If the officer receiving such citation is unsuccessful in serving such citation under Rule 742, the officer shall no later than five days after receiving such citation execute a sworn statement that the officer has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located as may be shown on the sworn complaint, staling the times and places of attempted service. Such sworn statement shall be filed by the officer with the justice who shall promptly consider the sworn statement of the officer. The justice may then authorize service according to the following:
(a) The officer shall place the citation inside the premises by placing it through a door mail chute or by slipping it under the front door; and if neither method is possible or practical, the officer shall securely affix the citation to the front door or main entry to the premises.
(b) The officer shall that same day or the next day deposit in the mail a true copy of such citation with a copy of the sworn complaint attached thereto, addressed to defendant at the premises in question and sent by first class mail;
(c) The officer shall note on the return of such citation the date of delivery under (a) above and the date of mailing under (b) above; and
(d) Such delivery and mailing to the premises shall occur at least six days before the return day of the citation; and on or before the day assigned for trial he shall return such citation with his action written thereon, to the justice who issued the same.
It shall not be necessary for the aggrieved party or his authorized agent to make request for or motion for alternative service pursuant to this rule.
Winrock Houston Assoc. v. Bergstrom, 879 S.W.2d 144,151 (Tex.App-Houston (14th Dist.] 1994, no writ). "IT] he Officer's Sworn Request for Alternative Service under (TRCP] 742a ... does not state that he ever attempted to serve appellee at his work address as shown on the sworn complaint and as required by Rule 742(a). Therefore, the requirements of Rule 742 (a) for substituted service by delivery to the premises were not strictly complied with, and appellee was not properly served with citation."
TRCP 743 DOCKETED
The cause shall be docketed and tried as other cases. If the defendant shall fail to enter an appearance upon the docket in the justice court or File answer before the case is called for trial, the allegations of the complaint may be taken as admitted and judgment by default entered accordingly. The justice shall have authority to issue subpoenas for witnesses to enforce their attendance, and to punish for contempt.
TRCP 744 DEMANDING JURY
Any party shall have the right of trial by jury, by making a request to the court on or before five days from the date the defendant is served with citation, and by paying the jury fee of Five dollars. Upon such request, a jury shall be summoned as in other cases in justice court.
TRCP 745 TRIAL POSTPONED
For good cause shown, supported by affidavit of either party, the trial may be postponed not exceeding six days.
TRCP 746 ONLY ISSUE
In case of forcible entry or of forcible detainer under Sections 24.001-24.008, Texas Property Code, the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.
Fandey v. Lee, 880 S.W.2d 164, 168-69 (Tex.App- El Paso 1994, writ denied). "The principal purpose of a ... forcible entry and detainer action, is to determine who has the right to immediate possession of the premises.... Where title to the property is directly involved in the suit, the justice and county courts lack jurisdiction."
Martinez v. Daccarett, 865 S.W.2d 161, 163 (Tex. App.-Corpus Christi 1993, no writ). "The justice court ... cannot adjudicate title to the land. ... The court merely resolves who is entitled to immediate possession. [ If ] This forcible detainer action allowed by law is not exclusive, but cumulative of any other remedy that a party may have in the courts of this state."
TRCP 747 TRIAL
If no jury is demanded by either party, the justice shall try the case. If a jury is demanded by either party, the jury shall be empaneled and sworn as in other cases; and after hearing the evidence it shall return its verdict in favor of the plaintiff or the defendant as it shall Find.
TRCP 747a REPRESENTATION BY AGENTS
In forcible entry and detainer cases for non-payment of rent or holding over beyond the rental term, the parties may represent themselves or be represented by their authorized agents in justice court.
TRCP 748 JUDGMENT and WRIT
If the judgment or verdict be in favor of the plaintiff, the justice shall give judgment for plaintiff for possession of the premises, costs, and damages; and he shall award his writ of possession. If the judgment or verdict be in favor of the defendant, the justice shall give judgment for defendant against the plaintiff for costs and any damages. No writ of possession shall issue until the expiration of five days from the time the judgment is signed.
Housing Auth. v. Sanders, 693 S.W.2d 2,2-3 (Tex. App.-Tyier 1985, writ refd n.r.e.). "A justice court judgment is a prerequisite to an appeal to the county court."
TRCP 749 MAY APPEAL
In appeals in forcible entry and detainer cases, no motion for new trial shall be filed. Either party may appeal from a final judgment in such case, to the county court of the county in which the judgment is rendered by filing with the justice within five days after the judgment is signed, a bond to be approved by said justice, and payable to the adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs and damages which may be adjudged against him. The justice shall set the amount of the bond to include the items enumerated in Rule 752. Within five days following the filing of such bond, the party appealing shall give notice as provided in Rule 21 a of the filing of such bond to the adverse party. No judgment shall be taken by default against the adverse party in the court to which the cause has been appealed without first showing substantial compliance with this rule.
RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex.l984). TRCP 749 "requires that the appeal bond be filed within 5 days from the date the judgment of the justice court is signed. No provision is made for delay in the event a motion for new trial is filed."
Mitchell v. Armstrong Capital Corp., 877 S.W.2d 480,481 (TexApp.-Houston [1st Dist.] 1994, no writ). TRCP 749 "does not provide that giving notice of the filing of an appeal bond is jurisdictional."
TRCP 749a PAUPERS AFFIDAVIT
If appellant is unable to pay the costs of appeal, or File a bond as required by Rule 749, he shall nevertheless be entitled to appeal by making strict proof of such inability within Five days after the judgment is signed, which shall consist of his affidavit Filed with the justice of the peace staling his inability to pay such costs, or any part thereof, or to give security, which may be contested within Five days after the Filing of such affidavit and notice thereof to the opposite party or his attorney of record by any officer of the court or party to the suit, whereupon it shall be the duty of the justice of the peace in whose court the suit is pending to hear evidence and determine the right of the party to appeal, and he shall enter his Finding on the docket as a part of the record. Upon the filing of a pauper's affidavit the justice of the peace or clerk of the court shall notice the opposing party of the Filing of the affidavit of inability within one working day of its Filing by written notification accomplished through first class mail. It will be presumed prima facie that the affidavit speaks the truth, and, unless contested within five days after the filing and notice thereof, the presumption shall be deemed conclusive; but if a contest is filed, the burden shall then be on the appellant to prove his alleged inability by competent evidence other than by the affidavit above referred to. When a pauper's affidavit is timely contested by the appellee, the justice shall hold a hearing and rule on the matter within five days.
If the justice of the peace disapproves the pauper's affidavit, appellant may, within five days thereafter bring the matter before the county judge for a Final decision, and, on request, the justice shall certify to the county judge appellant's affidavit, the contest thereof, and all documents, and papers thereto. The county judge shall set a day for hearing, not later than five days, and shall hear the contest de novo. If the pauper's affidavit is approved by the county judge, he shall direct the justice to transmit to the clerk of the county court, the transcript, records and papers of the case. A pauper's affidavit will be considered approved upon one of the following occurrences: (1) the pauper's affidavit is not contested by the other party; (2) the pauper's affidavit is contested by the other party and upon a hearing the justice determines that the pauper's affidavit is approved; or (3) upon a hearing by the justice disapproving of the pauper's affidavit the appellant appeals to the county judge who then, after a hearing, approves the pauper's affidavit. No writ of possession may issue pending the hearing by the county judge of the appellant's right to appeal on a pauper's affidavit. If the county judge disapproves the pauper's affidavit, appellant may perfect his appeal by filing an appeal bond in the amount as required by Rule 749 within Five days thereafter. If no appeal bond is filed within Five days, a writ of possession may issue.
Haghes v. Habitat Apts., 860 S.W.2d 872, 872-73 (Tex.l993). "Ms. Hughes, a pro se defendant, orally answered Habitat's allegations in a [FED] action in the justice court. Pursuant to her appeal in the county court, she Filed a pauper's affidavit but failed to file a written answer as required by [TRCP] 753. [If] [B]ecause the pauper's affidavit supplied the type of information we found adequate for a pro se answer in {Smith v. Lippmann, 826 S.W.2d 137 (Tex. 1992)], we hold that Ms. Hughes was entitled to notice of the hearing on Habitat's motion for default judgment."
Walker v. Blue Water Garden Apts., 776 S.W.2d 578,581 (Tex.l989). TRCP 749a "requires that an affidavit of inability to pay costs made to perfect an appeal from the judgment of the justice court be Filed within 5 days after the judgment is signed."
TRCP 749b PAUPERS AFFIDAVIT IN NONPAYMENT OF RENT APPEALS
In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal, by complying with the following procedure:
(1) Within five days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the justice court registry one rental period's rent under the terms of the rental agreement.
(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.
(3) If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by these rules, the appellee may File a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution.
(4) Landlord/appellee may withdraw any or all rent in the county court registry upon a) sworn motion and hearing, prior to final determination of the case, showing just cause, b) dismissal of the appeal, or c) order of the court upon final hearing.
(5) All hearings and motions under this rule shall be entitled to precedence in the county court.
lbarra v. Housing Auth., 791 S.W.2d 224,226 (Tex. App.-Corpus Christi 1990, writ denied). TRCP 749b(3) "does not provide for a hearing prior to a county court issuing a writ of restitution. The Due Process Clause requires only a single hearing before an impartial decision maker on the question of restitution. ... Appellant had such a hearing.... [If] [However] before Housing Authority could withdraw the ... rent from the court's registry, a hearing was required...."
TRCP 749C APPEAL PERFECTED
When an appeal bond has been timely Filed in conformity with Rule 749 or a pauper's affidavit approved in conformity with Rule 749a, the appeal shall be perfected.
Walker v. Blue Water Garden Apts., 776 S.W.2c 578, 581 (Tex.l989). "The rules prescribe no deadline for making the deposit of one month's rent required b) [TRCP] U9c.At582: We choose not to imply a specific deadline in these rules where none exists expressly Rather, we conclude that [the party's] reasonably prompt efforts [50 days after judgment] to meet the requirements of Rule 749c were sufficient to perfect her appeal."
TRCP 750 FORM OF APPEAL BOND
The appeal bond authorized in the preceding article may be substantially as follows:
"The State of Texas,
"County of______
"Whereas, upon a writ of forcible entry (or forcible detainer) in favor of A.B. and against C.D., tried before _______, a justice of the peace of______ county, a judgment was rendered in favor of the said A.B. on the __ day of _____, A.D. ____, and against the said C.D., from which the said C.D. has appealed to the county court; now, therefore, the said C.D. and ______ his sureties, covenant that he will prosecute his said appeal with effect and pay all costs and damages which may be adjudged against him, provided the sureties shall not be liable in an amount greater than $ _____, said amount being the amount of the bond herein.
"Given under our hands this ___ day of______, A.D. _______."
Pharis v. Culver, 677 S.W.2d 168, 170 (Tex.App- Houston [1st Dist.] 1984, no writ). "While the form (of the FED appeal bond in TRCP 750] is not mandatory, the bond must substantially comply with Rule 750."
Family Inc. Co. v. Paley, 356 S.W.2d 353, 355 (Tex.App.-Houston [1st Dist.] 1962, writ dism'd). The trial court should have permitted amendment of the appeal bond. "The defective bond was sufficient to confer jurisdiction over the appeal on the county court."
TRCP 751 TRANSCRIPT
When an appeal has been perfected, the justice shall stay all further proceedings on the judgment, and immediately make out a transcript of all the entries made on his docket of the proceedings had in the case; and he shall immediately file the same, together with the original papers and any money in the court registry, including sums tendered pursuant to Rule 749b(l), with the clerk of the county court of the county in which the trial was had, or other court having jurisdiction of such appeal. The clerk shall docket the cause, and the trial shall be de novo.
The clerk shall immediately notify both appellant and the adverse party of the date of receipt of the transcript and the docket number of the cause. Such notice shall advise the defendant of the necessity for filing a written answer in the county court when the defendant has pleaded orally in the justice court. The trial, as well as all hearings and motions, shall be entitled to precedence in the county court.
TRCP 752 DAMAGES
On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal. Damages may include but are not limited to loss of rentals during the pendency of the appeal and reasonable attorney fees in the justice and county courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the county court shall be entitled to recover damages against the adverse party. He shall also be entitled to recover court costs. He shall be entitled to recover against the sureties on the appeal bond in cases where the adverse party has executed such bond.
RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex.l984). TRCP 752 "defines damages in a forcible detainer suit to include reasonable attorney fees in the justice and county courts."
Krall v. Somoza, 879 S.W.2d 320,322 (Tex-App- Houston [14th Dist.] 1994, writ denied). "Damage claims related to maintaining or obtaining possession of the premises may be joined with the detainer action and litigated in the county court.... However, damages for other causes of action, (i.e., wrongful termination), are not recoverable in a forcible entry and detainer action."
Mastermark Homebuilders, Inc. v. Offenburger Constr., Inc., 857 S.W.2d 765,768 (Tex.App- Houston [HthDist.] 1993, no writ). TRCP 752 "does not require that damages in the form of attorney's fees be plead in the justice court. The rule merely states that the requirements of Section 24.006 of the Property Code be satisfied."
TRCP 753 JUDGMENT BY DEFAULT
Said cause shall be subject to trial at any time after the expiration of eight full days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, the same shall be taken to constitute his appearance and answer in the county court, and such answer may be amended as in other cases. If the defendant made no answer in writing in the justice court, and if he fails to file a written answer within eight full days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly.
Okpala v. Coleman, 964 S.W.2d 698, 700 (Tex. App.-Houston [14thDisL] 1998, no pet.). "An answer •.. must contain sufficient information to place in issue the claims made the basis of the suit. ( If ] [W] e hold the [D], while not filing a formal answer pursuant to [TRCP] 753, filed documents forming an answer sufficient to prevent the rendition of a default judgment."
TRCP 754 BLANK
TRCP 755 WRIT OF POSSESSION
The writ of possession, or execution, or both, shall be issued by the clerk of the county court according to the judgment rendered, and the same shall be executed by the sheriff or constable, as in other cases; and such writ of possession shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party.
Section 4 Partition of Real Estate
TRCP 756 PETITION
The plaintiffs petition shall state:
(a) The names and residence, if known, of each of the other joint owners, or joint claimants, of such property.
(b) The share or interest which the plaintiff and the other joint owners, or joint claimants, of same own or claim so far as known to the plaintiff.
(c) The land sought to be partitioned shall be so described as that the same may be distinguished from any other and the estimated value thereof stated.
Yoast v. Yoast, 649 S.W.2d 289, 292 (Tex.l983). "The court of appeals mischaracterized this case as a partition suit. Lovell's [suit was for] trespass to try title. ... Partition issues may be resolved in a trespass to try title suit once the controversy as to title or right to possession is settled. ... That, however, does not convert the cause of action to a partition suit. [ 11 ] A partition suit is based on the theory of common title, rather than disputed ownership."
TRCP 757 CITATION and SERVICE
Upon the filing of a petition for partition, the clerk shall issue citation for each of the joint owners, or joint claimants, named therein, as in other cases, and such citations shall be served in the manner and for the time provided for the service of citations in other cases.
Carper p. Halamicefc, 610 S.W.2d 556, 557 (Tex. App.-Tyier 1980, writ refd n.r.e.). "This rule and past cases indicate that the joinder of all owners is mandatory and that no valid, binding decree of partition can be made in their absence."
TRCP 758 WHERE DEPENDANT IS UNKNOWN OR RESIDENCE IS UNKNOWN
If the plaintiff, his agent or attorney, at the commencement of any suit, or during the progress thereof, for the partition of land, shall make affidavit that an undivided portion of the land described in plaintiffs petition in said suit is owned by some person unknown to affiant, or that the place of residence of any known party owning an interest in land sought to be partitioned is unknown to affiant, the Clerk of the Court shall issue citation for publication, conforming to the requirements of Rules 114 and 115, and served in accordance with the directions of Rule 116. In case of unknown residence or party, the affidavit shall include a statement that after due diligence plaintiff and the affiant have been unable to ascertain the name or locate the residence of such party, as the case may be, and in such case it shall be the duty of the court trying the action to inquire into the sufficiency of the diligence so stated before granting any judgment.
TRCP 759 JUDGMENT WHERE DEFENDANT CITED BY PUBLICATION
When the defendant has been duly cited by publication in accordance with the preceding rule, and no appearance is entered within the time prescribed for pleadings, the court shall appoint an attorney to defend in behalf of such owner or owners, and proceed as in other causes where service is made by publication. It shall be the special duty of the court in all cases to see that its decree protects the rights of the unknown parties thereto. The judge of the court shall fix the fee of the attorney so appointed, which shall be entered and collected as costs against said unknown owner or owners.
TRCP 760 COURT SHALL DETERMINE, WHAT
Upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.
Johnson v. Johnson-McHenry, 978 S.W.2d 142, 144 (Tex.App.-Austin 1998, no pet.)- "[l]n a partition suit, the trial court determines whether the partition will be by sale or in kind, the share or interest of the joint owners or claimants, and all questions of law or equity affecting title. The court then allocates to the parties their rightful shares or tracts. A trial court may also exercise equitable powers in a partition suit."
Thomas v. McNair, 882 S.W.2d 870, 876 (Tex. App.-Corpus Christi 1994, no writ). " In a partition suit two judgments are rendered. The First decree determines: the share or interest of each of the joint owners or claimants; all questions of law or equity affecting title; and appoints commissioners and gives them directions as may be necessary and appropriate. ... The rights and matters determined in the first decree are Final, and it is appealable as a Final judgment.' "
TRCP 761 APPOINTMENT OF COMMISSIONERS
The court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition; and, if the court determines that the whole, or any part of such property is susceptible of partition, then the court for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate, describing the same, to be made in accordance with the respective shares or interests of each of such parties entitled thereto, specify in such decree the share or interest of each party, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law, a majority of which commissioners may act.
Benson v. Fox, 589 S.W.2d 823, 826 (Tex.App- Tyier 1979, no writ). "The law makes it the duty of the court, before entering a decree of partition, to determine whether the property is susceptible of partition. It is evident that [TRCP] 761 employs the word 'partition' in a restricted sense as synonymous with the phrase 'partition in kind."'
TRCP 762 WRIT OF PARTITION
The clerk shall issue a writ of partition, directed to the sheriff or any constable of the county, commanding such sheriff or constable to notify each of the commissioners of their appointment as such, and shall accompany such writ with a certified copy of the decree of the court directing the partition.
TRCP 763 SERVICE OF WRIT OF PARTITION
The writ of partition shall be served by reading the same to each of the persons named therein as commissioners, and by delivering to any one of them the accompanying certified copy of the decree of the court.
TRCP 764 MAY APPOINT SURVEYOR
The court may, should it be deemed necessary, appoint a surveyor to assist the commissioners in making the partition, in which case the writ of partition shall name such surveyor, and shall be served upon him by reading the same to him.
TRCP 765 RETURN OF WRIT
A writ of partition, unless otherwise directed by the court, shall be made returnable twenty days from date of service on the commissioner last served; and the officer serving it shall endorse thereon the time and manner of such service.
TRCP 766 SHALL PROCEED TO PARTITION
The commissioners, or a majority of them, shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules.
Mansfield v. Davenport, 362 S.W.2d 912,913 (Tex. App.-San Antonio 1962, writ refd n.r.e.). "By its First order or judgment in a partition suit, a court may properly give such directions as may be necessary and appropriate."
TRCP 767 MAY CAUSE SURVEY
If the commissioners deem it necessary, they may cause to be surveyed the real estate to be partitioned into several tracts or parcels.
TRCP 768 SHALL DIVIDE REAL ESTATE
The commissioners shall divide the real estate to be partitioned into as many shares as there are persons entitled thereto, as determined by the court, each share to contain one or more tracts or parcels, as the commissioners may think proper, having due regard in the division to the situation, quantity and advantages of each share, so that the shares may be equal in value, as nearly as may be, in proportion to the respective interests of the parties entitled. The commissioners shall then proceed by lot to set apart to each of the parties entitled one of said shares, as determined by the decrees of the court.
Grimes v. Hall, 211 S.W.2d 956, 958 (Tex.App- Eastland 1948, no writ). "Where the interests of the parties in the realty to be partitioned are unequal, selection of owners of shares by lot is not required."
TRCP 769 REPORT OF COMMISSIONERS
When the commissioners have completed the partition, they shall report the same in writing and under oath to the court, which report shall show:
(a) The property divided, describing the same.
(b) The several tracts or parcels into which the same was divided by them, describing each particularly.
(c) The number of shares and the land which constitutes each share, and the estimated value of each share.
(d) The allotment of each share.
(e) The report shall be accompanied by such field notes and maps as may be necessary to make the same intelligible.
The clerk shall immediately mail written notice of the Filing of the report to all parties.
Thomas v. McNair, 882 S.W.2d 870, 876 (Tex. App.-Corpus Christi 1994, no writ). "'The second decree [in a partition suit] approves the report of the commissioners and allocates to the respective parties their separate shares or tracts."'
TRCP 770 PROPERTY INCAPABLE OF DIVISION
Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution or by private or public sale through a receiver, if the court so order, and the proceeds thereof shall be returned into court and be partitioned among the persons entitled thereto, according to their respective interests.
Thomas v. McNair, 882 S.W.2d 870, 876-77 (Tex. App.-Corpus Christi 1994, no writ). "Pursuant to [TRCP] 770, a trial court must order the sale of property incapable of partition and determine the respective interests or shares of the person entitled thereto.
After the sale, the court enters an order of disbursement dividing the proceeds of the sale among the persons entitled thereto, according to their respective interests."
TRCP 771 OBJECTIONS TO REPORT
Either party to the suit may file objections to any report of the commissioners in partition within thirty days of the date the report is Filed, and in such case a trial of the issues thereon shall be had as in other cases. If the report be found to be erroneous in any material respect, or unequal and unjust, the same shall be rejected, and other commissioners shall be appointed by the Court, and the same proceedings had as in the First instance.
Ellis v. First City Nat'l Bank, 864 S.W.2d 555,557 (Tex.App- Tyier 1993, no writ). "If the trial court finds the report of the commissioners is (erroneous or unequal] it must reject the report and appoint other commissioners.... The party objecting to the commissioners' report had the burden of proving that it is materially erroneous or that it unequally and unjustly partitions the property."
Section 5 Partition of Personal Property
TRCP 772 PROCEDURE
An action seeking partition of personal property as authorized by Section 23.001, Texas Property Code, shall be commenced in the same manner as other civil suits, and the several owners or claimants of such property shall be cited as in other cases.
TRCP 773 VALUE ASCERTAINED
The separate value of each article of such personal property, and the allotment in kind to which each owner is entitled, shall be ascertained by the court, with or without a jury.
Price v. Price, 394 S.W.2d 855, 858 (Tex.App- Tyier 1965, writ refd n.r.e.). "The fact that the property has now been transformed into personal property in the form of money would not alter the application rule, but would only make the property more susceptible to a partition in kind."
TRCP 774 DECREE OF COURT EXECUTED
When partition in kind of personal property is ordered by the judgment of the court, a writ shall be issued in accordance with such judgment, commanding the sheriff or constable of the county where the property may be to put the parties forthwith in possession of the property allotted to each respectively.
TRCP 775 PROPERTY SOLD
When personal property will not admit of a fair and equitable partition, the court shall ascertain the proportion to which each owner thereof is entitled, and order the property to be sold, and execution shall be issued to the sheriff or any constable of the county where the property may be describing such property and commanding such officer to sell the same as in other cases of execution, and pay over the proceeds of sale to the parties entitled thereto, in the proportion ascertained by the judgment of the court.
Section 6 Partition: Miscellaneous Provisions
TRCP 776 CONSTRUCTION
No provision of the statutes or rules relating to partition shall affect the mode of proceeding prescribed by law for the partition of estates of decedents among the heirs and legatees, nor preclude partition in any other manner authorized by the rules of equity, which rules shall govern in proceedings for partition in all respects not provided for by law or these rules.
TRCP 777 PLEADING and PRACTICE
The same rules of pleading, practice and evidence which govern in other civil actions shall govern in suits for partition, when not in conflict with any provisions of the law or these rules relating to partition.
Rayson v. Johns, 524 S.W.2d 380,382 (Tex.App- Texarkana 1975, writ refd n.r.e.). "[l]n whatever posture the question has arisen, the courts have treated disputed issues of fact in partition proceedings as being for the jury when one has been properly demanded. [If] The law does not favor compelling an owner to sell his property against his will, but prefers a division in kind when such can be fairly and equitably made."
TRCP 778 COSTS
The court shall adjudge the costs in a partition suit to be paid by each party to whom a share has been allotted in proportion to the value of such share.
Ellis v. First City Nat'l Bank, 864 S.W.2d 555,557- 58 (Tex.App.- Tyier 1993, no writ). TRCP 778 "provides that the court shall adjudge the costs in proportion to the value of each share. ... Appellees concede that there was no testimony ... regarding the value of the several shares. ... We conclude that the record contains no evidence of value sufficient to an apportionment of costs in the manner required by [TRCP] 778." Remanded to adjudge costs.
Section 7 Quo Warranto
TRCP 779 JOINDER OF PARTIES
When it appears to the court or judge that the several rights of divers parties to the same office or franchise may properly be determined on one information, the court or judge may give leave to join all such persons in the same information in order to try their respective rights to such office or franchise.
Newsom v. State, 922 S.W.2d 274,277 (Tex.App- Austin 1996, writ denied). "[T]he State uses quo warranto actions to challenge the authority to engage in certain practices specifically enumerated by statute. See [CPRC] Section 66.001.A quo warranto proceeding may be instituted by the attorney general or by a district or county attorney. ... The State is the real plaintiff and controls the litigation, even though in some instances the actions may be at the behest of private parties."
Beach City v. State, 473 S.W.2d 656, 659 (Tex. App- Houston [14th Dist.] 1971, writ dism'd). " [ Q ] uo warranto proceedings are governed by the same ... rules of joinder of causes of action [as] apply ... in other civil cases."
TRCP 780 CITATION TO ISSUE
When such information is filed, the clerk shall issue citation as in civil actions, commanding the defendant to appear and answer the relator in an information in the nature of a quo warranto.
Mallow v. State, 374 S.W.2d 732, 733 (Tex App- Fort Worth 1964, writ refd n.r.e.). "[W]here ... Quo Warranto (suit] is brought on the theory that a purported municipal corporation is truly nonexistent because it had never been legally incorporated, and that the individuals ... should ... be ousted from their 'pretended' capacities as officers thereof,-a trial court obtains jurisdiction [of the] parties [and the] subject matter by merely serving ... individuals...."
TRCP 781 PROCEEDINGS AS IN CIVIL CASES
Every person or corporation who shall be cited as hereinbefore provided shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in cases of trial of civil cases in this State. Either party may prosecute an appeal or writ of error from any judgment rendered, as in other civil cases, subject, however, to the provisions of Rule 42*, Texas Rules of Appellate Procedure, and the appellate court shall give preference to such case, and hear and determine the same as early as practicable.
State ex reL Craw ford v. Wagner, 203 S.W.2d 795, 798 (Tex.App.-San Antonio 1947, writ reef's). " [ E] ither party in a quo warranto proceeding is entitled to prosecute an appeal as in other civil cases, provided the transcript is filed in the Court of... Appeals within 20 days after perfecting the appeal, and that the appellate court shall give preference to such cases and hear and determine them as early as practicable."
TRCP 782 REMEDY CUMULATIVE
The remedy and mode of procedure hereby prescribed shall be construed to be cumulative of any now existing.
Derrick v. County Bd. Of Educ., 374 S.W.2d 259, 262 (Tex.App.--Amarillo 1963, writ dism'd). "Even if it should be said that quo warranto was an appropriate method of contesting the elections here considered, such proceeding is only cumulative of other proper
methods."
Section 8 Trespass to Try Title
TRCP 783 REQUISITES OF PETITION
The petition shall state:
(a) The real names of the plaintiff and defendant and their residences, if known.
(b) A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county or counties in which the same are situated.
(c) The interest which the plaintiff claims in the premises, whether it be a fee simple or other estate; and, if he claims an undivided interest, the petition shall state the same and the amount thereof.
(d) That the plaintiff was in possession of the premises or entitled to such possession.
(e) That the defendant afterward unlawfully entered upon and dispossessed him of such premises, staling the date, and withholds from him the possession thereof.
(f) If rents and profits or damages are claimed, such facts as show the plaintiff to be entitled thereto and the amount thereof.
(g) It shall conclude with a prayer for the relief sought.
Yoast v, Yoast, 649 S.W.2d 289,292 (Tex.l983). "A trespass to try title action is a procedure by which rival claims to title or right of possession may be adjudicated."
United Sav. Ass'it v. Villanueva, 878 S.W.2d 619, 621 (Tex-App- Corpus Christi 1994, no writ). "While United Savings by its petition asked for declaratory and injunctive relief it also properly alleged the elements of a trespass to try title action.... We construe the pleadings as a trespass to try title action and a suit for possession."
Knapp v. Miller, 858 S.W.2d 945, 951 (Tex.App- Beaumont 1993, writ denied). "The plaintiff also pleaded that the acts of defendants in entering upon the plaintiff's land and cutting the timber thereon were willful, wanton and in total disregard of the rights of the plaintiff. The purpose of a trespass to try title action is to recover land and premises including timber when unlawfully withheld from owner and to which the owner has a right of immediate possession."
Smith v. Brooks, 825 S.W.2d 208,210 (Tex.App- Texarkana 1992, no writ). "In order to claim title by limitation based upon adverse possession, a party must plead it specifically."
TRCP 784 THE POSSESSOR SHALL BE DEFENDANT
The defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto in case they are unoccupied.
Kennesaw Life & Ace. Ins. Co. v. Goss, 694 S.W.2d 115, 118 (Tex.App- Houston [14th Dist.] 1985, writ refd n.r.e.). "The appellant would not have been a proper defendant ... since the defendant must be the person in possession of the premises or some person claiming title to the premises.... By its pleadings appellant disclaimed all interest in the property, and was not in possession of the property, thus appellees would not have recovered any damages against appellant in a Trespass to Try Title action."
TRCP 785 MAY JOIN AS DEFENDANTS WHEN
The plaintiff may join as a defendant with the person in possession, any other person who, as landlord, remainderman, reversioner or otherwise, may claim title to the premises, or any part thereof, adversely to the plaintiff.
TRCP 786 WARRANTOR ETC MAY BE MADE A PARTY
When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.
Williams v. Bollard, 722 S.W.2d 9, II (Tex App- Dallas 1986, no writ). TRCP 786 allows the mortgagor to intervene as a matter of right.
TRCP 787 LANDLORD MAY BECOME DEFENDANT
When such action shall be commenced against a tenant in possession, the landlord may enter himself as the defendant, or he may be made a party on motion of such tenant; and he shall be entitled to make the same defense as if the suit had been originally commenced against him.
TRCP 788 MAY FILE PLEA OF "NOT GUILTY" ONLY
The defendant in such action may file only the plea of "not guilty," which shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff against him, except that if he claims an allowance for improvements, he shall state the facts entitling him to the same.
Cox v. Olivard, 482 S.W.2d 682, 685 (Tex.App- Dallas 1972, writ refd n.r.e.). "[A] defendant in a trespass to try title action is not required to file a plea of 'not guilty' but that a plea of general denial has the effect of putting the plaintiff upon proof of his right to recover the land in controversy."
TRCP 789 PROOF UNDER SUCH PLEA
Under such plea of "not guilty" the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.
Walsh v. Austin, 590 S.W.2d 612, 616 (Tex.App- Houston (1st Dist.] 1979, writ dism'd). "Where ... the plaintiff has established a prima facie case, whether it be at a summary judgment hearing or upon a full trial, the defendant then has the burden of introducing some defensive evidence to raise an issue of material fact in order to prevent the rendition of a summary judgment or an instructed verdict."
TRCP 790 ANSWER TAKEN AS ADMITTING POSSESSION
Such plea or any other answer to the merits shall be an admission by the defendant, for the purpose of that action, that he was in possession of the premises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his answer the extent of his possession or claim, in which case it shall be an admission to such extent only.
Brohlin v. McMinn, 341 S.W.2d 420, 422 (Tex. 1960). "In an action in trespass to try title, the answer of the defendant to the merits of the case by a plea of not guilty relieves the plaintiffs of the necessity of proving a trespass, since the plea constitutes an admission by the defendant for the purpose of the action that he was in possession of or claimed title to the premises sued for by the plaintiffs."
TRCP 791 MAY DEMAND ABSTRACT OF TITLE
After answer filed, either party may, by notice in writing, duly served on the opposite party or his attorney of record, not less than ten days before the trial of the cause, demand an abstract in writing of the claim or title to the premises in question upon which he relies.
Ramsey v. Jones Enter., 810 S.W.2d 902,904 (Tex. App.-Beaumont 1991, writ denied). "We hold that the trial court erred in allowing appellee to prove up title ... by nothing more than the oral expert testimony of an attorney. [11] [TRCP] 791 provides for the demanding of an abstract of title by either party. At 905: [ I ] n ... trespass to try title actions where documents pertaining to title exist, ... testimony of an expert witness standing alone, constitutes no evidence of titles."
Corderv. Foster, 505 S.W.2d 645,648 (Tex-App- Houston [1st Dist.] 1973, writ refd n.r.e.). "The purpose of [TRCP] 791 and 792... is to enable the person demanding such abstract to investigate the records and thereby determine the character of the instruments upon which the opposing party relies, so that an informed defense may be prepared."
TRCP 792 TIME TO FILE ABSTRACT
Such abstract of title shall be Filed with the papers of the cause that within thirty days after the service of the notice, or within such further time that the court on good cause shown may grant; and in default thereof, the court may, after notice and hearing prior to the beginning of trial, order that no written instruments which are evidence of the claim or title of such opposite party be given on trial.
Hunt v. Heaton, 643 S.W.2d 677, 679 (Tex.l982). "Hunt sought to prove his title by a chain of instruments beginning with a patent from the State.... Because of the failure to File an abstract of the chain of title, the trial court properly excluded any offer of proof by Hunt relating to his claim or title. Hunt failed to prove his superior title and therefore, the correct judgment is that he take nothing."
Corder v. Foster, 505 S.W.2d 645,648 (Tex.App- Houston [1st Dist.] 1973, writ refdn.r.e.)."[T]he time for filing an abstract in response to a demand will be extended where the grant of additional time will not prejudice the party making the demand and the refusal of an extension would result in injustice."
TRCP 793 ABSTRACT SHALL STATE, WHAT
The abstract mentioned in the two preceding rules shall state:
(a) The nature of each document or written instrument intended to be used as evidence and its date; or
(b) If a contract or conveyance, its date, the parties thereto and the date of the proof of acknowledgment, and before what officer the same was made; and
(c) Where recorded, staling the book and page of the record.
(d) If not recorded in the county when the trial is had, copies of such instrument, with the names of the subscribing witnesses, shall be included. If such unrecorded instrument be lost or destroyed it shall be sufficient to state the nature of such instrument and its loss or destruction.
Walker v. Barrow, 464 S.W.2d 480,487 (Tex.App. -Houston [1st Dist.] 1971, writ refd n.r.e.). "[A]ny deficiency of the description contained in the abstract filed should have been called to the attention of [the receiver] by motion before trial. There was no error in its admission."
TRCP 794 AMENDED ABSTRACT
The court may allow either party to File an amended abstract of title, under the same rules, which authorize the amendment of pleadings so far as they are applicable; but in all cases the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of title.
Walker v. Barrow, 464 S.W.2d 480, 488 (Tex.App. -Houston [1st Dist.] 1971, writ refdn.r.e.). "[T]he court has authority to grant extensions of time to file an abstract and when one has, as here, been filed within the time allowed by the court, the court has discretion to allow amendments. The rule should be applied to promote justice."
TRCP 795 RULES IN OTHER CASES OBSERVED
The trial shall be conducted according to the rules of pleading, practice and evidence in other cases in the district court and conformable to the principles of trial by ejectment, except as otherwise provided by these rules.
Ramsey v. Jones Enter., 810 S.W.2d 902, 905 (Tex.App- Beaumont 1991, writ denied). TRE 702,703 or 704 "do not excuse the necessity for the production and admission of documentary evidence regarding title to real property.... (TRE] 1002 ... requires that if documentary evidence exist as to title to ... real property, that such documentary evidence must be produced and admitted."
TRCP 796 SURVEYOR APPOINTED ETC
The judge of the court may, either in term time or in vacation, at his own discretion, or on motion of either party to the action appoint a surveyor, who shall survey the premises in controversy pursuant to the order of the court, and report his action under oath to such court. If said report be not rejected for good cause shown, the same shall be admitted as evidence on the trial.
Mayflower Inv. Co. v. Stephens, 345 S.W.2d 786, 796 (Tex.App.-Dallas 1960, writ refd n.r.e.). TRCP 796 "is applicable only in trespass to try title cases."
TRCP 797 SURVEY UNNECESSARY WHEN
Where there is no dispute as to the lines or boundaries of the land in controversy, or where the defendant admits that he is in possession of the lands or tenements included in the plaintiff's claim, or title, an order of survey shall be unnecessary.
TRCP 798 COMMON SOURCE OF TITLE
It shall not be necessary for the plaintiff to deraign title beyond a common source. Proof of a common source may be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source.
Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before the trial, and the adverse party served with notice of such filing as in other cases. Such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. The plaintiff may make any legal objection to such certified copies, or the originals thereof, when introduced by the defendant.
DMIS v. Gale, 330 S.W.2d 610, 612 (Tex.l960). "In a trespass to try title suit, where the parties agree as to a common source, it is incumbent upon the plaintiff to discharge the burden of proof resting upon him to establish a superior title from such source."
Goggins v. Leo, 849 S.W.2d 373, 377 (Tex.App- Houston [14th Dist.] 1993, no writ). (TRCP] 798 "applies only to trespass to try title suits," not to forcible detainer cases.
TRCP 799 JUDGMENT BY DEFAULT
If the defendant, who has been personally served with citation according to law or these rules fails to appear and answer by himself or attorney within the time prescribed by law or these rules for other actions in the district court, then judgment by default may be entered against him and in favor of the plaintiff for the title to the premises, or the possession thereof, or for both, according to the petition, and for all costs, without any proof of title by the plaintiff.
TRCP 800 PROOF EX PARTE
If the defendant has been cited only by publication, and fails to appear and answer by himself, or by attorney of his own selection, or if any defendant, having answered, fails to appear by himself or attorney when the case is called for trial on its merits, the plaintiff shall make such proof as will entitle him prima facie to recover, whereupon the proper judgment shall be entered.
TRCP 801 WHEN DEFENDANT CLAIMS PART ONLY
Where the defendant claims part of the premises only, the answer shall be equivalent to a disclaimer of the balance.
Salazar v. Garcia, 232 S.W.2d 685, 688 (Tex. App.-San Antonio 1950, writ refd). Because "[t]he answers Filed by defendants in this cause do not claim title to [ the real estate ], but they limit their claim to an assertion of ownership of, or the right to Fix a lien on the improvements [t]he pleadings and evidence presented by the defendants amount to a disclaimer by them of any title to the lots."
TRCP 802 WHEN PLAINTIFF PROVES PART
Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.
Southern Pine Lumber Co. v. Hart, 340 S.W.2d 775, 781 (Tex-1960). If the plaintiff sues for a larger tract, he can recover for the smaller tract for which he can prove title.
TRCP 803 MAY RECOVER A PART
When there are two or more plaintiffs or defendants any one or more of the plaintiffs may recover against one or more of the defendants the premises, or any part thereof, or any interest therein, or damages, according to the rights of the parties.
TRCP 804 THE JUDGMENT
Upon the finding of the jury, or of the court where the case is tried by the court, in favor of the plaintiff for the whole or any part of the premises in controversy, the judgment shall be that the plaintiff recover of the defendant the title or possession, or both, as the case may be, of such premises, describing them, and where he recovers the possession, that he have his writ of possession.
Logon v. First Bank, 736 S.W.2d 927, 931 (Tex. App- Beaumont 1987, writ refd n.r.e.). TRCP 804 "provides that where the plaintiff recovers possession of real property in a trespass to try title action, he is entitled to a writ of possession."
TRCP 805 DAMAGES
Where it is alleged and proved that one of the parties is in possession of the premises, the court or jury, if they find for the adverse party, shall assess the damages for the use and occupation of the premises. If special injury to the property be alleged and proved, the damages for such injury shall also be assessed, and the proper judgment shall be entered therefor, on which execution may issue.
TRCP 806 CLAIM FOR IMPROVEMENTS
When the defendant or person in possession has claimed an allowance for improvements in accordance with Sections 22.021-22.024, Texas Property Code, the claim for use and occupation and damages mentioned in the preceding rule shall be considered and acted on in connection with such claim by the defendant or person in possession.
TRCP 807 JUDGMENT WHEN CLAIM FOR IMPROVEMENTS IS MADE
When a claim for improvements is successfully made under Sections 22.021-22.024, Texas Property Code, the judgment shall recite the estimated value of the premises without the improvements, and shall also include the conditions, stipulations and directions contained in Sections 22.021-22.024, Texas Property Code so far as applicable to the case before the court.
TRCP 808 THESE RULES SHALL NOT GOVERN WHEN
Nothing in Sections 22.001-22.045, Texas Property Code, shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.
TRCP 809 THESE RULES SHALL NOT GOVERN, WHEN
Nothing in these rules relating to trespass to try title shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.
Section 9 Suits Against Non-residents
TRCP 810 REQUISITES OF PLEADINGS
The petition in actions authorized by Section 17.003, Civil Practice and Remedies Code, shall state the real names of the plaintiff and defendant, and shall describe the property involved with sufficient certainty to identify the same, the interest which the plaintiff claims, and such proceedings shall be had in such action as may be necessary to fully settle and determine the question of right or title in and to said property between the parties to said suit, and to decree the title or right of the party entitled thereto; and the court may issue the appropriate order to carry such decree, judgment or order into effect; and whenever such petition has been duly filed and citation thereon has been duly served by publication as required by Rules 114-116, the plaintiff may, at any time prior to entering the decree by leave of court first had and obtained, file amended and supplemental pleadings that do not subject additional property to said suit without the necessity of reciting the defendants so cited as aforesaid.
TRCP 811 SERVICE BY PUBLICATION IN ACTIONS UNDER SECTION 17.003 CIVIL PRACTICE & REMEDIES CODE
In actions authorized by Section 17.003, Civil Practice and Remedies Code, service on the defendant or defendants may be made by publication as is provided by Rules 114-116 or by service of notice of the character and in the manner provided by Rule 108.
TRCP 812 NO JUDGMENT BY DEFAULT
No judgment by default shall be taken in such case when service has been had by publication, but in such case the facts entitling the plaintiff to judgment shall be exhibited to the court on the trial; and a statement of facts shall be filed as provided by law and these rules in suits against nonresidents of this State served by publication, where no appearance has been made by them.
TRCP 813 SUIT TO EXTINGUISH LIEN
If said suit shall be for the extinguishment of a lien or claim for money on said property that may be held by the defendant, the amount thereof, with interest, shall be ascertained by the court; and the same deposited in the registry of the court, subject to the drawn by the parties entitled thereto; but in such case no decree shall be entered until said sum is deposited; which fact shall be noted in said decree.
PART VIII CLOSING RULES
TRCP 814 EFFECTIVE DATE
These rules shall take effect on September 1st, 1941. They shall govern all proceedings in actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure shall apply. All things properly done under any previously existing rule or statutes prior to the taking effect of these rules shall be treated as valid. Where citation or other process is issued and served in compliance with existing rules or laws prior to the taking effect of these rules, the party upon whom such citation or other process has been served shall have the time provided for under such previously existing rules or laws in which to comply therewith.
TRCP 815 SUBSTANTIVE RIGHTS UNAFFECTED
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.' "
TRCP 816 JURISDICTION and VENUE UNAFFECTED
These rules shall not be construed to extend or limit the jurisdiction of the courts of the State of Texas nor the venue of actions therein.
TRCP 817 RENUMBERED
TRCP 818 REFERENCE TO FORMER STATUTES
Wherever any statute or rule refers to any practice or procedure in any law, laws, statute or statutes, or to a title, chapter, section, or article of the statutes, or contains any reference of any such nature, and the matter referred to has been supplanted in whole or in part by these rules, every such reference shall be deemed to be to the pertinent part or parts of these rules.
TRCP 819 PROCEDURE CONTINUED
All procedure prescribed by statutes of the State of Texas not specifically listed in the accompanying enumeration of repealed articles shall, insofar as the same is not inconsistent with the provisions of these rules, continue in accordance with the provisions of such statutes as rules of court. In case of inconsistency between the provisions of these rules and any statutory procedure not specifically listed as repealed, these rules shall apply.
Moore v. Johnson, 785 S.W.2d 176, 179 (Tex. App-Waco 1990, orig. proceeding). TRCP 819 "clearly provides that in the event of an inconsistency between any statutory procedural matter which is given the effect of a court rule and a specific Rule of Civil Procedure, the Rule of Civil Procedure controls."
TRCP 820 WORKERS' COMPENSATION LAW
All portions of the Workers' Compensation Law, Articles 8306 - 8309-1, Revised Civil Statutes, and amendments thereto, which relate to matters of practice and procedure are hereby adopted and retained in force and effect as rules of court.
TRCP 821 PRIOR COURT RULES REPEALED
These rules shall supersede all Court Rules heretofore promulgated for any court; and all of said prior Court Rules are hereby repealed; provided, however, any rules of procedure heretofore adopted by a particular county or district court or by any Court of Appeals which were not of general application but were solely to regulate procedure in the particular court promulgating such rules are to remain in force and effect insofar as they are not inconsistent with these rules.
TRCP 822 TITLE
These rules may be known and cited as the Texas Rules of Civil Procedure.
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