Unveiling Writs of Execution in Texas
A plaintiff who has won a lawsuit and received a final judgment (“judgment creditor”) can use a writ of execution to seize and sell the debtor’s assets to collect their damages. Writs of execution are court orders that direct a county sheriff or constable in Texas to levy on the debtor’s non-exempt property, sell it, and deliver payment to the creditor to satisfy the judgment.
What are Writs of Execution?
Writs of execution serve as formal court orders that empower law enforcement officials, typically county sheriffs, or constables, to act on behalf of a judgment creditor (the party who won the lawsuit) against the judgment debtor (the party who owes the debt). Essentially, these writs authorize the seizure and sale of the debtor's non-exempt property to fulfill the terms of the judgment.
Requirements and Procedure for Obtaining Writs of Execution
The process of obtaining a writ of execution involves several steps, starting with the judgment creditor filing a request with the court clerk of the court where the judgment was issued. This request is similar to a letter and outlines the details of the judgment and the specific assets the creditor seeks to seize. There is typically a standard waiting period of 30 days following the date of judgment before a writ can be sought, however there are exceptions. Pursuant to Texas Rule of Civil Procedure 628, if there's a risk of the debtor moving assets out of the county or attempting to defraud creditors, the judgment creditor may request expedited action. Writs of execution are formal documents that must adhere to specific legal requirements outlined in the Texas Rules of Civil Procedure.
Note**: the judgment creditor or its attorney should contact the court clerk prior to sending a letter to determine if the court has any special requirements for the issuance of a writ of execution.
Rule 629 requires that writs of execution include the following:
The style of the execution shall be "The State of Texas”;
It shall be directed to any sheriff or constable within the state of Texas;
Additionally, the writ must be signed by the court clerk or justice, and bear the court seal 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 judgement, stating the court in which, and the time when, rendered, and the names of the parties in whose favor and against whom the judgement 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/judgment creditor or his attorney.
Note**: prior to the writ of execution being delivered to a Texas sheriff or constable, the attorney for the judgment creditor should examine the writ of execution to ensure it complies with Rule 629.
Levying and Selling Property Under Writs of Execution
After obtaining a writ of execution, the court clerk will deliver the writ to a sheriff or constable within the State of Texas or to the judgment creditor’s attorney for delivery to the appropriate sheriff or constable. The next steps involve the relevant law enforcement official act upon the writ by levying on the debtor's property and, if necessary, selling the seized assets to satisfy the judgment. Here's what you need to know:
Levying on the Writ: Upon receiving the writ of execution, the appointed sheriff or constable is tasked with promptly initiating the levy process. (TRCP 637). This involves identifying and seizing the debtor's nonexempt property within the county. While the debtor may have the opportunity to select which assets to sell first, under Rule 637, if they fail to do so or if the selected assets aren't sufficient to cover the judgment, the officer has the authority to seize any non-exempt property as necessary.
Note**: Because debtors typically refuse to select property, it is helpful to inform the sheriff of what specific property they should levy upon. This way, if the debtor refuses or fails to select property, the sheriff will levy upon the property identified by the judgment creditor. The sheriff, however, must give the debtor the opportunity to select property to be sold first. The failure to do so could result in the execution being set aside.
Seizure Methods & Property Types: Different types of property may require specific seizure methods, as outlined in the Texas Rules of Civil Procedure. For instance, real property (real estate) may be subject to a levy by indorsing the writ, while personal property (movable assets) may require physical possession or notice to individuals in possession of the property. (TRCP 639). For personal property in which the debtor has a right in but is not entitled to possession, a levy is made by giving notice to the person(s) in possession of the property. Levies for other types of property are further explained in the Rules of Civil Procedure (Rule 640 – livestock, Rule 641 – corporate shares, Rule 643 – collateral, etc.).
Selling Property
Following the seizure of assets, the next crucial step is selling the property to generate funds to satisfy the judgment. The process varies depending on the type of property involved. Real property sales typically require publication of sale notices in a county newspaper once a week for three consecutive weeks, beginning at least twenty consecutive days before the sale. Only after this period can the property be sold. The notice must be in English and include the following:
The statement of the authority by virtue of which the sale is to be made;
The time of levy;
The time and place of sale;
A brief description of the property to be sold, including the number of acres, original survey, locality in the county and the name by which the land is most generally known.
Additionally, notice must be provided to the debtor or their attorney in the same manner as the published notice. Real property will generally be sold at the country courthouse on the second Tuesday of each month between 10 a.m. and 4 p.m.
For personal property, sales may occur on the premises where the personal property is taken in execution or at the courthouse door of the county. Sales can also occur elsewhere if, depending on the nature of the property, it is more convenient to exhibit it to purchasers at such place. (TRCP 649).
The notice of the time and location of a sale of personal property must be posted continuously for the ten days prior to the sale date. This posting should be done at the courthouse door of any county and at the actual location where the sale will happen. (TRCP 650).
Procedures for Property Being Sold to a Foreclosure
When property is sold due to a foreclosure of a mortgage or lien, the court's judgment must include an order for the sale. (TRCP 309). This language typically tracks Rule 309, stating “that an order of sale shall issue to any sheriff or any constable within the State of Texas, directing him to seize and sell the same as under execution, in satisfaction of the judgment; and, if the property cannot be found, or if the proceeds of such sale be insufficient to satisfy the judgment, then to take the money or any balance thereof remaining unpaid, out of any other property of the defendant, as in case of ordinary executions.” This order directs a sheriff or constable in Texas to seize and sell the property to satisfy the judgment. If the property can't be found or if the sale proceeds are not enough to cover the judgment, the sheriff or constable can take the remaining unpaid balance from any other property owned by the defendant, similar to regular executions. Additionally, the writ of execution must clearly describe the property to be sold. (TRCP 631).
Navigating the complexities of executing a writ of execution requires careful attention to legal requirements and procedures. If you're considering this option to enforce a judgment, give the experienced creditors' rights attorneys at Allen Bryson Lamar, PLLC a call.
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