If a debtor is found by the court to owe money to a creditor, the judgment debtor generally has thirty days to pay the debt. If at that time he or she has not repaid the debt, the judgment creditor has the right to obtain a Writ of Execution. As defined within Tex. R. Civ. P. 629, the writ is a court order granting a sheriff or other county official the authority to seize a debtor’s non-exempt assets and sell them to satisfy the debt.
The Writ of Execution is served to a county constable or sheriff, who must “without delay” levy the real and personal property of the judgment debtor unless directed to do otherwise. If more than one Writ of Execution is served, then the assets are distributed in the order the writs are received. Garner v. Cutler, 28 Tex. 175 (1866).
Tex. R. Civ. P. 639 outlines exactly how to collect particular types of property, everything from livestock to corporate shares of stock. Equally detailed is the type of property that is or is not exempt from collection. Exempt assets include the primary or homestead residence, current wages, professionally prescribed health aids, worker’s compensation payments, certain insurance benefits, college savings plans, certain artwork, and personal property up to $50,000 for a single person and $100,000 for a family. Code §41.001. The complete “Laundry List” of exempt items is outlined in Section 42.002(a), but the list of exempt items in Texas is long and reflective of the culture. For example, family pets are exempt as is the family Bible, two firearms, and for rural property, twelve head of cattle, 120 fowl, among other items. The list of non-exempt assets is shorter but includes items like time shares, vacation homes, pleasure boats, airplanes, and jewelry valued above a certain amount.
Another protection offered to judgment debtors is the ability to avoid the Writ of Execution with a supersedeas bond, filed with the county clerk or justice of the peace. This bond temporarily suspends the proceedings and preserves the status quo prior to the judgment. Tex. R. Civ. P. 634. A judgment debtor can also sue for wrongful execution for several reasons, if, for example, the debt has already been paid, if the levy is on exempt property, and if the levy is excessive.
Great care must be given to potential homestead property, as defined in Section 41.002(c) of the Property Code. Levying against community or separate property is also complex but an important consideration if only one person in a marriage is responsible for incurring and repaying debt. Tex. Fam. Code Ann. §3.202(a)(Vernon1997). Tex. Fam. Code Ann. §3.201(c)(Vernon 1997). Which assets may be sold and exact procedures for that process are outlined in Tex. R. Civ. P. 645. Strategies to prevent the judgment debtor from fraudulently hiding or transferring assets are also an important consideration, so important, in fact, that Texas adopted the Uniform Fraudulent Transfer Act as Tex. Bus. & Comm. Code Ann. § 24.001 et seq (Vernon 1987).
Of particular importance in a Writ of Execution are the county officials charged with enforcing the writ, usually a constable or sheriff. According to Civ. Prac. & Rem. Code § 34.072, the sheriff must “execute all process and precepts directed to him by legal authority, and make return thereof to the proper court.” They must carry out the court’s orders as written, regardless of personal feelings or biases regarding the writ itself. The sheriff should give notice of sale, deliver money collected, and may be held in contempt if he fails to carry out these expectations. The role is a challenging one because sometimes county officials are caught in the middle. For example, in the case of Condit v. Kaelin, the sheriff refused to levy against real estate on file as the judgment debtor’s homestead, and therefore exempt. This decision was initially supported by the court. Later the judgment creditor again asked the sheriff to levy against the property which was then on file as being abandoned, therefore no longer exempt. When the sheriff again refused to levy against the property, the court ruled in favor of the judgment creditor, even awarding damages due to the delay. Condit v. Kaelin, No. 13-11-00327-CV (Tex. App. – Corpus 2012, pet. denied) and Crago v. Kaelin, No. 13-15-00055-CV (Tex. App. – Corpus 2015, no pet.).
The requirements for filing and serving a Writ of Execution offer protection to both creditor and debtor. However, the statutes and guidelines involved are incredibly detailed and complex. Failing to file the writ in the proper county in the proper format, not serving the writ to the proper people in the proper time period, and countless other errors can lead to extreme complications for all involved. Working with a knowledgeable, experienced lawyer is critical when using the Writ of Execution.
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