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SHERIFFS ASSOCIATION OF TEXAS Civil Process Manual
This Civil Process Manual was assembled by Tom W. Bullington, Legal-Technical Advisor to the Sheriffs Association of Texas. It is made up of Statutes, Rules, Case law,
Attorney General Opinions and forms used by the Court.
The Sheriffs Association of Texas assumes no liability for the use of this material. Each person, depending on the information set out in this manual, should check with
his/her District or County Attorney to verify that the information set out in this manual is
correct and current law.
It is planned that, from time to time, there will be additional subject matter added to this manual.
Each year after the Legislature meets, if there are material changes, this manual will be updated to reflect the changes made by the Legislature.
If you have questions, please contact our Legal-Technical Advisor at www.txsheriffs.org or at 1-512-445-5888.
i CIVIL PROCESS MANUAL CONTENTS
Concept ...........................................................................................................................................1
General Comments ........................................................................................................................1
Liability of Sheriff/Deputy ............................................................................................................2
Glossary ..........................................................................................................................................5
Chapter 1 HOMESTEAD (Property exempt from creditors claims) .................................9 Interest in land exempt from seizure .......................................................9
Definition of Homestead..........................................................................10
Temporary renting of a Homestead .......................................................10
Abandonment of Homestead...................................................................10
Voluntary Designation of Homestead ....................................................10
Conflict with Federal law ........................................................................12
Designation of a Homestead aid of enforcement of a judgment debt .12 Notice to designate .......................................................................12
Designation by homestead claimant...........................................12
Designation by commissioner .....................................................12
Sale of excess.................................................................................12 Summary Analysis ...................................................................................13
Chapter 2 PERSONAL PROPERTY EXEMPTIONS.......................................................17 Personal Property Exemption.................................................................17
Personal Property ....................................................................................18
Additional exemption for retirement plan.............................................18
Exemption for college savings plan ........................................................19
Designation of exemption property ........................................................20
Transfer of non-exempt property...........................................................20
Child support liens...................................................................................20
Exempt public library property .............................................................20
Exempt property-state.............................................................................21
Taxation of retirement benefits by another state..................................21 Property exempt...........................................................................21
Lien not created ...........................................................................21 Summary Analysis ...................................................................................21
ii Chapter 3 TEXAS RULES OF THE COURT ....................................................................24
I. District and County Court..............................................................................24 General Rules ...........................................................................................24
Computation of Time...............................................................................24
Service of process on Sunday (Excerpts) ...............................................25
Statewide Certification to Serve Civil Process ......................................25
Writs and Process (Style) ........................................................................31
Officer/authorized person shall endorse all process.............................32
Officer to execute process - no fee in advance - exception ...................32
Filing & serving pleadings and motions ................................................32
Methods of service ...................................................................................32 Citation Issuance and form of citation..................................................................33
Form ..........................................................................................................33
Who may serve .........................................................................................33
Duty of officer or person receiving process ...........................................34
Method of service .....................................................................................34
Corporation: President, any Vice President or Registered Agent ....118
Return of service of process ....................................................................35
Examples...................................................................................................35
Defendant without state...........................................................................36
Service of process in foreign countries...................................................36
Citation by publication - Number of times to publish....................36, 37
Service of citation by publication ...........................................................37
Return of citation by publication ...........................................................37
Amendment of any process or service....................................................37 Cost and Security Parties responsible ...................................................................................37
Fee for execution of process in a civil case, demand.............................37
Parties liable for other costs....................................................................37
How Costs Collected ................................................................................38
Officer to levy ...........................................................................................38
Execution for costs ...................................................................................38
II. Rules of practice in Justice Courts Requisites of process................................................................................38
Issuance and form of citation (excerpts)................................................39
Who may serve and method of service...................................................39
Duty of officer or person receiving & return of citation (excerpts) ....40
To enforce judgment - personal property..............................................40
Rules governing - generally same as county/district court ..................40
Summary Analysis ...................................................................................41
iii Chapter 4 COURT COSTS Fees set by commissioners court.............................................................. 46
Service of process for Appellate Court ................................................... 47
Payment of costs incurred for care of certain property ........................ 47
Summary Analysis .................................................................................... 47
Chapter 5 PAPER TRAIL Filing system.............................................................................................. 49
Chapter 6 EXECUTION OF JUDGMENTS
Issuance and Levy of Writ No execution on dormant judgment........................................................ 50
Effect of plaintiffs death.......................................................................... 50
Effect of defendants death ...................................................................... 50
Levy of property conveyed to third party .............................................. 51
Levy of property of surety........................................................................ 51 Recovery of Seized Property Recovery of property before sale............................................................. 51
Recovery of property after sale ............................................................... 51 Sale Sale at place other than courthouse door ............................................... 51
Sale of city lots........................................................................................... 51
Sale of rural property ............................................................................... 52
Stock shares subject to sale ...................................................................... 52
Persons eligible to purchase real property ............................................. 52
Conveyance of title after sale ................................................................... 53
Purchaser considered innocent purchaser without notice .................... 53
Distribution of sale proceeds.................................................................... 53
Purchases by officer void ......................................................................... 54 Duties and Liabilities of Executing Officer Duty toward seized personalty, liability ................................................. 54
Duty of Successor officer.......................................................................... 54
Improper endorsement of Writ ............................................................... 54
Improper return of Writ .......................................................................... 54
Failure to levy or sell ................................................................................ 55
Improper sale ............................................................................................ 55
Failure to deliver money collected........................................................... 55
Rules Governing Actions under this Chapter ........................................ 55
Payment of Damages ................................................................................ 55
Right of Subrogation ................................................................................ 55
Duties of Executing Officer...................................................................... 56
Timing of Execution and Return............................................................. 56
Transfer of Writ, no Duty to Levy Outside of County .......................... 56
Officers Surety ......................................................................................... 56
iv Wrongful Levy .......................................................................................... 57
Exclusive Levy........................................................................................... 57 Enforcement of Judgments of other States Filing and status of foreign judgment ..................................................... 57
Fees ............................................................................................................. 57 Enforcement of Judgments of other Countries Recognition and enforcement .................................................................. 58
Chapter 7 ANCILLARY PROCEEDINGS - WRITS & PROCESS 1.
ATTACHMENT Civil Practice & Remedies Code.............................................................. 58 Attachment lien ............................................................................. 60
Judgment and foreclosure............................................................ 60
Works of fine art ........................................................................... 60
Exemption when en route to or in exhibition ............................. 60
Handling and transportation ....................................................... 61 Texas Rules of the Court .......................................................................... 61 Application for writ of attachment & order (excerpts)............. 61
Writ of Attachment directed to sheriff/constable ...................... 62
Form of Writ ................................................................................. 62
Delivery of Writ ............................................................................ 63
Duty of Officer .............................................................................. 63
Levy - how made ........................................................................... 63
Service of Writ on defendant ....................................................... 63
Defendant may replevy (excerpt) ................................................ 63
Sale of perishable property .......................................................... 64
To protect interest......................................................................... 64
Procedure for sale ......................................................................... 64
Return of sale ................................................................................ 65
Judge may make necessary orders .............................................. 65
Return of Writ............................................................................... 65
Report of disposition of property ................................................ 65
Amendment - Officers return ...................................................... 66
Examples........................................................................................ 66
2. SEQUESTRATION Civil Practice & Remedies Code.............................................................. 68 Grounds ......................................................................................... 68
Pending suit required ................................................................... 68
Available for claim not due .......................................................... 68
Who may issue............................................................................... 68
Required statement of rights - defendant ................................... 68
v Officers liability and duty of care .............................................. 69
Compensation of Officer .............................................................. 69
Indemnification of officer for money spent ................................ 69 Texas Rules of the Court .......................................................................... 70 Requisites of Writ ......................................................................... 70
Amendment of officers return ..................................................... 70
Service of Writ .............................................................................. 70
Defendant may replevy................................................................. 71
Bond for personal property ......................................................... 71
Bond for real estate....................................................................... 71
Return of bond and entry of judgment....................................... 71
Defendant may return sequestered property ............................. 71
Disposition of the property by officer ......................................... 72
Execution ....................................................................................... 72
Plaintiff may replevy .................................................................... 72
When bond forfeited..................................................................... 73
Sale of perishable goods ............................................................... 73
Order of sale for............................................................................ 73
Return of order ............................................................................. 73
Sale on debt not due...................................................................... 73
Purchasers bond .......................................................................... 73
Return of bond .............................................................................. 74
Recovery on bond.......................................................................... 74
Examples........................................................................................ 74 3.
DISTRESS WARRANTS Texas Rules of the Court .......................................................................... 74 Requisites for distress warrant.................................................... 74
Service of distress warrant........................................................... 75
Defendant may replevy................................................................. 75
Dissolution or modification of distress warrant......................... 75
Sale of perishable property .......................................................... 76
Sale to protect interest.................................................................. 76
Procedure for sale ......................................................................... 76
Return of sale ................................................................................ 77
Citation for defendant and return............................................... 77
Petition ........................................................................................... 77
Examples........................................................................................ 77
vi 4. EXECUTIONS Texas Rules of the Court .......................................................................... 78 Enforcement of judgment ............................................................ 78
Execution ....................................................................................... 78
Requisites of execution ................................................................. 78
Execution on judgment for money .............................................. 79
Execution for sale of particular property ................................... 79
Execution for delivery of certain property ................................. 79
Execution for possession or value of personal property............ 79
Execution Superseded................................................................... 79
Stay of Execution in Justice Court .............................................. 79
Indorsement of execution by officer............................................ 80
Levy of Execution.......................................................................... 80
Property not to be designated by the defendant ........................ 80
Levy - real estate - personal property ......................................... 81
Levy on stock running at large .................................................... 81
Levy on shares of stock................................................................. 81
Levy on goods pledged or mortgaged ......................................... 81
Defendant may give delivery bond .............................................. 81
Property may be sold by the defendant ...................................... 81
Forfeited delivery bond ................................................................ 82
Sale of real property ..................................................................... 82
Notice of sale of real estate ........................................................... 82
Courthouse Door defined ......................................................... 83
Sale of personal property ............................................................. 83
Notice of sale of personal property.............................................. 83
When execution not satisfied ....................................................... 83
Resale of property......................................................................... 83
Return of execution....................................................................... 84
Return by Mail .............................................................................. 84
Examples........................................................................................ 84 5.
GARNISHMENT Texas Civil practice and Remedies Code................................................ 84 Grounds for Writ of garnishment ............................................... 85
Who may issue Writ ..................................................................... 85
Effect of service ............................................................................. 85
Current wages exempt.................................................................. 85
Garnishment of funds in inmate trust fund................................ 85
Financial institution as garnishee................................................ 86
Application for Writ of garnishment and order ........................ 86
Bond for garnishment................................................................... 86
vii Case docketed................................................................................ 86
Form of Writ of Garnishment ..................................................... 87
Delivery of Writ ............................................................................ 87
Execution and return of Writ ...................................................... 87
Service of Writ on defendant ....................................................... 87
Defendant may replevy................................................................. 88
Judgment when garnishee is indebted ........................................ 88
Judgment for effects ..................................................................... 89
Refusal to deliver effects............................................................... 89
Sale of effects ................................................................................. 89
Docket and notice.......................................................................... 89
Amendment - officers return ....................................................... 89
Examples........................................................................................ 90
6.
INJUNCTION Texas Rules of the Court .......................................................................... 90 Granting an injunction................................................................. 90
Citation .......................................................................................... 90
Requisites of Writ ......................................................................... 91
Clerk to issue Writ........................................................................ 91
Service and return ........................................................................ 91
Disobedience of injunction ........................................................... 91 Chapter 8 TURNOVER ORDER - JUDGMENTS.............................................................. 93 Passage of Title.......................................................................................... 93
Collection of judgment through court proceeding................................. 93
Authority of court to order turnover of wages....................................... 93
Turnover by financial institution ............................................................ 94
Chapter 9 FORCIBLE ENTRY AND DETAINER ............................................................. 94 Texas Property Code ................................................................................ 94 Forcible entry and detainer ................................................... 94, 98
Forcible detainer ........................................................................... 94
Jurisdiction .................................................................................... 95
Notice to vacate prior to filing eviction suit................................ 95
Writ of Possession ......................................................................... 96
Warehousemans lien ................................................................... 97
Non-lawyer representation........................................................... 98 Texas Rules of the Court .......................................................................... 98 May sue for rent............................................................................ 98
Citation .......................................................................................... 98
Complainant may have possession .............................................. 98
Requisites of Complaint ............................................................... 99
viii Service of citation.......................................................................... 99
Service by delivery to premises.................................................... 99
Docketed ...................................................................................... 100
Demanding jury .......................................................................... 100
Only issue..................................................................................... 100
Representation by agents ........................................................... 100
May appeal .................................................................................. 100
Paupers affidavit........................................................................ 101
Writ of Possession ....................................................................... 101
Lien............................................................................................... 101
Landlord and tenant ................................................................... 101
Chapter 10 FINANCE CODE - JUDGEMENT INTEREST RATES ............................... 102 Interest rate to be charged in judgment ............................................... 102
Judgment interest rate - Interest rate on time price differential in contract and non-contract ..................................................... 102 Publication of judgment interest rate ................................................... 103
Accrual of judgment interest ................................................................. 103
Compounding of judgment interest - post-judgment .......................... 103
Judicial notice of judgment interest rate .............................................. 103
Chapter 11 MANUFACTURED HOME TENANCIES Texas property code (new law - effective 4-1-02)................................. 103 Chapter 12 TAX CODE - DELINQUENT TAX SALES .................................................... 104 Seizure of Personal Property Property subject to seizure..................................................................... 104
Institution of seizure ............................................................................... 104
Tax Warrant............................................................................................ 105
Bond for payment for taxes.................................................................... 105
Tax sales - Notice; Method; Disposition of Proceeds........................... 105 Delinquent Tax Suits Suit to collect delinquent tax.................................................................. 107
Adjudged value........................................................................................ 107
Writ of Possession ................................................................................... 107
Order of Sale, Payment before sale....................................................... 109 Seizure of Real Property Property subject to seizure by municipality......................................... 109
Property subject to seizure by county................................................... 109
Notice........................................................................................................ 110
Institution of seizure ............................................................................... 111
Tax Warrant............................................................................................ 111
Notice of Tax Sale ................................................................................... 112
ix Tax Sales Sale of property....................................................................................... 112
Persons eligible to purchase real property ........................................... 115
Distribution of Proceeds......................................................................... 117 Resale by Taxing Unit Resale by taxing unit............................................................................... 118
Distribution of proceeds of resale.......................................................... 119
Chapter 13 FORMS ................................................................................................................ 120 These are provided sample forms, from the Honorable Tom Lawrence, Justice of the
Peace, Precinct 4, place Two, Harris County, Texas, and the Texas Justice Training
Center Desk Book, used in Civil Process, that are used in Justice Court. This
information is provided so you may become familiar with these papers. You can also get copies of Civil Process Citation and Writs from the District and
County Clerk. The following Sample forms are provided to you as follows: (See pages 122-131) 1. Citation
2. Writ of Execution on Judgment for Money
3. Writ of Attachment
4. Writ of Possession
5. Writ of Garnishment
6. Tenants Writ of Reentry
7. Writ of Sequestration
8. Citation to Defendant in Small Claims Court
9. Writ of Citation - Forcible Detainer 10. Writ of Citation - Small Claims Court
Chapter 14 ATTORNEY GENERAL OPINIONS .............................................................. 132 GA-0140 Execution of tax warrants and property seizure and sale under Chapter 33,
Tax Code.
JM-1046 Commissioners courts may set reasonable fees for services performed by sheriff and
constables in unsuccessful attempts to serve civil process. Chapter 15 CORPORATION ................................................................................................ 121
TOPICAL INDEX ...................................................................................................................... 147 1 CIVIL PROCESS The purpose of this manual is to help identify those civil processes that are used most often by the sheriff or deputy sheriff, setting out the duties assigned to them by the statutes, rules, case law, and attorney general opinions. It is hoped that this material will be helpful to the Sheriff and his Deputies, in carrying out their duties in serving civil process, as well as, and instructor conducting a class in Civil Process. The Texas Commission on Law Enforcement Officers Standards and Education have approved several civil process correspondent courses that an officer might take for credit. If you have an interest in obtaining credit you may contact the Commission at 1-512-936-7700 or their website, www.tcleose.state.tx.us, for further information. CONCEPT Civil Process is like a game. It is difficult, but you must know the rules in order to be confident and successful. For example: If you play baseball, the rules are; 4 balls-you walk; 3 strikes-you are out. By the same token if you are presented with a writ or a process, you follow the rules and do what the court has ordered you to do. You take the court order and apply it to the rules of civil process and proceed. If you dont follow the rules you are out. It cannot be said to often; you must know the rules in order to be successful. Although it takes time to study the statutes, rules, case law, and attorney general opinions it will pay dividend in the long run knowing that you know how to served civil process promptly and properly. GENERAL COMMENTS It should be remembered that before you become involved in serving civil papers several things must happen. (1) The individual or his attorney must file a claim or demand. (2) The court must issue a citation or appropriate civil process addressed to the defendant. (3) The citation or other appropriate civil process must be served on the defendant by the sheriff, constable or other person as designated by the rules of civil procedure and rules of the Supreme Court of Texas. Processing civil process papers is one of the more important duties assigned to the sheriff by law. It requires study and training. The liabilities of the sheriff, or constable, and their deputies in processing civil papers is breathtaking. The processing of civil papers requires knowledge, hard work and dedication. This is not a beginners job or a place for someone who cant perform at other tasks . More than one person in the office should know how to carry out these duties. Service of writs, execution and other processes should be done in a courteous and polite manner. When asked by the person being served what the papers are all about, it is suggested that the process server advise the defendant that he does not know what all the legal ramification are in the papers, and that the defendant might want to discuss this matter with an attorney for a full explanation and advice. If necessary, the process server might explain to the defendant that he is required by law to deliver the papers to him/her. 2 It will never fail that a situation will come up concerning the service of process and you will have no idea how to handle it. Stop, take a deep breath, use common sense and if you cant figure out what to do then call someone for help. This might be your legal advisor, a fellow civil process server from another county, your instructor or your Association. No body has all the answers. It is the duty of the County Attorney, District Attorney or the Criminal District Attorney (legal advisor) to provide legal opinions and advice, in writing if requested, to the sheriff when there are questions concerning their official duties of office. (41.007 - Government Code) If there is any question or concern in serving a particular civil process the sheriff or deputy should contact their legal advisor for direction and clarification as how to proceed and/or plaintiffs attorney. In the event of a law suit against the sheriff/deputy the sheriff should immediately contact his legal advisor an give him the papers served on him. The legal advisor will be representing the sheriff and or his deputies in most instances. (157.901 Local Government Code) LIABILITY OF SHERIFF/DEPUTY CIVIL PRACTICE & REMEDIES CODE
7.001 - Liability for Refusal or Neglect in Performance of Official Duties (a) A clerk, sheriff, or other officer who neglects or refuses to perform a duty required under Title 42, Revised Statutes, or under a provision of this Code derived from that title is liable for damages in a suit brought by a person injured by the officers neglect or refusal. (b) The officer may be punished for contempt of court for neglect or refusal in performance of those duties.
7.002 - Liability for Deposits Pending Suit (Excepts) (a) An officer who has custody of a sum of money, a debt, an instrument, or other property paid to or deposited with a court pending the outcome of a cause of action shall seal the property in a secure package in a safe or bank vault that is accessible and subject to the control of the court. (b) The officer shall keep in his office as part of his records an itemized inventory of property deposited with the court. The inventory must list the disposition of the property and the account for which the property was received. (c) At the expiration of the officers term, the office shall transfer all deposited property and the inventory to the officers successor in office. The successor shall give a receipt for the transferred property and the inventory. (d) - - - - 3 7.003 - Liability Regarding Execution of Writs (a) Except a provided by Section 34.061, an officer is not liable for damages resulting from the execution of a writ issued by a court of this state if the officer: 1. in good faith executes the writ as provided by law and by the Texas Rules of Civil Procedures; and 2. use reasonable diligence in performing his official duties. (b) An office shall execute a writ issued by a court of this state without requiring that bond be posted for the indemnification of the officer.
7.021 - Suit on Official Bonds
Suit may be brought in the name of this state alone on an official bond for the benefit of all the parties entitled to recover on the bond if: 1. the bond is made payable to this state or to an officer of this state; and 2. a recovery on the bond is authorized by or would inure to the benefit of parties other than this state. It is mandated by statute that the sheriff shall execute all process and precepts directed to the sheriff by legal authority and shall return the process or precept to the proper court on or before the date the process or precept is returnable. The writ must be served and returned promptly. (This does not mean that the sheriff is the only person that can serve civil process but only when directed to the sheriff by legal authority. The sheriff commits an offense if the sheriff fails to return a process or precept or makes a false return and is subject to a fine of not more than $100. The sheriff is liable for all damages sustained by a person by reason of an offense committed by the sheriff. (85.021, Local Government Code)
The sheriff is mandated by statute to execute subpoenas and other process directed to the sheriff that are issued by the speaker of the house of representatives, the president of the senate, or the chairman of a committee of either house of the legislature. Failure to execute the subpoena or other process carries the same penalties as failure to execute process issued by the court. (85.022, Local Government Code) Failure to execute all process and precepts received by the sheriff, in a timely manor, may lead to removal from office. (87.011 Local Government Code) It should be remembered that when a sheriff appoints a deputy or a reserved deputy sheriff that the sheriff is responsible for the official acts of his deputy. Thus when a sheriff appoints a deputy to serve civil process, the sheriff is responsible for any mistakes or omissions made by the deputy. (85.03 (d), Local Government Code) It is important that the sheriff/deputies that will be charged with the responsibility of serving civil process attend training seminars annually on civil process, on a regular basis, in order to upgrade their skills and knowledge. In order to be proficient as a civil process server you must know what the statutes, case law, rules and attorney general opinions say about the subject matter. Attorney General opinions 4 may be found on the internet at www.oag.state.tx.us.
You cannot effectively carry out these duties without having access to the statutes, case law, rules, and attorney general opinions. It is suggested that you have the following paper bound statutes, codes and rules, be immediately accessible. in order to be more efficient in carrying out your duties. These books could be purchased by the sheriff through the funds allocated for training. 1. Texas Local Government Code 2. Texas Property Code 3. Texas Civil Practice and Remedies Code 4. Texas Rules of the Court 5. Texas Juris 3d, Vol. 59 - Police, Sheriff, and Constables 6. Access to the Black Statutes and Southwestern reporter, (County law library. See your legal advisor) These paper bound books may be purchased from the West Group. For information on prices or other information - call 1-800 344 5009 or on internet at www.westgroup.com. It is important that you know all of the rules and how to apply them. Once you have become comfortable with understanding the rules you will find that when ever a situation arises in performing the duties you will have more confidence in what you do. Remember you must do what you think is right regardless what the plaintiffs or defendants attorney thinks you should do. It is suggested that if there are questions about the process that you are serving that you contact plaintiffs attorney, as well as, your county legal advisor for their thoughts. The plaintiffs and defendants attorney, as well as, your county legal advisor, are officers of the Court. When in doubt always get the attorney to furnish you something in writing on their stationary or send it to you by fax on their stationary. This way there will be no doubt as to what information and instructions the attorney has given you. The Commission on Law Enforcement Officers Standards and Education will allow credit on all Civil Process courses taken by the peace officer, and passed, if the courses have been approved by the Commission. The sheriff and his deputies may serve civil process if directed to them. You are not a JUDGE OR A LAWYER. It is not your job to question the judgments and orders of the court, unless there appears to be an error, but to follow the orders of the court in a timely manner. It is suggested if you find an error, in the process sent to you, that you talk to the clerk of the court that issued the process and/or the attorney or person that delivered the process to you and discuss your concerns with them. When in doubt never hesitate to ask for help. 5 CIVIL PROCESS GLOSSARY The following are the most common terms used in civil process and definitions of Writs and enforcement document as set out in The Commission on Law Enforcement Officers Standards and Education curriculum and, rather than reinvent the wheel, they are as follows:
ALTERNATIVE SERVICE A METHOD OF DELIVERING TO AN UN- COOPERATIVE DEFENDANT.
ANSWER A DEFENDANTS WRITTEN REPLY TO A PLAINTIFFS PETITION.
APPLICANT A PARTY MAKING APPLICATION TO THE COURT OR PETITIONING THE COURT FOR SOME ACTION.
BENCH WARRANT & CAPIAS A WRIT ISSUED TO AN OFFICER COMMANDING THAT SPECIFIC PERSON BE TAKEN INTO CUSTODY AND BROUGHT BEFORE THE COURT IMMEDIATELY OR AT A SPECIFIC TIME AND PLACE. BENCH WARRANT IS ISSUED BY AND SIGNED BY A JUDGE. CAPIAS IS IN MOTION FORM AND ISSUED BY A CLERK OF THE COMPETENT COURT.
CITATION AN OFFICIAL NOTICE FROM A COURT OF COMPETENT JURISDICTION, ISSUED TO A DEFENDANT AFTER A PLAINTIFFS PETITION IS FILED; THE CITATION COMMANDS THE DEFENDANT TO ANSWER & APPEAR IN COURT AT A SPECIFIC TIME. CONTEMPT PROCEEDINGS HELD TO DETERMINE WHETHER A PERSON HAS VIOLATED A LAWFUL COURT ORDER AND TO SET PUNISHMENT IF VIOLATION IS FOUND. WHERE AN OFFICER REFUSES TO CARRY OUT LAWFULLY IMPOSED DUTIES, REFUSAL IS PUNISHABLE AS A CONTEMPT.
DEFAULT JUDGMENT THE FAILURE TO PERFORM SOME ACTION REQUIRED BY LAW WITHIN THE SPECIFIED TIME. IN A CIVIL LAWSUIT, JUDGMENT BY DEFAULT MAY BE RENDERED AGAINST A PARTY WHO HAS FAILED TO ANSWER OR APPEAR AS DIRECTED. 6
DILIGENCE EFFORT PERSISTENT ACTIVITY, PRUDENCE OR CARE; DILIGENT EFFORT IS THAT WHICH IS PROPERLY EXPECTED FROM A REASONABLE AND PRUDENT PERSON UNDER THE PARTICULAR CIRCUMSTANCES.
INSTANTER IMMEDIATE, NOW OR INSTANTLY.
JUDGMENT THE FINAL ORDER OF A COURT IN A CIVIL SUIT WHICH SETTLES ALL DISPUTED ISSUES, DETERMINES THE RIGHTS OF THE PARTIES WITH REGARDS TO THE SUBJECT MATTER OF THE SUIT, AND WHICH IS SUBJECT TO BEING ENFORCED BY A WRIT.
JURISDICTION THE POWER OF A COURT TO LAWFULLY ACT WITH REGARD TO PERSONS AND PROPERTY.
ORDERS THE DIRECTIONS OF A COURT OR JUDGE: A (ALSO KNOWN AS WRITS) MANDATE OR COMMAND.
PETITION A DOCUMENT FILED BY THE PLAINTIFF WITH THE CLERK OF THE COURT WHICH OUTLINES THE BASIS OF THE COMPLAINT AGAINST THE DEFENDANT AND THE RELIEF BEING SOUGHT FROM THE COURT.
PLAINTIFF A PARTY IN A CIVIL SUIT, MAINLY THE ONE WHO INITIATES THE SUIT BY FILING A PETITION.
PROCESS ALL WRITS AND OFFICIAL DOCUMENTS ISSUED BY COURTS IN CONNECTION WITH PENDING SUITS.
RESPONDENT ALSO KNOWN AS THE DEFENDANT.
RETURN THE ENDORSEMENT MADE BY A SHERIFF OR CONSTABLE UPON PROCESS. WRIT OR NOTICE STATING WHAT HAS BEEN ACCOMPLISHED, AND THE TIME AND MODE OF SERVICE.
SERVICE THE DELIVERY OF A WRIT, NOTICE, 7 INJUNCTION, ETC. BY AN AUTHORIZED PERSON, TO A PERSON WHO IS THEREBY OFFICIALLY NOTIFIED OF SOME PROCEEDING CONCERNING HIM.
SHOW CAUSE A NOTICE TO THE DEFENDANT TO EITHER APPEAR IN COURT OR PREPARE A WRITTEN ANSWER TO SHOW CAUSE FOR FAILING TO RESPOND TO A PREVIOUS ORDER OF THE COURT. MAY ALSO BE KNOWN AS A NOTICE.
STYLE OR FORMAT THE PRESCRIBED STRUCTURE FOR THE CLERKS OF THE COURT TO USE IN DEVELOPING THE PROCESS.
WRIT EXAMPLES OF WRITS: EXECUTION, POSSESSION, GARNISHMENT, SEQUESTRATION, ATTACHMENT, INJUNCTION, ETC. LATIN TERMS
ET AL AND ALL OTHERS
EX PARTE ANY PROCEEDING WHICH IS HELD FOR THE BENEFIT OF, OR ON APPLICATION OF, ONLY ONE PARTY, IN THE ABSENCE OF ONE PARTY.
IN RE IN THE INTEREST OF
NULA BONA NO GOODS OR NO FUNDS
PRO BONO NO FEE, USUALLY WORK PROVIDED BY ATTORNEY AT NO COST.
PRO SE REPRESENTING ONES SELF IN AN ACTION DEFINITIONS OF WRITS AND ENFORCEMENT DOCUMENTS
ABSTRACT OF JUDGMENT A COMPLETE HISTORY IN SHORT, ABBREVIATED FROM OF THE CASE AS FOUND IN THE RECORD, WHICH WHEN FILED WITH THE COUNTY CLERK CREATES A JUDGMENT LIEN OR REAL ESTATE OF 8 THE DEFENDANT.
ATTACHMENT A PROCEDURE OR WRIT WHICH MAY BE USED TO BRING A PERSON OR PROPERTY INTO THE CUSTODY OF THE COURT.
CONTEMPT OF COURT PROCEEDINGS HELD TO DETERMINE WHETHER A PERSON HAS VIOLATED A LAWFUL COURT ORDER AND TO SET PUNISHMENT IF VIOLATION IS FOUND. WHERE AN OFFICER REFUSES TO CARRY OUT LAWFULLY IMPOSED DUTIES, REFUSAL IS PUNISHABLE AS CONTEMPT.
DISTRESS WARRANT A WRIT ISSUED BY A JP COURT DIRECTING THE SEIZURE OF A TENANTS PROPERTY FOR FAILURE TO PAY RENT AS DUE.
EXECUTION A PROCESS AND WRIT ISSUED BY A COURT
ORDER OF SALE TO ENFORCE AND COLLECT MONEY UPON DEMAND ON A JUDGMENT BY THE SEIZURE AND SALE OF NON-EXEMPT PROPERTY. GARNISHMENT A WRIT AND PROCESS DIRECTED TO ONE WHO HAS MONEY OR PROPERTY IN HIS POSSESSION BELONGING TO THE DEFENDANT, ORDERING SUCH THIRD PERSON NOT TO DELIVER OR PAY IT TO THE DEFENDANT BUT TO DELIVER OR HOLD IT FOR PLAINTIFF OR AS DIRECTED BY THE COURT.
INJUNCTION A WRIT ISSUED BY A COURT WHICH DEMANDS OR PROHIBITS SPECIFIED ACTIONS.
POSSESSION A WRIT EMPLOYED TO ENFORCE A JUDG- NOT IN THE EVICTION MENT TO RECOVER POSSESSION OF REAL PROCESS OR PERSONAL PROPERTY.
REENTRY THE ACT BY MEANS OF A WRIT RETURNING THE POSSESSION OF LAND OR TENEMENTS (RENTAL PROPERTY) TO THE TENANT AFTER A LANDLORD HAS WRONGLY LOCKED THE TENANT OUT OF THE PREMISES. 9
RESTRAINING ORDER AN ORDER TO THE DEFENDANT(S) PROHIBITING HIM FROM DOING AN ACT PROHIBITED IN THE ORDER UNTIL A FORMAL HEARING CAN BE CONDUCTED.
SEQUESTRATION AN ORDER DIRECTING THE SHERIFF OR CONSTABLE TO TAKE INTO HIS POSSESSION CERTAIN PROPERTY OF WHICH ANOTHER PERSON HAS POSSESSION UNTIL THE SUIT CAN BE DECIDED OR AS THE COURT DIRECTS. CHAPTER 1 HOMESTEAD PROPERTY EXEMPT FROM CREDITORS CLAIMS TEXAS PROPERTY CODE
41.001 -Interest in Land Exempt from Seizure (a) homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claim of creditors except for encumbrances properly fixed on homestead property. (b) Encumbrances may be properly fixed on homestead property for: 1. Purchase money; 2. Taxes on the property; 3. Work and material used in constructing improvements on the property if contracted for in writing as provided by Sect ions 53.254 (a)(b) and (c); 4. An owelty of partition imposed against the entirety of the property by a court order or by a written agreement of the parties to the partition. Including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding; or 5. The refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses if the homestead is a family homestead, or from the tax debt of the owner. 6. An extension of credit that meets the requirements of Section 50(a)(6), Article XVI, Texas Constitution. 7. A reverse mortgage that meets the requirements of Sections 50(k)-(p), Article XVI, Texas Constitution. (c) The homestead claimants proceeds of a sale of a homestead are not subject to seizure for a creditors claim for six months after the date of sale. 10 41.002 -Definition of Homestead (a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single, adult person, not otherwise entitled to a homestead, shall consist of not more than 10 acres of land which may be in one or more contiguous lots, together with any improvements thereon. (b) If used for the purposes of a rural home, the homestead shall consist of: 1. For a famil</b>y, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or 2. For a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon. (c) A homestead in considered to be urban if at the time the designation is made, the property is: 1. Located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision; and 2. Served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: A. Electric; B. Natural gas; C. Sewer; D. Storm sewer; and E. Water (d) The definition of a homestead as provided in this section applies to all homesteads in this state when ever created. 41.003 - Temporary Renting of a Homestead
Temporary renting of a homestead does not change its homestead character if the homestead claimant has not acquired another homestead.
41.004 - Abandonment of a Homestead If a homestead claimant is married, a homestead cannot be abandoned without the consent of the claimants spouse.
41.005 - Voluntary Designation of Homestead (a) If a rural homestead of a family is part of one or more parcels containing a total of more than 200 acres, the head of the family and, if married, that persons spouse may voluntarily designate not more than 200 acres of the property as the homestead. If a rural homestead of a single adult person, not otherwise entitled to a homestead, is part of one or more parcels containing a total of more than 100 acres, the person may voluntarily designate not more than 100 acres of the property as the homestead. 11 (b) If an urban homestead of a family, or an urban homestead of a single adult person not otherwise entitled to a homestead is part of one or more contiguous lots containing a total of more than 10 acres, the head of the family and, if married, that persons spouse or the single adult person, as applicable, may voluntarily designate not more than 10 acres of the property as the homestead. (c) Except as provided by Subsection (e) or Sub-chapter B, to designate property as a homestead, a person or persons, as applicable, must make the designation in an instrument that is signed and acknowledged or proved in the manner required for the recording of other instruments. The person or persons must file the designation with the county clerk of the county in which all or part of the property is located. The clerk shall record the designation in the county deed records. The designation must contain: (1) a description sufficient to identify the property designated; (2) a statement by the person or persons who executed the instrument that the property is designated as a homestead of the persons family or as the homestead of a single adult person and not otherwise entitled to a homestead; (3) the name of the current record titleholder of the property; and (4) for a rural homestead, the number of acres designated and, if there is more than one survey the number of acres in each. (d) a person or persons, as applicable may change the boundaries of a homestead designated under Sub-section (c) by executing and recording an instrument in the manner required for a voluntary designation under this subsection. A change under this subsection does not impair rights acquired by a party before the change. (e) Except as otherwise provided by this subsection, property on which a person receives an exemption from taxation under Section 11.43, Tax Code, is considered to have been designated as the persons homestead for the purposes of this subchapter if the property is listed as the persons residence homestead on the most recent appraisal roll for the appraisal district established for the county in which the property is located. If a person designates property as a homestead under Subsection (c) or Subchapter B and a different property is considered to have been designated as the persons homestead under this subsection, the designation under Subsection (c) or Subchapter B, as applicable, prevails for purposes of this chapter. (f) If a person or persons, as applicable, have not made a voluntary designation of a homestead under this section as of the time a writ of execution is issued against the person, any designation of the persons or persons homestead must be made in accordance with Subchapter B. (g) An instrument that made a voluntary designation of a homestead in accordance with prior law and that is on file with the county clerk on September 1, 1987, is considered a voluntary designation of a homestead under this section. 12 41.008 - Conflict with Federal Law
To the extent of any conflict between this subchapter and any federal law that imposes an upper limit on the amount, including the monetary amount or acreage amount, of homestead property a person may exempt from seizure, this subchapter prevails to the extent allowed under federal law. DESIGNATION OF A HOMESTEAD IN AID OF ENFORCEMENT OF A JUDGMENT DEBT
41.021 - Notice to Designate If an execution is issued against a holder of an interest in land of which a homestead may be a part and the judgment debtor has not made a voluntary designation of a homestead under Section 41.005, the judgment creditor may give the judgment debtor notice to designate the homestead as defined in Section 41.002. The notice shall state that if the judgment debtor fails to designate the homestead within the time allowed by Section 41.022, the court will appoint a commissioner to make the designation at the expense of the judgment debtor.
41.022 - Designation by Homestead Claimant (Excerpt) At any time before 10 a.m. on the Monday next after the expiration of 20 days after the date of service of the notice to designate, the judgment debtor may designate the homestead as defined in Section 41.002 by filing a written designation, signed by the judgment debtor, with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated.
41.023 - Designation by Commissioner (a) If a judgment debtor who has not make a voluntary designation of a homestead under Section 41.005 does not designate a homestead as provided in Section 41.022, on motion of the judgment creditor, filed within 90 days after the issuance of the writ of execution, the court from which the writ of execution issued shall appoint a commissioner to designate the judgment debtors homestead. - - - - - (b) & (c) - - - -
41.024 - Sale of Excess An officer holding an execution sale of property of a judgment debtor whose homestead had been designated under this chapter may sell the excess of the judgment debtors interest in land not included in the homestead. 13 SUMMARY ANALYSIS HOMESTEAD TEXAS PROPERTY CODE 1. A civil processor cannot seize and sell land nor can he seize and sell one or more lots used for a place of burial of the dead that has been designated as a homestead except for encumbrances expressly fixed on homestead property. Those encumbrances are: (a) Purchase money (b) Taxes on the property (c) Work and material used in constructing improvements on the property, contracted in writing and filed with the county clerk in the county which the property is located. (d) Partition or division due to divorce proceedings
2. Proceeds of sale of homestead are not subject to seizure until six months after the date of sale. HOMESTEAD - DEFINITION URBAN (a) Used as a home and/or both a home and a place to exercise a calling or business. 1. Family or a single, adult person not entitled to a homestead - may have not more than 10 acres of land which may be in one or more contiguous lots, with improvements. (b) To determine if the property is a urban homestead it must at the time of designation meet the following criteria: 1. Located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision: and 2. Served by police protection, paid volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: Electric Natural gas Sewer Storm sewer Water 14 3. The definition of an urban homestead applies to all homesteads in this state when ever created. RURAL HOMESTEAD
1. Rural Homestead of a family - part of one or more parcels of land not to exceed 200 acres. 2. If head of the family and if married, they have more than 200 acres of land, they may voluntarily designate not more than 200 acres of the property as the homestead. 3. Single person, not otherwise entitled to a homestead, may have part of one or more parcels containing a total of not more than 100 acres of land. 4. If single person has more than 100 acres of land the single person may voluntarily designate not more than 100 acres of the property as the homestead. If an execution is issued against a holder of an interest in land of which a homestead may be a part and judgment debtor has not made a voluntary designation of a homestead the judgment creditor may give the judgment notice to the judgment debtor to designation the homestead and if he doesnt designate the homestead then at any time before 10 am on the Monday next after the expiration of 20 days after the date of service of the notice to designate, the judgment creditor can apply to the court to appoint a Commissioner to designate the homestead for the judgment debtor. If the judgment debtor designates the homestead it must be in writing and signed by the judgment debtor and filed with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated. An officer holding an execution sale of property after the homestead has been designated may sell the excess of the judgment debtors interest not included in the homestead. NOTE: Under Texas law, family, for purposes of exemptions statutes, may include even relationships between adult children and their parents. In re Finkel, Bkrtcy. W.D. Tex.1993, 151B.R. 779. Family, needed to establish homestead exemption, requiring legal or moral responsibility on head of family for rest of members of family, and corresponding dependence on others upon heads of family. NCNB Texas Nat. Bank v. Carpenter. 849 SW 875. See Art. 16, Para. 50 and 51, Texas Constitution 15 VOLUNTARY DESIGNATION OF HOMESTEAD URBAN If an urban homestead of a family is part of one or more contiguous lots containing a total of more than 10 acres, the head of the family and, if married, that persons spouse may voluntarily designate not more than 10 acres of the property as a homestead. The land not designated as a urban homestead is subject to seizure. If an urban homestead of a single, adult person, not otherwise entitled to a homestead, is part of one or more contiguous lots containing a total of more than 10 acres of land may voluntarily designate not more than 10 acres of the property as a homestead. The land not designated as a urban homestead is subject to seizure RURAL If a family, who has a rural homestead that contains a total of more than 200 acres of land, the head of the family, and if married, that persons spouse may voluntarily designate not more than 200 acres of land as a homestead. The land not designated as a rural homestead is subject to seizure. If a single, adult person, who has a rural homestead that contains a total of more than 100 acres of land, and not otherwise entitled to a homestead, may voluntarily designate not more than 100 acres of property as the homestead. The land not designated as a rural homestead is subject to seizure. NOTE - TO PROCESS SERVER If defendant has more land than allowed by the homestead and voluntarily designates the homestead interest you may proceed to seize the land that is not designated as the homestead.
If defendant has more land than allowed by the homestead and refuses to voluntarily designate the homestead interest you should make your return that you are unable to determine what property is not the homestead subject to execution. Plaintiffs attorney may go to the court that issued the writ and ask the court to proceed under Section 41.021, 41.022, 41.023 and 41.024 Texas Property Code and ask the court: 1. To issue a notice to the holder of the land to designate the homestead interest, and if there is no designation of the homestead by the holder of the land the court will appoint a commissioner to make the designation at defendants (judgment debtors) expense. 2. The defendant (judgment debtor) at any time before10 am the Monday next after the expiration of 20 days after the date of 16 service of the notice to designate, the defendant may designate the homestead as defined in 41.002 Texas Property Coded by filing a written designation, signed by the defendant, with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated. 3. If defendant (judgment debtor) who has not made a voluntary designation of a homestead under Section 41.005 or does not designate a homestead as provided in Section 41.022, on motion by the judgment creditor, filed within 90 days after the issuance of the writ of execution, the court from which the writ execution issued shall appoint a commissioner to designate the judgment debtors (defendants) homestead.
4. Officer (Process Server) holding an execution sale of property of a judgment debtor (defendant) whose homestead has been designated under this chapter may sell the excess of land not included in the homestead. EXAMPLES 1. The temporary renting of a homestead does not change the character of the homestead and any rents that are derived therefrom are not protected by the homestead law and are subject to seizure. Texas Commerce Bank Irving v. McCreary, 677 SW 2d 643. 2. Growing crops are protected by the homestead exemption from seizure. After crops are harvested they no longer enjoy the protection of the homestead exemption and are subject to execution. McIntyre v. Oliver Motor Co., 20 SW2d 241. 3. Oil, gas, and other minerals are considered a part of the land and thus exempted from seizure. Once oil, gas or other minerals are taken from the land they loose their protection of the homestead exemption and are subject to seizure. 43 Tex. Juris 3 rd 405. 4. If homestead property is destroyed and there is insurance on this property the proceeds are not subject to seizure until 6 months after the owner had the right to claim the insurance proceeds, unless the lien-holders claim rest on a contractual basis. Home Improvement Loan Co. v. James Brewer, et ux, 318 SW2d 673. 5. A person claiming homestead rights in property pursuant to Tex. Const. Art. XVI Sec. 50 has the burden of proving both overt acts of homestead usage and intent to claim the land as a homestead. First Gibraltar Bank, FSB v. Morales, 115 S. Ct. 204. 6. Homeowners are subject to liens to secure the payment of maintenance assessments provided for in the subdivisions declaration of covenants and restrictions, and an order of foreclosure to collect the sums due would have been proper, where the restrictions were placed on the land before it became the homestead of the parties(the liens having been contracted for several years before the homeowners took possession of their houses), and where the restrictions contained valid contractual liens which ran with the land. Inwood North Homeowners Asso. v. 17 Harris, 736 SW2d 632. 7. Where a bankrupt homeowner sought to exempt both his homestead and the proceeds from the sale of his former homestead under Property Code Sec. 41.001, the proceeds the homeowner received was not entitled to take both exemptions simultaneously because the former homestead loses its homestead character when the owner abandons it by acquiring another homestead and therefore the proceeds from the former homestead are no longer exempt. Re England, 975 F2d 1168. CHAPTER 2 PERSONAL PROPERTY EXEMPTIONS TEXAS PROPERTY CODE
42.001- Personal Property Exemption
(a) Personal property, as described in Section 42.002, is exempt from garnishment attachment,
execution or other seizure if:
(1) the property is provided for a family and has an aggregate fair market value of not more
than $60,000, exclusive of the amount of any liens security interests or other charges
encumbering the property; or (2) the property is owned by a single adult, who is not a member of a family, and has an
aggregate fair market value of not more than $30,000, exclusive of the amount of any liens,
security interests, or other charges encumbering the property. (b) The following personal property is exempt from seizure and is not included in the aggregate
limitations prescribed by Subsection (a):
(1) current wages for personal services, except for the enforcement of court-ordered child
support payments;
(2) professionally prescribed health aids of a debtor or a dependent of a debtor;
(3) alimony, support, or separate maintenance received or to be received by the debtor for the
support of the debtor or a dependent of the debtor;
and (3) a religious bible or other book containing sacred writings of a religion that is seized by a
creditor other than a lessor of real property who is exercising the lessors contractual or
statutory right to seize personal property after a tenant breaches a lease agreement for or
abandons the real property. (c) Except as provided by Subsection (b)(4) this section does not prevent seizure by a secured
creditor with a contractual landlords lien or other security in the property to be seized.
(d) Unpaid commissions for personal services not to exceed 25 percent of the aggregate
limitations prescribed by Subsection (a) are exempt from seizure and are included in the
aggregate. (e) A religious bible or other book described by Subsection (b)(4) that is seized by a lessor of real property in the exercise of the lessors contractual or statutory right to seize personal property after a tenant breaches a lease agreement for the real property or abandons the real property may not be included in the aggregate limitations prescribed by Subsection (a). 18 42.002 - Personal Property (a) The following personal property is exempt under Section 42.001(a): 1. Home furnishings, including family heirlooms; 2. Provisions for consumption; 3. Farming or ranching vehicles and implements; 4. Tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession; 5. Wearing apparel; 6. Jewelry not to exceed 25 percent of the aggregate limitations prescribed by Section 42.001(a); 7. Two firearms; 8. Athletic and sporting equipment, including bicycles; 9. A two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of the family or single adult who holds a drivers license or who does not hold a drivers license but who relies on another person to operate the vehicle for the benefit of the non-licensed person. 10. The following animals and forage on hand for their consumption: A. Two horses, mules, or donkeys and a saddle, blanket, and bridle for each; B. 12 head of cattle; C. 60 head of other types of livestock; and D. 120 fowl and 11. Household pets (b) Personal property, unless precluded from being encumbered by other law, may be encumbered by a security interest under Subchapter B, Chapter 9, Business & Commerce Code, or Subchapter F, Chapter 501, Transportation Code, or by a lien fixed by other law, and the security interest or lien may not be avoided on the ground that the property is exempt under this chapter. 42.0021 - Additional Exemption for Retirement Plan (a) In addition to the exemption prescribed by Section 42.001, a persons right to the assets held in or to receive payments, whether vested or not, under any stock bonus, pension, profit-sharing, or similar plan, including a retirement plan for self-employed individuals, and under any annuity or similar contract purchased with assets distributed from that type of plan, and under any retirement annuity or account described by Section 403(b) or 408A of the Internal Revenue Code of 1986 (USCA), and under any individual retirement account or any individual retirement annuity, including a simplified employee pension plan, and under any health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from attachment, execution, and seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the applicable provisions of the IRS Code 1986. A persons right to the assets held in or to receive payments, whether vested or not, under a government or church plan or contract is also exempt unless the plan or contract does not qualify under the definition of a government or church plan under the applicable provisions of the Federal Employee Retirement Income Security Act of 1974. If this subsection is held invalid or preempted by 19 federal law in whole or in part or in certain circumstances, the subsection remains in effect in all other respects to the maximum extent permitted by law. (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the applicable provisions of the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal revenue code of 1986, are treated as exempt amounts under Subsection (a). In addition, amounts qualifying as nontaxable rollover contributions under Section 402(c), 402(e)(6),402(f), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(10),408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 223(f)(5) of the Internal Revenue Code of 1986 on or after January 1,2004, are treated as exempt amounts under Subsection (a). (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for a creditors claim for 60 days after the date of distribution if the amounts qualify as a nontaxable rollover contribution under Subsection (b). (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a valid and enforceable security interest in the participants or beneficiarys right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive payments from the plan is subject to attachment, execution and seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan. (e) If Subsection (a) is declared invalid or preempted by federal law, in whole or in part or in certain circumstances, as applied to a person who has not brought a proceeding under Title ll, United States Code, the subsection remains in effect, to the maximum extend permitted by law, as to any person who has filed that type of proceeding. (f) A reference in this section to a specific provision of the Internal Revenue Code of 1986 includes a subsequent amendment of the substance of that provision.
42.0022 - Exemption for College Savings Plan (a) In addition to the exemption prescribed by Section 42.001, a persons right to the assets held in or receive payments or benefits under any of the following is exempt from attachment, execution and seizure for the satisfaction of debts: (1) any fund or plan established under Subchapter F, Chapter 54, Education Code, including the persons interest in a prepaid tuition contract; (2) any fund or plan established under Subchapter G, Chapter 54, Education Code, including the persons interest in a saving trust account; or (3) any qualified tuition program of any state that meets the requirements of Section 529, 20 Internal Revenue Code of 1986, as amended. (b) If any portion of this section is held to be invalid or preempted by federal law in whole or in part or in certain circumstances, this section remains in effect in all other respects to the maximum extent permitted by law.
42.003 - Designation of Exempt Property (a) If the number or amount of a type of personal property owned by a debtor exceeds the exemption allowed by Section 42.002 and the debtor can be found in the county where the property is located, the officer making a levy on the property shall ask the debtor to designate the personal property to be levied on. If the debtor cannot be found in the county or the debtor fails to make a designation within a reasonable time after the officers request, the officer shall make the designation. (b) If the aggregate value of a debtors personal property exceeds the amount exempt from seizure under Section 42.001(a), the debtor may designate the portion of the property to be levied on. If, after a courts request, the debtor fails to make a designation within a reasonable time or if for any reason a creditor contests that the property is exempt, the court shall make the designation.
42.004 - Transfer of Nonexempt Property (a) If a person uses the property not exempt under this chapter to acquire, obtain an interest in, make improvements to, or pay an indebtedness on personal property which would be exempt under this chapter with the intent to defraud, delay, or hinder an interested person from obtaining that to which the interested person is or may be entitled, the property, interest, or improvement acquired is not exempt from seizure for the satisfaction of liabilities. If the property, interest, or improvement is acquired by discharging an encumbrance held by a third person, a person defrauded, delayed, or hindered is subrogated to the rights of the third person. (b) A creditor may not assert a claim under this section more than two years after the transaction from which the claim arises. A person with a claim that is unliquidated or contingent at the time of the transaction may not assert a claim under this section more than one year after the claim is reduced to judgment. (c) It is a defense to a claim under this section that the transfer was made in the ordinary course of business by the person making the transfer.
42.005 - Child Support Liens Sections 42.001, 42.002, and 42.0021 of the code do not apply to a child support lien established under Subchapter G, Chapter 157, Family Code. 43.001 - Exempt Public Library Property A public library is exempt from attachment, execution and forced sale. 21 43.002 - Exempt Property - State The real property of the state, including the real property held in the name of state agencies and funds, and the real property of a political subdivision of the state are exempt from attachment, execution and forced sale. A judgment lien or abstract of judgment may not be filed or perfected against the state, a unit of state government, or a political subdivision of the state on property owned by the state, a unit of state government, or a political subdivision of the state; any such judgment lien or abstract of judgment is void and unenforceable.
44.001 -Definition - (Taxation of Retirement Benefits by Another State) In this chapter, pension or other retirement plan includes: 1. An annuity, pension, or profit-sharing or stock bonus or similar plane established to provide retirement benefit for an officer or employee of a public or private employer or for a self-employed individual: 2. An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States: and 3. An individual retirement account.
44.002 - Property Exempt
All property in this state is exempt from attachment, execution, and seizure for the satisfaction of a judgment or claim in favor of another state or political sub-division of another state for failure to pay that states or that political subdivisions income tax on benefits received from a pension or other retirement plan.
44.003 - Lien not Created A claim or judgment in favor of another state or political subdivision of another state for failure to pay that states or that political subdivisions income tax on benefits received from a pension or other retirement plan may not be a lien on any property in this state owned by a resident of this state. SUMMARY ANALYSIS TEXAS PROPERTY CODE PERSONAL PROPERTY EXEMPTIONS When the Texas Property Code refers to the term homestead it is talking about land and land only. When the Texas Property Code refers to the term personal property it is discussing every thing except land such as money, jewelry, car, stock and bonds, golf clubs, chickens, cattle, etc. Personal property is exempt from garnishment, attachment, execution, or other seizure if: 22
1. A family has an aggregate fair market value of not more than $60,000, after deducting the amount of any liens, security interests, or other charges encumbering the property. 2. A single adult, who is not a member of a family, and has an aggregate fair market value of not more than $30,000. After deducting the amount of any liens, security interests, or other charges encumbering the property.
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SHERIFFS ASSOCIATION OF TEXAS Civil Process Manual
This Civil Process Manual was assembled by Tom W. Bullington, Legal-Technical Advisor to the Sheriffs Association of Texas. It is made up of Statutes, Rules, Case law,
Attorney General Opinions and forms used by the Court.
The Sheriffs Association of Texas assumes no liability for the use of this material. Each person, depending on the information set out in this manual, should check with
his/her District or County Attorney to verify that the information set out in this manual is
correct and current law.
It is planned that, from time to time, there will be additional subject matter added to this manual.
Each year after the Legislature meets, if there are material changes, this manual will be updated to reflect the changes made by the Legislature.
If you have questions, please contact our Legal-Technical Advisor at www.txsheriffs.org or at 1-512-445-5888.
i CIVIL PROCESS MANUAL CONTENTS
Concept ...........................................................................................................................................1
General Comments ........................................................................................................................1
Liability of Sheriff/Deputy ............................................................................................................2
Glossary ..........................................................................................................................................5
Chapter 1 HOMESTEAD (Property exempt from creditors claims) .................................9 Interest in land exempt from seizure .......................................................9
Definition of Homestead..........................................................................10
Temporary renting of a Homestead .......................................................10
Abandonment of Homestead...................................................................10
Voluntary Designation of Homestead ....................................................10
Conflict with Federal law ........................................................................12
Designation of a Homestead aid of enforcement of a judgment debt .12 Notice to designate .......................................................................12
Designation by homestead claimant...........................................12
Designation by commissioner .....................................................12
Sale of excess.................................................................................12 Summary Analysis ...................................................................................13
Chapter 2 PERSONAL PROPERTY EXEMPTIONS.......................................................17 Personal Property Exemption.................................................................17
Personal Property ....................................................................................18
Additional exemption for retirement plan.............................................18
Exemption for college savings plan ........................................................19
Designation of exemption property ........................................................20
Transfer of non-exempt property...........................................................20
Child support liens...................................................................................20
Exempt public library property .............................................................20
Exempt property-state.............................................................................21
Taxation of retirement benefits by another state..................................21 Property exempt...........................................................................21
Lien not created ...........................................................................21 Summary Analysis ...................................................................................21
ii Chapter 3 TEXAS RULES OF THE COURT ....................................................................24
I. District and County Court..............................................................................24 General Rules ...........................................................................................24
Computation of Time...............................................................................24
Service of process on Sunday (Excerpts) ...............................................25
Statewide Certification to Serve Civil Process ......................................25
Writs and Process (Style) ........................................................................31
Officer/authorized person shall endorse all process.............................32
Officer to execute process - no fee in advance - exception ...................32
Filing & serving pleadings and motions ................................................32
Methods of service ...................................................................................32 Citation Issuance and form of citation..................................................................33
Form ..........................................................................................................33
Who may serve .........................................................................................33
Duty of officer or person receiving process ...........................................34
Method of service .....................................................................................34
Corporation: President, any Vice President or Registered Agent ....118
Return of service of process ....................................................................35
Examples...................................................................................................35
Defendant without state...........................................................................36
Service of process in foreign countries...................................................36
Citation by publication - Number of times to publish....................36, 37
Service of citation by publication ...........................................................37
Return of citation by publication ...........................................................37
Amendment of any process or service....................................................37 Cost and Security Parties responsible ...................................................................................37
Fee for execution of process in a civil case, demand.............................37
Parties liable for other costs....................................................................37
How Costs Collected ................................................................................38
Officer to levy ...........................................................................................38
Execution for costs ...................................................................................38
II. Rules of practice in Justice Courts Requisites of process................................................................................38
Issuance and form of citation (excerpts)................................................39
Who may serve and method of service...................................................39
Duty of officer or person receiving & return of citation (excerpts) ....40
To enforce judgment - personal property..............................................40
Rules governing - generally same as county/district court ..................40
Summary Analysis ...................................................................................41
iii Chapter 4 COURT COSTS Fees set by commissioners court.............................................................. 46
Service of process for Appellate Court ................................................... 47
Payment of costs incurred for care of certain property ........................ 47
Summary Analysis .................................................................................... 47
Chapter 5 PAPER TRAIL Filing system.............................................................................................. 49
Chapter 6 EXECUTION OF JUDGMENTS
Issuance and Levy of Writ No execution on dormant judgment........................................................ 50
Effect of plaintiffs death.......................................................................... 50
Effect of defendants death ...................................................................... 50
Levy of property conveyed to third party .............................................. 51
Levy of property of surety........................................................................ 51 Recovery of Seized Property Recovery of property before sale............................................................. 51
Recovery of property after sale ............................................................... 51 Sale Sale at place other than courthouse door ............................................... 51
Sale of city lots........................................................................................... 51
Sale of rural property ............................................................................... 52
Stock shares subject to sale ...................................................................... 52
Persons eligible to purchase real property ............................................. 52
Conveyance of title after sale ................................................................... 53
Purchaser considered innocent purchaser without notice .................... 53
Distribution of sale proceeds.................................................................... 53
Purchases by officer void ......................................................................... 54 Duties and Liabilities of Executing Officer Duty toward seized personalty, liability ................................................. 54
Duty of Successor officer.......................................................................... 54
Improper endorsement of Writ ............................................................... 54
Improper return of Writ .......................................................................... 54
Failure to levy or sell ................................................................................ 55
Improper sale ............................................................................................ 55
Failure to deliver money collected........................................................... 55
Rules Governing Actions under this Chapter ........................................ 55
Payment of Damages ................................................................................ 55
Right of Subrogation ................................................................................ 55
Duties of Executing Officer...................................................................... 56
Timing of Execution and Return............................................................. 56
Transfer of Writ, no Duty to Levy Outside of County .......................... 56
Officers Surety ......................................................................................... 56
iv Wrongful Levy .......................................................................................... 57
Exclusive Levy........................................................................................... 57 Enforcement of Judgments of other States Filing and status of foreign judgment ..................................................... 57
Fees ............................................................................................................. 57 Enforcement of Judgments of other Countries Recognition and enforcement .................................................................. 58
Chapter 7 ANCILLARY PROCEEDINGS - WRITS & PROCESS 1.
ATTACHMENT Civil Practice & Remedies Code.............................................................. 58 Attachment lien ............................................................................. 60
Judgment and foreclosure............................................................ 60
Works of fine art ........................................................................... 60
Exemption when en route to or in exhibition ............................. 60
Handling and transportation ....................................................... 61 Texas Rules of the Court .......................................................................... 61 Application for writ of attachment & order (excerpts)............. 61
Writ of Attachment directed to sheriff/constable ...................... 62
Form of Writ ................................................................................. 62
Delivery of Writ ............................................................................ 63
Duty of Officer .............................................................................. 63
Levy - how made ........................................................................... 63
Service of Writ on defendant ....................................................... 63
Defendant may replevy (excerpt) ................................................ 63
Sale of perishable property .......................................................... 64
To protect interest......................................................................... 64
Procedure for sale ......................................................................... 64
Return of sale ................................................................................ 65
Judge may make necessary orders .............................................. 65
Return of Writ............................................................................... 65
Report of disposition of property ................................................ 65
Amendment - Officers return ...................................................... 66
Examples........................................................................................ 66
2. SEQUESTRATION Civil Practice & Remedies Code.............................................................. 68 Grounds ......................................................................................... 68
Pending suit required ................................................................... 68
Available for claim not due .......................................................... 68
Who may issue............................................................................... 68
Required statement of rights - defendant ................................... 68
v Officers liability and duty of care .............................................. 69
Compensation of Officer .............................................................. 69
Indemnification of officer for money spent ................................ 69 Texas Rules of the Court .......................................................................... 70 Requisites of Writ ......................................................................... 70
Amendment of officers return ..................................................... 70
Service of Writ .............................................................................. 70
Defendant may replevy................................................................. 71
Bond for personal property ......................................................... 71
Bond for real estate....................................................................... 71
Return of bond and entry of judgment....................................... 71
Defendant may return sequestered property ............................. 71
Disposition of the property by officer ......................................... 72
Execution ....................................................................................... 72
Plaintiff may replevy .................................................................... 72
When bond forfeited..................................................................... 73
Sale of perishable goods ............................................................... 73
Order of sale for............................................................................ 73
Return of order ............................................................................. 73
Sale on debt not due...................................................................... 73
Purchasers bond .......................................................................... 73
Return of bond .............................................................................. 74
Recovery on bond.......................................................................... 74
Examples........................................................................................ 74 3.
DISTRESS WARRANTS Texas Rules of the Court .......................................................................... 74 Requisites for distress warrant.................................................... 74
Service of distress warrant........................................................... 75
Defendant may replevy................................................................. 75
Dissolution or modification of distress warrant......................... 75
Sale of perishable property .......................................................... 76
Sale to protect interest.................................................................. 76
Procedure for sale ......................................................................... 76
Return of sale ................................................................................ 77
Citation for defendant and return............................................... 77
Petition ........................................................................................... 77
Examples........................................................................................ 77
vi 4. EXECUTIONS Texas Rules of the Court .......................................................................... 78 Enforcement of judgment ............................................................ 78
Execution ....................................................................................... 78
Requisites of execution ................................................................. 78
Execution on judgment for money .............................................. 79
Execution for sale of particular property ................................... 79
Execution for delivery of certain property ................................. 79
Execution for possession or value of personal property............ 79
Execution Superseded................................................................... 79
Stay of Execution in Justice Court .............................................. 79
Indorsement of execution by officer............................................ 80
Levy of Execution.......................................................................... 80
Property not to be designated by the defendant ........................ 80
Levy - real estate - personal property ......................................... 81
Levy on stock running at large .................................................... 81
Levy on shares of stock................................................................. 81
Levy on goods pledged or mortgaged ......................................... 81
Defendant may give delivery bond .............................................. 81
Property may be sold by the defendant ...................................... 81
Forfeited delivery bond ................................................................ 82
Sale of real property ..................................................................... 82
Notice of sale of real estate ........................................................... 82
Courthouse Door defined ......................................................... 83
Sale of personal property ............................................................. 83
Notice of sale of personal property.............................................. 83
When execution not satisfied ....................................................... 83
Resale of property......................................................................... 83
Return of execution....................................................................... 84
Return by Mail .............................................................................. 84
Examples........................................................................................ 84 5.
GARNISHMENT Texas Civil practice and Remedies Code................................................ 84 Grounds for Writ of garnishment ............................................... 85
Who may issue Writ ..................................................................... 85
Effect of service ............................................................................. 85
Current wages exempt.................................................................. 85
Garnishment of funds in inmate trust fund................................ 85
Financial institution as garnishee................................................ 86
Application for Writ of garnishment and order ........................ 86
Bond for garnishment................................................................... 86
vii Case docketed................................................................................ 86
Form of Writ of Garnishment ..................................................... 87
Delivery of Writ ............................................................................ 87
Execution and return of Writ ...................................................... 87
Service of Writ on defendant ....................................................... 87
Defendant may replevy................................................................. 88
Judgment when garnishee is indebted ........................................ 88
Judgment for effects ..................................................................... 89
Refusal to deliver effects............................................................... 89
Sale of effects ................................................................................. 89
Docket and notice.......................................................................... 89
Amendment - officers return ....................................................... 89
Examples........................................................................................ 90
6.
INJUNCTION Texas Rules of the Court .......................................................................... 90 Granting an injunction................................................................. 90
Citation .......................................................................................... 90
Requisites of Writ ......................................................................... 91
Clerk to issue Writ........................................................................ 91
Service and return ........................................................................ 91
Disobedience of injunction ........................................................... 91 Chapter 8 TURNOVER ORDER - JUDGMENTS.............................................................. 93 Passage of Title.......................................................................................... 93
Collection of judgment through court proceeding................................. 93
Authority of court to order turnover of wages....................................... 93
Turnover by financial institution ............................................................ 94
Chapter 9 FORCIBLE ENTRY AND DETAINER ............................................................. 94 Texas Property Code ................................................................................ 94 Forcible entry and detainer ................................................... 94, 98
Forcible detainer ........................................................................... 94
Jurisdiction .................................................................................... 95
Notice to vacate prior to filing eviction suit................................ 95
Writ of Possession ......................................................................... 96
Warehousemans lien ................................................................... 97
Non-lawyer representation........................................................... 98 Texas Rules of the Court .......................................................................... 98 May sue for rent............................................................................ 98
Citation .......................................................................................... 98
Complainant may have possession .............................................. 98
Requisites of Complaint ............................................................... 99
viii Service of citation.......................................................................... 99
Service by delivery to premises.................................................... 99
Docketed ...................................................................................... 100
Demanding jury .......................................................................... 100
Only issue..................................................................................... 100
Representation by agents ........................................................... 100
May appeal .................................................................................. 100
Paupers affidavit........................................................................ 101
Writ of Possession ....................................................................... 101
Lien............................................................................................... 101
Landlord and tenant ................................................................... 101
Chapter 10 FINANCE CODE - JUDGEMENT INTEREST RATES ............................... 102 Interest rate to be charged in judgment ............................................... 102
Judgment interest rate - Interest rate on time price differential in contract and non-contract ..................................................... 102 Publication of judgment interest rate ................................................... 103
Accrual of judgment interest ................................................................. 103
Compounding of judgment interest - post-judgment .......................... 103
Judicial notice of judgment interest rate .............................................. 103
Chapter 11 MANUFACTURED HOME TENANCIES Texas property code (new law - effective 4-1-02)................................. 103 Chapter 12 TAX CODE - DELINQUENT TAX SALES .................................................... 104 Seizure of Personal Property Property subject to seizure..................................................................... 104
Institution of seizure ............................................................................... 104
Tax Warrant............................................................................................ 105
Bond for payment for taxes.................................................................... 105
Tax sales - Notice; Method; Disposition of Proceeds........................... 105 Delinquent Tax Suits Suit to collect delinquent tax.................................................................. 107
Adjudged value........................................................................................ 107
Writ of Possession ................................................................................... 107
Order of Sale, Payment before sale....................................................... 109 Seizure of Real Property Property subject to seizure by municipality......................................... 109
Property subject to seizure by county................................................... 109
Notice........................................................................................................ 110
Institution of seizure ............................................................................... 111
Tax Warrant............................................................................................ 111
Notice of Tax Sale ................................................................................... 112
ix Tax Sales Sale of property....................................................................................... 112
Persons eligible to purchase real property ........................................... 115
Distribution of Proceeds......................................................................... 117 Resale by Taxing Unit Resale by taxing unit............................................................................... 118
Distribution of proceeds of resale.......................................................... 119
Chapter 13 FORMS ................................................................................................................ 120 These are provided sample forms, from the Honorable Tom Lawrence, Justice of the
Peace, Precinct 4, place Two, Harris County, Texas, and the Texas Justice Training
Center Desk Book, used in Civil Process, that are used in Justice Court. This
information is provided so you may become familiar with these papers. You can also get copies of Civil Process Citation and Writs from the District and
County Clerk. The following Sample forms are provided to you as follows: (See pages 122-131) 1. Citation
2. Writ of Execution on Judgment for Money
3. Writ of Attachment
4. Writ of Possession
5. Writ of Garnishment
6. Tenants Writ of Reentry
7. Writ of Sequestration
8. Citation to Defendant in Small Claims Court
9. Writ of Citation - Forcible Detainer 10. Writ of Citation - Small Claims Court
Chapter 14 ATTORNEY GENERAL OPINIONS .............................................................. 132 GA-0140 Execution of tax warrants and property seizure and sale under Chapter 33,
Tax Code.
JM-1046 Commissioners courts may set reasonable fees for services performed by sheriff and
constables in unsuccessful attempts to serve civil process. Chapter 15 CORPORATION ................................................................................................ 121
TOPICAL INDEX ...................................................................................................................... 147 1 CIVIL PROCESS The purpose of this manual is to help identify those civil processes that are used most often by the sheriff or deputy sheriff, setting out the duties assigned to them by the statutes, rules, case law, and attorney general opinions. It is hoped that this material will be helpful to the Sheriff and his Deputies, in carrying out their duties in serving civil process, as well as, and instructor conducting a class in Civil Process. The Texas Commission on Law Enforcement Officers Standards and Education have approved several civil process correspondent courses that an officer might take for credit. If you have an interest in obtaining credit you may contact the Commission at 1-512-936-7700 or their website, www.tcleose.state.tx.us, for further information. CONCEPT Civil Process is like a game. It is difficult, but you must know the rules in order to be confident and successful. For example: If you play baseball, the rules are; 4 balls-you walk; 3 strikes-you are out. By the same token if you are presented with a writ or a process, you follow the rules and do what the court has ordered you to do. You take the court order and apply it to the rules of civil process and proceed. If you dont follow the rules you are out. It cannot be said to often; you must know the rules in order to be successful. Although it takes time to study the statutes, rules, case law, and attorney general opinions it will pay dividend in the long run knowing that you know how to served civil process promptly and properly. GENERAL COMMENTS It should be remembered that before you become involved in serving civil papers several things must happen. (1) The individual or his attorney must file a claim or demand. (2) The court must issue a citation or appropriate civil process addressed to the defendant. (3) The citation or other appropriate civil process must be served on the defendant by the sheriff, constable or other person as designated by the rules of civil procedure and rules of the Supreme Court of Texas. Processing civil process papers is one of the more important duties assigned to the sheriff by law. It requires study and training. The liabilities of the sheriff, or constable, and their deputies in processing civil papers is breathtaking. The processing of civil papers requires knowledge, hard work and dedication. This is not a beginners job or a place for someone who cant perform at other tasks . More than one person in the office should know how to carry out these duties. Service of writs, execution and other processes should be done in a courteous and polite manner. When asked by the person being served what the papers are all about, it is suggested that the process server advise the defendant that he does not know what all the legal ramification are in the papers, and that the defendant might want to discuss this matter with an attorney for a full explanation and advice. If necessary, the process server might explain to the defendant that he is required by law to deliver the papers to him/her. 2 It will never fail that a situation will come up concerning the service of process and you will have no idea how to handle it. Stop, take a deep breath, use common sense and if you cant figure out what to do then call someone for help. This might be your legal advisor, a fellow civil process server from another county, your instructor or your Association. No body has all the answers. It is the duty of the County Attorney, District Attorney or the Criminal District Attorney (legal advisor) to provide legal opinions and advice, in writing if requested, to the sheriff when there are questions concerning their official duties of office. (41.007 - Government Code) If there is any question or concern in serving a particular civil process the sheriff or deputy should contact their legal advisor for direction and clarification as how to proceed and/or plaintiffs attorney. In the event of a law suit against the sheriff/deputy the sheriff should immediately contact his legal advisor an give him the papers served on him. The legal advisor will be representing the sheriff and or his deputies in most instances. (157.901 Local Government Code) LIABILITY OF SHERIFF/DEPUTY CIVIL PRACTICE & REMEDIES CODE
7.001 - Liability for Refusal or Neglect in Performance of Official Duties (a) A clerk, sheriff, or other officer who neglects or refuses to perform a duty required under Title 42, Revised Statutes, or under a provision of this Code derived from that title is liable for damages in a suit brought by a person injured by the officers neglect or refusal. (b) The officer may be punished for contempt of court for neglect or refusal in performance of those duties.
7.002 - Liability for Deposits Pending Suit (Excepts) (a) An officer who has custody of a sum of money, a debt, an instrument, or other property paid to or deposited with a court pending the outcome of a cause of action shall seal the property in a secure package in a safe or bank vault that is accessible and subject to the control of the court. (b) The officer shall keep in his office as part of his records an itemized inventory of property deposited with the court. The inventory must list the disposition of the property and the account for which the property was received. (c) At the expiration of the officers term, the office shall transfer all deposited property and the inventory to the officers successor in office. The successor shall give a receipt for the transferred property and the inventory. (d) - - - - 3 7.003 - Liability Regarding Execution of Writs (a) Except a provided by Section 34.061, an officer is not liable for damages resulting from the execution of a writ issued by a court of this state if the officer: 1. in good faith executes the writ as provided by law and by the Texas Rules of Civil Procedures; and 2. use reasonable diligence in performing his official duties. (b) An office shall execute a writ issued by a court of this state without requiring that bond be posted for the indemnification of the officer.
7.021 - Suit on Official Bonds
Suit may be brought in the name of this state alone on an official bond for the benefit of all the parties entitled to recover on the bond if: 1. the bond is made payable to this state or to an officer of this state; and 2. a recovery on the bond is authorized by or would inure to the benefit of parties other than this state. It is mandated by statute that the sheriff shall execute all process and precepts directed to the sheriff by legal authority and shall return the process or precept to the proper court on or before the date the process or precept is returnable. The writ must be served and returned promptly. (This does not mean that the sheriff is the only person that can serve civil process but only when directed to the sheriff by legal authority. The sheriff commits an offense if the sheriff fails to return a process or precept or makes a false return and is subject to a fine of not more than $100. The sheriff is liable for all damages sustained by a person by reason of an offense committed by the sheriff. (85.021, Local Government Code)
The sheriff is mandated by statute to execute subpoenas and other process directed to the sheriff that are issued by the speaker of the house of representatives, the president of the senate, or the chairman of a committee of either house of the legislature. Failure to execute the subpoena or other process carries the same penalties as failure to execute process issued by the court. (85.022, Local Government Code) Failure to execute all process and precepts received by the sheriff, in a timely manor, may lead to removal from office. (87.011 Local Government Code) It should be remembered that when a sheriff appoints a deputy or a reserved deputy sheriff that the sheriff is responsible for the official acts of his deputy. Thus when a sheriff appoints a deputy to serve civil process, the sheriff is responsible for any mistakes or omissions made by the deputy. (85.03 (d), Local Government Code) It is important that the sheriff/deputies that will be charged with the responsibility of serving civil process attend training seminars annually on civil process, on a regular basis, in order to upgrade their skills and knowledge. In order to be proficient as a civil process server you must know what the statutes, case law, rules and attorney general opinions say about the subject matter. Attorney General opinions 4 may be found on the internet at www.oag.state.tx.us.
You cannot effectively carry out these duties without having access to the statutes, case law, rules, and attorney general opinions. It is suggested that you have the following paper bound statutes, codes and rules, be immediately accessible. in order to be more efficient in carrying out your duties. These books could be purchased by the sheriff through the funds allocated for training. 1. Texas Local Government Code 2. Texas Property Code 3. Texas Civil Practice and Remedies Code 4. Texas Rules of the Court 5. Texas Juris 3d, Vol. 59 - Police, Sheriff, and Constables 6. Access to the Black Statutes and Southwestern reporter, (County law library. See your legal advisor) These paper bound books may be purchased from the West Group. For information on prices or other information - call 1-800 344 5009 or on internet at www.westgroup.com. It is important that you know all of the rules and how to apply them. Once you have become comfortable with understanding the rules you will find that when ever a situation arises in performing the duties you will have more confidence in what you do. Remember you must do what you think is right regardless what the plaintiffs or defendants attorney thinks you should do. It is suggested that if there are questions about the process that you are serving that you contact plaintiffs attorney, as well as, your county legal advisor for their thoughts. The plaintiffs and defendants attorney, as well as, your county legal advisor, are officers of the Court. When in doubt always get the attorney to furnish you something in writing on their stationary or send it to you by fax on their stationary. This way there will be no doubt as to what information and instructions the attorney has given you. The Commission on Law Enforcement Officers Standards and Education will allow credit on all Civil Process courses taken by the peace officer, and passed, if the courses have been approved by the Commission. The sheriff and his deputies may serve civil process if directed to them. You are not a JUDGE OR A LAWYER. It is not your job to question the judgments and orders of the court, unless there appears to be an error, but to follow the orders of the court in a timely manner. It is suggested if you find an error, in the process sent to you, that you talk to the clerk of the court that issued the process and/or the attorney or person that delivered the process to you and discuss your concerns with them. When in doubt never hesitate to ask for help. 5 CIVIL PROCESS GLOSSARY The following are the most common terms used in civil process and definitions of Writs and enforcement document as set out in The Commission on Law Enforcement Officers Standards and Education curriculum and, rather than reinvent the wheel, they are as follows:
ALTERNATIVE SERVICE A METHOD OF DELIVERING TO AN UN- COOPERATIVE DEFENDANT.
ANSWER A DEFENDANTS WRITTEN REPLY TO A PLAINTIFFS PETITION.
APPLICANT A PARTY MAKING APPLICATION TO THE COURT OR PETITIONING THE COURT FOR SOME ACTION.
BENCH WARRANT & CAPIAS A WRIT ISSUED TO AN OFFICER COMMANDING THAT SPECIFIC PERSON BE TAKEN INTO CUSTODY AND BROUGHT BEFORE THE COURT IMMEDIATELY OR AT A SPECIFIC TIME AND PLACE. BENCH WARRANT IS ISSUED BY AND SIGNED BY A JUDGE. CAPIAS IS IN MOTION FORM AND ISSUED BY A CLERK OF THE COMPETENT COURT.
CITATION AN OFFICIAL NOTICE FROM A COURT OF COMPETENT JURISDICTION, ISSUED TO A DEFENDANT AFTER A PLAINTIFFS PETITION IS FILED; THE CITATION COMMANDS THE DEFENDANT TO ANSWER & APPEAR IN COURT AT A SPECIFIC TIME. CONTEMPT PROCEEDINGS HELD TO DETERMINE WHETHER A PERSON HAS VIOLATED A LAWFUL COURT ORDER AND TO SET PUNISHMENT IF VIOLATION IS FOUND. WHERE AN OFFICER REFUSES TO CARRY OUT LAWFULLY IMPOSED DUTIES, REFUSAL IS PUNISHABLE AS A CONTEMPT.
DEFAULT JUDGMENT THE FAILURE TO PERFORM SOME ACTION REQUIRED BY LAW WITHIN THE SPECIFIED TIME. IN A CIVIL LAWSUIT, JUDGMENT BY DEFAULT MAY BE RENDERED AGAINST A PARTY WHO HAS FAILED TO ANSWER OR APPEAR AS DIRECTED. 6
DILIGENCE EFFORT PERSISTENT ACTIVITY, PRUDENCE OR CARE; DILIGENT EFFORT IS THAT WHICH IS PROPERLY EXPECTED FROM A REASONABLE AND PRUDENT PERSON UNDER THE PARTICULAR CIRCUMSTANCES.
INSTANTER IMMEDIATE, NOW OR INSTANTLY.
JUDGMENT THE FINAL ORDER OF A COURT IN A CIVIL SUIT WHICH SETTLES ALL DISPUTED ISSUES, DETERMINES THE RIGHTS OF THE PARTIES WITH REGARDS TO THE SUBJECT MATTER OF THE SUIT, AND WHICH IS SUBJECT TO BEING ENFORCED BY A WRIT.
JURISDICTION THE POWER OF A COURT TO LAWFULLY ACT WITH REGARD TO PERSONS AND PROPERTY.
ORDERS THE DIRECTIONS OF A COURT OR JUDGE: A (ALSO KNOWN AS WRITS) MANDATE OR COMMAND.
PETITION A DOCUMENT FILED BY THE PLAINTIFF WITH THE CLERK OF THE COURT WHICH OUTLINES THE BASIS OF THE COMPLAINT AGAINST THE DEFENDANT AND THE RELIEF BEING SOUGHT FROM THE COURT.
PLAINTIFF A PARTY IN A CIVIL SUIT, MAINLY THE ONE WHO INITIATES THE SUIT BY FILING A PETITION.
PROCESS ALL WRITS AND OFFICIAL DOCUMENTS ISSUED BY COURTS IN CONNECTION WITH PENDING SUITS.
RESPONDENT ALSO KNOWN AS THE DEFENDANT.
RETURN THE ENDORSEMENT MADE BY A SHERIFF OR CONSTABLE UPON PROCESS. WRIT OR NOTICE STATING WHAT HAS BEEN ACCOMPLISHED, AND THE TIME AND MODE OF SERVICE.
SERVICE THE DELIVERY OF A WRIT, NOTICE, 7 INJUNCTION, ETC. BY AN AUTHORIZED PERSON, TO A PERSON WHO IS THEREBY OFFICIALLY NOTIFIED OF SOME PROCEEDING CONCERNING HIM.
SHOW CAUSE A NOTICE TO THE DEFENDANT TO EITHER APPEAR IN COURT OR PREPARE A WRITTEN ANSWER TO SHOW CAUSE FOR FAILING TO RESPOND TO A PREVIOUS ORDER OF THE COURT. MAY ALSO BE KNOWN AS A NOTICE.
STYLE OR FORMAT THE PRESCRIBED STRUCTURE FOR THE CLERKS OF THE COURT TO USE IN DEVELOPING THE PROCESS.
WRIT EXAMPLES OF WRITS: EXECUTION, POSSESSION, GARNISHMENT, SEQUESTRATION, ATTACHMENT, INJUNCTION, ETC. LATIN TERMS
ET AL AND ALL OTHERS
EX PARTE ANY PROCEEDING WHICH IS HELD FOR THE BENEFIT OF, OR ON APPLICATION OF, ONLY ONE PARTY, IN THE ABSENCE OF ONE PARTY.
IN RE IN THE INTEREST OF
NULA BONA NO GOODS OR NO FUNDS
PRO BONO NO FEE, USUALLY WORK PROVIDED BY ATTORNEY AT NO COST.
PRO SE REPRESENTING ONES SELF IN AN ACTION DEFINITIONS OF WRITS AND ENFORCEMENT DOCUMENTS
ABSTRACT OF JUDGMENT A COMPLETE HISTORY IN SHORT, ABBREVIATED FROM OF THE CASE AS FOUND IN THE RECORD, WHICH WHEN FILED WITH THE COUNTY CLERK CREATES A JUDGMENT LIEN OR REAL ESTATE OF 8 THE DEFENDANT.
ATTACHMENT A PROCEDURE OR WRIT WHICH MAY BE USED TO BRING A PERSON OR PROPERTY INTO THE CUSTODY OF THE COURT.
CONTEMPT OF COURT PROCEEDINGS HELD TO DETERMINE WHETHER A PERSON HAS VIOLATED A LAWFUL COURT ORDER AND TO SET PUNISHMENT IF VIOLATION IS FOUND. WHERE AN OFFICER REFUSES TO CARRY OUT LAWFULLY IMPOSED DUTIES, REFUSAL IS PUNISHABLE AS CONTEMPT.
DISTRESS WARRANT A WRIT ISSUED BY A JP COURT DIRECTING THE SEIZURE OF A TENANTS PROPERTY FOR FAILURE TO PAY RENT AS DUE.
EXECUTION A PROCESS AND WRIT ISSUED BY A COURT
ORDER OF SALE TO ENFORCE AND COLLECT MONEY UPON DEMAND ON A JUDGMENT BY THE SEIZURE AND SALE OF NON-EXEMPT PROPERTY. GARNISHMENT A WRIT AND PROCESS DIRECTED TO ONE WHO HAS MONEY OR PROPERTY IN HIS POSSESSION BELONGING TO THE DEFENDANT, ORDERING SUCH THIRD PERSON NOT TO DELIVER OR PAY IT TO THE DEFENDANT BUT TO DELIVER OR HOLD IT FOR PLAINTIFF OR AS DIRECTED BY THE COURT.
INJUNCTION A WRIT ISSUED BY A COURT WHICH DEMANDS OR PROHIBITS SPECIFIED ACTIONS.
POSSESSION A WRIT EMPLOYED TO ENFORCE A JUDG- NOT IN THE EVICTION MENT TO RECOVER POSSESSION OF REAL PROCESS OR PERSONAL PROPERTY.
REENTRY THE ACT BY MEANS OF A WRIT RETURNING THE POSSESSION OF LAND OR TENEMENTS (RENTAL PROPERTY) TO THE TENANT AFTER A LANDLORD HAS WRONGLY LOCKED THE TENANT OUT OF THE PREMISES. 9
RESTRAINING ORDER AN ORDER TO THE DEFENDANT(S) PROHIBITING HIM FROM DOING AN ACT PROHIBITED IN THE ORDER UNTIL A FORMAL HEARING CAN BE CONDUCTED.
SEQUESTRATION AN ORDER DIRECTING THE SHERIFF OR CONSTABLE TO TAKE INTO HIS POSSESSION CERTAIN PROPERTY OF WHICH ANOTHER PERSON HAS POSSESSION UNTIL THE SUIT CAN BE DECIDED OR AS THE COURT DIRECTS. CHAPTER 1 HOMESTEAD PROPERTY EXEMPT FROM CREDITORS CLAIMS TEXAS PROPERTY CODE
41.001 -Interest in Land Exempt from Seizure (a) homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claim of creditors except for encumbrances properly fixed on homestead property. (b) Encumbrances may be properly fixed on homestead property for: 1. Purchase money; 2. Taxes on the property; 3. Work and material used in constructing improvements on the property if contracted for in writing as provided by Sect ions 53.254 (a)(b) and (c); 4. An owelty of partition imposed against the entirety of the property by a court order or by a written agreement of the parties to the partition. Including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding; or 5. The refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses if the homestead is a family homestead, or from the tax debt of the owner. 6. An extension of credit that meets the requirements of Section 50(a)(6), Article XVI, Texas Constitution. 7. A reverse mortgage that meets the requirements of Sections 50(k)-(p), Article XVI, Texas Constitution. (c) The homestead claimants proceeds of a sale of a homestead are not subject to seizure for a creditors claim for six months after the date of sale. 10 41.002 -Definition of Homestead (a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single, adult person, not otherwise entitled to a homestead, shall consist of not more than 10 acres of land which may be in one or more contiguous lots, together with any improvements thereon. (b) If used for the purposes of a rural home, the homestead shall consist of: 1. For a famil</b>y, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or 2. For a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon. (c) A homestead in considered to be urban if at the time the designation is made, the property is: 1. Located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision; and 2. Served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: A. Electric; B. Natural gas; C. Sewer; D. Storm sewer; and E. Water (d) The definition of a homestead as provided in this section applies to all homesteads in this state when ever created. 41.003 - Temporary Renting of a Homestead
Temporary renting of a homestead does not change its homestead character if the homestead claimant has not acquired another homestead.
41.004 - Abandonment of a Homestead If a homestead claimant is married, a homestead cannot be abandoned without the consent of the claimants spouse.
41.005 - Voluntary Designation of Homestead (a) If a rural homestead of a family is part of one or more parcels containing a total of more than 200 acres, the head of the family and, if married, that persons spouse may voluntarily designate not more than 200 acres of the property as the homestead. If a rural homestead of a single adult person, not otherwise entitled to a homestead, is part of one or more parcels containing a total of more than 100 acres, the person may voluntarily designate not more than 100 acres of the property as the homestead. 11 (b) If an urban homestead of a family, or an urban homestead of a single adult person not otherwise entitled to a homestead is part of one or more contiguous lots containing a total of more than 10 acres, the head of the family and, if married, that persons spouse or the single adult person, as applicable, may voluntarily designate not more than 10 acres of the property as the homestead. (c) Except as provided by Subsection (e) or Sub-chapter B, to designate property as a homestead, a person or persons, as applicable, must make the designation in an instrument that is signed and acknowledged or proved in the manner required for the recording of other instruments. The person or persons must file the designation with the county clerk of the county in which all or part of the property is located. The clerk shall record the designation in the county deed records. The designation must contain: (1) a description sufficient to identify the property designated; (2) a statement by the person or persons who executed the instrument that the property is designated as a homestead of the persons family or as the homestead of a single adult person and not otherwise entitled to a homestead; (3) the name of the current record titleholder of the property; and (4) for a rural homestead, the number of acres designated and, if there is more than one survey the number of acres in each. (d) a person or persons, as applicable may change the boundaries of a homestead designated under Sub-section (c) by executing and recording an instrument in the manner required for a voluntary designation under this subsection. A change under this subsection does not impair rights acquired by a party before the change. (e) Except as otherwise provided by this subsection, property on which a person receives an exemption from taxation under Section 11.43, Tax Code, is considered to have been designated as the persons homestead for the purposes of this subchapter if the property is listed as the persons residence homestead on the most recent appraisal roll for the appraisal district established for the county in which the property is located. If a person designates property as a homestead under Subsection (c) or Subchapter B and a different property is considered to have been designated as the persons homestead under this subsection, the designation under Subsection (c) or Subchapter B, as applicable, prevails for purposes of this chapter. (f) If a person or persons, as applicable, have not made a voluntary designation of a homestead under this section as of the time a writ of execution is issued against the person, any designation of the persons or persons homestead must be made in accordance with Subchapter B. (g) An instrument that made a voluntary designation of a homestead in accordance with prior law and that is on file with the county clerk on September 1, 1987, is considered a voluntary designation of a homestead under this section. 12 41.008 - Conflict with Federal Law
To the extent of any conflict between this subchapter and any federal law that imposes an upper limit on the amount, including the monetary amount or acreage amount, of homestead property a person may exempt from seizure, this subchapter prevails to the extent allowed under federal law. DESIGNATION OF A HOMESTEAD IN AID OF ENFORCEMENT OF A JUDGMENT DEBT
41.021 - Notice to Designate If an execution is issued against a holder of an interest in land of which a homestead may be a part and the judgment debtor has not made a voluntary designation of a homestead under Section 41.005, the judgment creditor may give the judgment debtor notice to designate the homestead as defined in Section 41.002. The notice shall state that if the judgment debtor fails to designate the homestead within the time allowed by Section 41.022, the court will appoint a commissioner to make the designation at the expense of the judgment debtor.
41.022 - Designation by Homestead Claimant (Excerpt) At any time before 10 a.m. on the Monday next after the expiration of 20 days after the date of service of the notice to designate, the judgment debtor may designate the homestead as defined in Section 41.002 by filing a written designation, signed by the judgment debtor, with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated.
41.023 - Designation by Commissioner (a) If a judgment debtor who has not make a voluntary designation of a homestead under Section 41.005 does not designate a homestead as provided in Section 41.022, on motion of the judgment creditor, filed within 90 days after the issuance of the writ of execution, the court from which the writ of execution issued shall appoint a commissioner to designate the judgment debtors homestead. - - - - - (b) & (c) - - - -
41.024 - Sale of Excess An officer holding an execution sale of property of a judgment debtor whose homestead had been designated under this chapter may sell the excess of the judgment debtors interest in land not included in the homestead. 13 SUMMARY ANALYSIS HOMESTEAD TEXAS PROPERTY CODE 1. A civil processor cannot seize and sell land nor can he seize and sell one or more lots used for a place of burial of the dead that has been designated as a homestead except for encumbrances expressly fixed on homestead property. Those encumbrances are: (a) Purchase money (b) Taxes on the property (c) Work and material used in constructing improvements on the property, contracted in writing and filed with the county clerk in the county which the property is located. (d) Partition or division due to divorce proceedings
2. Proceeds of sale of homestead are not subject to seizure until six months after the date of sale. HOMESTEAD - DEFINITION URBAN (a) Used as a home and/or both a home and a place to exercise a calling or business. 1. Family or a single, adult person not entitled to a homestead - may have not more than 10 acres of land which may be in one or more contiguous lots, with improvements. (b) To determine if the property is a urban homestead it must at the time of designation meet the following criteria: 1. Located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision: and 2. Served by police protection, paid volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: Electric Natural gas Sewer Storm sewer Water 14 3. The definition of an urban homestead applies to all homesteads in this state when ever created. RURAL HOMESTEAD
1. Rural Homestead of a family - part of one or more parcels of land not to exceed 200 acres. 2. If head of the family and if married, they have more than 200 acres of land, they may voluntarily designate not more than 200 acres of the property as the homestead. 3. Single person, not otherwise entitled to a homestead, may have part of one or more parcels containing a total of not more than 100 acres of land. 4. If single person has more than 100 acres of land the single person may voluntarily designate not more than 100 acres of the property as the homestead. If an execution is issued against a holder of an interest in land of which a homestead may be a part and judgment debtor has not made a voluntary designation of a homestead the judgment creditor may give the judgment notice to the judgment debtor to designation the homestead and if he doesnt designate the homestead then at any time before 10 am on the Monday next after the expiration of 20 days after the date of service of the notice to designate, the judgment creditor can apply to the court to appoint a Commissioner to designate the homestead for the judgment debtor. If the judgment debtor designates the homestead it must be in writing and signed by the judgment debtor and filed with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated. An officer holding an execution sale of property after the homestead has been designated may sell the excess of the judgment debtors interest not included in the homestead. NOTE: Under Texas law, family, for purposes of exemptions statutes, may include even relationships between adult children and their parents. In re Finkel, Bkrtcy. W.D. Tex.1993, 151B.R. 779. Family, needed to establish homestead exemption, requiring legal or moral responsibility on head of family for rest of members of family, and corresponding dependence on others upon heads of family. NCNB Texas Nat. Bank v. Carpenter. 849 SW 875. See Art. 16, Para. 50 and 51, Texas Constitution 15 VOLUNTARY DESIGNATION OF HOMESTEAD URBAN If an urban homestead of a family is part of one or more contiguous lots containing a total of more than 10 acres, the head of the family and, if married, that persons spouse may voluntarily designate not more than 10 acres of the property as a homestead. The land not designated as a urban homestead is subject to seizure. If an urban homestead of a single, adult person, not otherwise entitled to a homestead, is part of one or more contiguous lots containing a total of more than 10 acres of land may voluntarily designate not more than 10 acres of the property as a homestead. The land not designated as a urban homestead is subject to seizure RURAL If a family, who has a rural homestead that contains a total of more than 200 acres of land, the head of the family, and if married, that persons spouse may voluntarily designate not more than 200 acres of land as a homestead. The land not designated as a rural homestead is subject to seizure. If a single, adult person, who has a rural homestead that contains a total of more than 100 acres of land, and not otherwise entitled to a homestead, may voluntarily designate not more than 100 acres of property as the homestead. The land not designated as a rural homestead is subject to seizure. NOTE - TO PROCESS SERVER If defendant has more land than allowed by the homestead and voluntarily designates the homestead interest you may proceed to seize the land that is not designated as the homestead.
If defendant has more land than allowed by the homestead and refuses to voluntarily designate the homestead interest you should make your return that you are unable to determine what property is not the homestead subject to execution. Plaintiffs attorney may go to the court that issued the writ and ask the court to proceed under Section 41.021, 41.022, 41.023 and 41.024 Texas Property Code and ask the court: 1. To issue a notice to the holder of the land to designate the homestead interest, and if there is no designation of the homestead by the holder of the land the court will appoint a commissioner to make the designation at defendants (judgment debtors) expense. 2. The defendant (judgment debtor) at any time before10 am the Monday next after the expiration of 20 days after the date of 16 service of the notice to designate, the defendant may designate the homestead as defined in 41.002 Texas Property Coded by filing a written designation, signed by the defendant, with the justice or clerk of the court from which the writ of execution was issued, together with a plat of the area designated. 3. If defendant (judgment debtor) who has not made a voluntary designation of a homestead under Section 41.005 or does not designate a homestead as provided in Section 41.022, on motion by the judgment creditor, filed within 90 days after the issuance of the writ of execution, the court from which the writ execution issued shall appoint a commissioner to designate the judgment debtors (defendants) homestead.
4. Officer (Process Server) holding an execution sale of property of a judgment debtor (defendant) whose homestead has been designated under this chapter may sell the excess of land not included in the homestead. EXAMPLES 1. The temporary renting of a homestead does not change the character of the homestead and any rents that are derived therefrom are not protected by the homestead law and are subject to seizure. Texas Commerce Bank Irving v. McCreary, 677 SW 2d 643. 2. Growing crops are protected by the homestead exemption from seizure. After crops are harvested they no longer enjoy the protection of the homestead exemption and are subject to execution. McIntyre v. Oliver Motor Co., 20 SW2d 241. 3. Oil, gas, and other minerals are considered a part of the land and thus exempted from seizure. Once oil, gas or other minerals are taken from the land they loose their protection of the homestead exemption and are subject to seizure. 43 Tex. Juris 3 rd 405. 4. If homestead property is destroyed and there is insurance on this property the proceeds are not subject to seizure until 6 months after the owner had the right to claim the insurance proceeds, unless the lien-holders claim rest on a contractual basis. Home Improvement Loan Co. v. James Brewer, et ux, 318 SW2d 673. 5. A person claiming homestead rights in property pursuant to Tex. Const. Art. XVI Sec. 50 has the burden of proving both overt acts of homestead usage and intent to claim the land as a homestead. First Gibraltar Bank, FSB v. Morales, 115 S. Ct. 204. 6. Homeowners are subject to liens to secure the payment of maintenance assessments provided for in the subdivisions declaration of covenants and restrictions, and an order of foreclosure to collect the sums due would have been proper, where the restrictions were placed on the land before it became the homestead of the parties(the liens having been contracted for several years before the homeowners took possession of their houses), and where the restrictions contained valid contractual liens which ran with the land. Inwood North Homeowners Asso. v. 17 Harris, 736 SW2d 632. 7. Where a bankrupt homeowner sought to exempt both his homestead and the proceeds from the sale of his former homestead under Property Code Sec. 41.001, the proceeds the homeowner received was not entitled to take both exemptions simultaneously because the former homestead loses its homestead character when the owner abandons it by acquiring another homestead and therefore the proceeds from the former homestead are no longer exempt. Re England, 975 F2d 1168. CHAPTER 2 PERSONAL PROPERTY EXEMPTIONS TEXAS PROPERTY CODE
42.001- Personal Property Exemption
(a) Personal property, as described in Section 42.002, is exempt from garnishment attachment,
execution or other seizure if:
(1) the property is provided for a family and has an aggregate fair market value of not more
than $60,000, exclusive of the amount of any liens security interests or other charges
encumbering the property; or (2) the property is owned by a single adult, who is not a member of a family, and has an
aggregate fair market value of not more than $30,000, exclusive of the amount of any liens,
security interests, or other charges encumbering the property. (b) The following personal property is exempt from seizure and is not included in the aggregate
limitations prescribed by Subsection (a):
(1) current wages for personal services, except for the enforcement of court-ordered child
support payments;
(2) professionally prescribed health aids of a debtor or a dependent of a debtor;
(3) alimony, support, or separate maintenance received or to be received by the debtor for the
support of the debtor or a dependent of the debtor;
and (3) a religious bible or other book containing sacred writings of a religion that is seized by a
creditor other than a lessor of real property who is exercising the lessors contractual or
statutory right to seize personal property after a tenant breaches a lease agreement for or
abandons the real property. (c) Except as provided by Subsection (b)(4) this section does not prevent seizure by a secured
creditor with a contractual landlords lien or other security in the property to be seized.
(d) Unpaid commissions for personal services not to exceed 25 percent of the aggregate
limitations prescribed by Subsection (a) are exempt from seizure and are included in the
aggregate. (e) A religious bible or other book described by Subsection (b)(4) that is seized by a lessor of real property in the exercise of the lessors contractual or statutory right to seize personal property after a tenant breaches a lease agreement for the real property or abandons the real property may not be included in the aggregate limitations prescribed by Subsection (a). 18 42.002 - Personal Property (a) The following personal property is exempt under Section 42.001(a): 1. Home furnishings, including family heirlooms; 2. Provisions for consumption; 3. Farming or ranching vehicles and implements; 4. Tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession; 5. Wearing apparel; 6. Jewelry not to exceed 25 percent of the aggregate limitations prescribed by Section 42.001(a); 7. Two firearms; 8. Athletic and sporting equipment, including bicycles; 9. A two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of the family or single adult who holds a drivers license or who does not hold a drivers license but who relies on another person to operate the vehicle for the benefit of the non-licensed person. 10. The following animals and forage on hand for their consumption: A. Two horses, mules, or donkeys and a saddle, blanket, and bridle for each; B. 12 head of cattle; C. 60 head of other types of livestock; and D. 120 fowl and 11. Household pets (b) Personal property, unless precluded from being encumbered by other law, may be encumbered by a security interest under Subchapter B, Chapter 9, Business & Commerce Code, or Subchapter F, Chapter 501, Transportation Code, or by a lien fixed by other law, and the security interest or lien may not be avoided on the ground that the property is exempt under this chapter. 42.0021 - Additional Exemption for Retirement Plan (a) In addition to the exemption prescribed by Section 42.001, a persons right to the assets held in or to receive payments, whether vested or not, under any stock bonus, pension, profit-sharing, or similar plan, including a retirement plan for self-employed individuals, and under any annuity or similar contract purchased with assets distributed from that type of plan, and under any retirement annuity or account described by Section 403(b) or 408A of the Internal Revenue Code of 1986 (USCA), and under any individual retirement account or any individual retirement annuity, including a simplified employee pension plan, and under any health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from attachment, execution, and seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the applicable provisions of the IRS Code 1986. A persons right to the assets held in or to receive payments, whether vested or not, under a government or church plan or contract is also exempt unless the plan or contract does not qualify under the definition of a government or church plan under the applicable provisions of the Federal Employee Retirement Income Security Act of 1974. If this subsection is held invalid or preempted by 19 federal law in whole or in part or in certain circumstances, the subsection remains in effect in all other respects to the maximum extent permitted by law. (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the applicable provisions of the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal revenue code of 1986, are treated as exempt amounts under Subsection (a). In addition, amounts qualifying as nontaxable rollover contributions under Section 402(c), 402(e)(6),402(f), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(10),408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 223(f)(5) of the Internal Revenue Code of 1986 on or after January 1,2004, are treated as exempt amounts under Subsection (a). (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for a creditors claim for 60 days after the date of distribution if the amounts qualify as a nontaxable rollover contribution under Subsection (b). (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a valid and enforceable security interest in the participants or beneficiarys right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive payments from the plan is subject to attachment, execution and seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan. (e) If Subsection (a) is declared invalid or preempted by federal law, in whole or in part or in certain circumstances, as applied to a person who has not brought a proceeding under Title ll, United States Code, the subsection remains in effect, to the maximum extend permitted by law, as to any person who has filed that type of proceeding. (f) A reference in this section to a specific provision of the Internal Revenue Code of 1986 includes a subsequent amendment of the substance of that provision.
42.0022 - Exemption for College Savings Plan (a) In addition to the exemption prescribed by Section 42.001, a persons right to the assets held in or receive payments or benefits under any of the following is exempt from attachment, execution and seizure for the satisfaction of debts: (1) any fund or plan established under Subchapter F, Chapter 54, Education Code, including the persons interest in a prepaid tuition contract; (2) any fund or plan established under Subchapter G, Chapter 54, Education Code, including the persons interest in a saving trust account; or (3) any qualified tuition program of any state that meets the requirements of Section 529, 20 Internal Revenue Code of 1986, as amended. (b) If any portion of this section is held to be invalid or preempted by federal law in whole or in part or in certain circumstances, this section remains in effect in all other respects to the maximum extent permitted by law.
42.003 - Designation of Exempt Property (a) If the number or amount of a type of personal property owned by a debtor exceeds the exemption allowed by Section 42.002 and the debtor can be found in the county where the property is located, the officer making a levy on the property shall ask the debtor to designate the personal property to be levied on. If the debtor cannot be found in the county or the debtor fails to make a designation within a reasonable time after the officers request, the officer shall make the designation. (b) If the aggregate value of a debtors personal property exceeds the amount exempt from seizure under Section 42.001(a), the debtor may designate the portion of the property to be levied on. If, after a courts request, the debtor fails to make a designation within a reasonable time or if for any reason a creditor contests that the property is exempt, the court shall make the designation.
42.004 - Transfer of Nonexempt Property (a) If a person uses the property not exempt under this chapter to acquire, obtain an interest in, make improvements to, or pay an indebtedness on personal property which would be exempt under this chapter with the intent to defraud, delay, or hinder an interested person from obtaining that to which the interested person is or may be entitled, the property, interest, or improvement acquired is not exempt from seizure for the satisfaction of liabilities. If the property, interest, or improvement is acquired by discharging an encumbrance held by a third person, a person defrauded, delayed, or hindered is subrogated to the rights of the third person. (b) A creditor may not assert a claim under this section more than two years after the transaction from which the claim arises. A person with a claim that is unliquidated or contingent at the time of the transaction may not assert a claim under this section more than one year after the claim is reduced to judgment. (c) It is a defense to a claim under this section that the transfer was made in the ordinary course of business by the person making the transfer.
42.005 - Child Support Liens Sections 42.001, 42.002, and 42.0021 of the code do not apply to a child support lien established under Subchapter G, Chapter 157, Family Code. 43.001 - Exempt Public Library Property A public library is exempt from attachment, execution and forced sale. 21 43.002 - Exempt Property - State The real property of the state, including the real property held in the name of state agencies and funds, and the real property of a political subdivision of the state are exempt from attachment, execution and forced sale. A judgment lien or abstract of judgment may not be filed or perfected against the state, a unit of state government, or a political subdivision of the state on property owned by the state, a unit of state government, or a political subdivision of the state; any such judgment lien or abstract of judgment is void and unenforceable.
44.001 -Definition - (Taxation of Retirement Benefits by Another State) In this chapter, pension or other retirement plan includes: 1. An annuity, pension, or profit-sharing or stock bonus or similar plane established to provide retirement benefit for an officer or employee of a public or private employer or for a self-employed individual: 2. An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States: and 3. An individual retirement account.
44.002 - Property Exempt
All property in this state is exempt from attachment, execution, and seizure for the satisfaction of a judgment or claim in favor of another state or political sub-division of another state for failure to pay that states or that political subdivisions income tax on benefits received from a pension or other retirement plan.
44.003 - Lien not Created A claim or judgment in favor of another state or political subdivision of another state for failure to pay that states or that political subdivisions income tax on benefits received from a pension or other retirement plan may not be a lien on any property in this state owned by a resident of this state. SUMMARY ANALYSIS TEXAS PROPERTY CODE PERSONAL PROPERTY EXEMPTIONS When the Texas Property Code refers to the term homestead it is talking about land and land only. When the Texas Property Code refers to the term personal property it is discussing every thing except land such as money, jewelry, car, stock and bonds, golf clubs, chickens, cattle, etc. Personal property is exempt from garnishment, attachment, execution, or other seizure if: 22
1. A family has an aggregate fair market value of not more than $60,000, after deducting the amount of any liens, security interests, or other charges encumbering the property. 2. A single adult, who is not a member of a family, and has an aggregate fair market value of not more than $30,000. After deducting the amount of any liens, security interests, or other charges encumbering the property.
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