Law:Title 3. Extraordinary Remedies (Texas)

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Contents

Chapter 61. Attachment

Subchapter A. Availability Of Remedy

Section  61.001.  General Grounds.

A writ of original attachment is available to a plaintiff in a suit if:

(1)  the defendant is justly indebted to the plaintiff;

(2)  the attachment is not sought for the purpose of injuring or harassing the defendant;

(3)  the plaintiff will probably lose his debt unless the writ of attachment is issued; and

(4)  specific grounds for the writ exist under Section 61.002.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.002.  Specific Grounds.

Attachment is available if:

(1)  the defendant is not a resident of this state or is a foreign corporation or is acting as such;

(2)  the defendant is about to move from this state permanently and has refused to pay or secure the debt due the plaintiff;

(3)  the defendant is in hiding so that ordinary process of law cannot be served on him;

(4)  the defendant has hidden or is about to hide his property for the purpose of defrauding his creditors;

(5)  the defendant is about to remove his property from this state without leaving an amount sufficient to pay his debts;

(6)  the defendant is about to remove all or part of his property from the county in which the suit is brought with the intent to defraud his creditors;

(7)  the defendant has disposed of or is about to dispose of all or part of his property with the intent to defraud his creditors;

(8)  the defendant is about to convert all or part of his property into money for the purpose of placing it beyond the reach of his creditors; or

(9)  the defendant owes the plaintiff for property obtained by the defendant under false pretenses.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section 61.0021.  Grounds For Attachment In Suit For Sexual Assault.

(a) Notwithstanding any other provision of this code, attachment is available to a plaintiff who:

(1)  has general grounds for issuance under Sections 61.001(2) and (3); and

(2)  institutes a suit for personal injury arising as a result of conduct that violates:

(A)  Section 22.011(a)(2), Penal Code (sexual assault of a child);

(B)  Section 22.021(a)(1)(B), Penal Code (aggravated sexual assault of a child);

(C)  Section 21.02, Penal Code (continuous sexual abuse of young child or children); or

(D)  Section 21.11, Penal Code (indecency with a child).

(b)  A court may issue a writ of attachment in a suit described by Subsection (a) in an amount the court determines to be appropriate to provide for the counseling and medical needs of the plaintiff.

Added by Acts 2009, 81st Leg., R.S., Ch. 946, Sec. 1, eff. September 1, 2009.



Section  61.003.  Pending Suit Required.

A writ of attachment may be issued in a proper case at the initiation of a suit or at any time during the progress of a suit, but may not be issued before a suit has been instituted.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.004.  Available For Debt Not Due.

A writ of attachment may be issued even though the plaintiff's debt or demand is not due. The proceedings relating to the writ shall be as in other cases, except that final judgment may not be rendered against the defendant until the debt or demand becomes due.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.005.  Certain Torts And Unliquidated Demands.

Nothing in this chapter prevents issuance of a writ of attachment in a suit founded in tort or on an unliquidated demand against an individual, partnership, association, or corporation on whom personal service cannot be obtained in this state.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter B. Issuance

Section  61.021.  Who May Issue.

The judge or clerk of a district or county court or a justice of the peace may issue a writ of original attachment returnable to his court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.022.  Affidavit.

(a) Except as provided by Subsection (a-1), to apply for a writ of attachment, a plaintiff or the plaintiff's agent or attorney must file with the court an affidavit that states:

(1)  general grounds for issuance under Sections 61.001(1), (2), and (3);

(2)  the amount of the demand; and

(3)  specific grounds for issuance under Section 61.002.

(a-1)  To apply for a writ of attachment under Section 61.0021, a plaintiff or the plaintiff's agent or attorney must file with the court an affidavit that states:

(1)  general grounds for issuance under Sections 61.001(2) and (3);

(2)  specific grounds for issuance under Section 61.0021(a); and

(3)  the amount of the demand based on the estimated cost of counseling and medical needs of the plaintiff.

(b)  The affidavit shall be filed with the papers of the case.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 946, Sec. 2, eff. September 1, 2009.



Section  61.023.  Bond.

(a) Before a writ of attachment may be issued, the plaintiff must execute a bond that:

(1)  has two or more good and sufficient sureties;

(2)  is payable to the defendant;

(3)  is in an amount fixed by the judge or justice issuing the writ; and

(4)  is conditioned on the plaintiff prosecuting his suit to effect and paying all damages and costs adjudged against him for wrongful attachment.

(b)  The plaintiff shall deliver the bond to the officer issuing the writ for that officer's approval. The bond shall be filed with the papers of the case.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter C. Levy

Section  61.041.  Subject Property.

A writ of attachment may be levied only on property that by law is subject to levy under a writ of execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.042.  Attachment Of Personalty.

The officer attaching personal property shall retain possession until final judgment unless the property is:

(1)  replevied;

(2)  sold as provided by law; or

(3)  claimed by a third party who posts bond and tries his right to the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.043.  Attachment Of Realty.

(a) To attach real property, the officer levying the writ shall immediately file a copy of the writ and the applicable part of the return with the county clerk of each county in which the property is located.

(b)  If the writ of attachment is quashed or vacated, the court that issued the writ shall send a certified copy of the order to the county clerk of each county in which the property is located.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.044.  Claim On Attached Personalty By Third Party.

A person other than the defendant may claim attached personal property by making an affidavit and giving bond in the manner provided by law for trial of right of property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.045.  Attachment Of Personalty Held By Financial Institution.

Service of a writ of attachment on a financial institution relating to personal property held by the financial institution in the name of or on behalf of a customer of the financial institution is governed by Section 59.008, Finance Code.

Added by Acts 1999, 76th Leg., ch. 344, Sec. 7.003, eff. Sept. 1, 1999.



Subchapter D. Lien

Section  61.061.  Attachment Lien.

Unless quashed or vacated, an executed writ of attachment creates a lien from the date of levy on the real property attached, on the personal property held by the attaching officer, and on the proceeds of any attached personal property that may have been sold.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.062.  Judgment And Foreclosure.

(a) If the plaintiff recovers in the suit, the attachment lien is foreclosed as in the case of other liens. The court shall direct proceeds from personal property previously sold to be applied to the satisfaction of the judgment and the sale of personal property remaining in the hands of the officer and of the real property levied on to satisfy the judgment.

(b)  If the writ of attachment on real property was issued from a county or justice court, the court is not required to enter an order or decree foreclosing the lien, but to preserve the lien the judgment must briefly recite the issuance and levy of the writ. The land may be sold under execution after judgment, and the sale vests in the purchaser all of the estate of the defendant in the land at the time of the levy.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  61.063.  Judgment On Replevied Property.

A judgment against a defendant who has replevied attached personal property shall be against the defendant and his sureties on the replevy bond for the amount of the judgment plus interest and costs or for an amount equal to the value of the replevied property plus interest, according to the terms of the replevy bond.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter E. Works Of Fine Art

Section  61.081.  Exemption When En Route To Or In An Exhibition.

(a) Subject to the limitations of this section, a court may not issue and a person may not serve any process of attachment, execution, sequestration, replevin, or distress or of any kind of seizure, levy, or sale on a work of fine art while it is:

(1)  en route to an exhibition; or

(2)  in the possession of the exhibitor or on display as part of the exhibition.

(b)  The restriction on the issuance and service of process in Subsection (a) applies only for a period that:

(1)  begins on the date that the work of fine art is en route to an exhibition; and

(2)  ends on the earlier of the following dates:

(A)  six months after the date that the work of fine art is en route to the exhibition; or

(B)  the date that the exhibition ends.

(c)  Subsection (a) does not apply to a work of fine art if, at any other time, issuance and service of process in relation to the work has been restricted as provided by Subsection (a).

(d)  Subsection (a) does not apply if theft of the work of art from its owner is alleged and found proven by the court.

(e)  A court shall, in issuing service of process described by Subsection (a), require that the person serving the process give notice to the exhibitor not less than seven days before the date the period under Subsection (b) ends of the person's intent to serve process.

(f)  In this section, "exhibition" means an exhibition:

(1)  held under the auspices or supervision of:

(A)  an organization exempt from federal income tax under Section 501(a), Internal Revenue Code of 1986, as amended, by being listed as an exempt organization in Section 501(c)(3) of the code; or

(B)  a public or private institution of higher education;

(2)  held for a cultural, educational, or charitable purpose; and

(3)  not held for the profit of the exhibitor.

Added by Acts 1999, 76th Leg., ch. 1043, Sec. 1, eff. Aug. 30, 1999.



Section  61.082.  Handling And Transportation.

A court may not issue any process of attachment, execution, sequestration, replevin, or distress or of any kind of seizure, levy, or sale on a work of fine art unless the court requires, as part of the order authorizing the process, that the work of fine art is handled and transported in a manner that complies with the accepted standards of the artistic community for works of fine art, including, if appropriate, measures relating to the maintenance of proper environmental conditions, proper maintenance, security, and insurance coverage.

Added by Acts 1999, 76th Leg., ch. 1043, Sec. 1, eff. Aug. 30, 1999.

Chapter 62. Sequestration

Subchapter A. Availability Of Remedy

Section  62.001.  Grounds.

A writ of sequestration is available to a plaintiff in a suit if:

(1)  the suit is for title or possession of personal property or fixtures or for foreclosure or enforcement of a mortgage, lien, or security interest on personal property or fixtures and a reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county during the suit;

(2)  the suit is for title or possession of real property or for foreclosure or enforcement of a mortgage or lien on real property and a reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will use his possession to injure or ill-treat the property or waste or convert to his own use the timber, rents, fruits, or revenue of the property;

(3)  the suit is for the title or possession of property from which the plaintiff has been ejected by force or violence; or

(4)  the suit is to try the title to real property, to remove a cloud from the title of real property, to foreclose a lien on real property, or to partition real property and the plaintiff makes an oath that one or more of the defendants is a nonresident of this state.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.002.  Pending Suit Required.

A writ of sequestration may be issued at the initiation of a suit or at any time before final judgment.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.003.  Available For Claim Not Due.

A writ of sequestration may be issued for personal property under a mortgage or a lien even though the right of action on the mortgage or lien has not accrued. The proceedings relating to the writ shall be as in other cases, except that final judgment may not be rendered against the defendant until the right of action has accrued.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter B. Issuance

Section  62.021.  Who May Issue.

A district or county court judge or a justice of the peace may issue writs of sequestration returnable to his court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.022.  Application.

The application for a writ of sequestration must be made under oath and must set forth:

(1)  the specific facts stating the nature of the plaintiff's claim;

(2)  the amount in controversy, if any; and

(3)  the facts justifying issuance of the writ.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.023.  Required Statement Of Rights.

(a) A writ of sequestration must prominently display the following statement on the face of the writ:

YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.

(b)  The statement must be printed in 10-point type and in a manner intended to advise a reasonably attentive person of its contents.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter C. Dissolution And Replevy

Section  62.041.  Motion For Dissolution; Stay.

(a) The defendant may seek dissolution of an issued writ of sequestration by filing a written motion with the court.

(b)  The right to seek dissolution is cumulative of the right of replevy.

(c)  The filing of a motion to dissolve stays proceedings under the writ until the issue is determined.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.042.  Hearing On Motion.

Unless the parties agree to an extension, the court shall conduct a hearing on the motion and determine the issue not later than the 10th day after the motion is filed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.043.  Dissolution.

(a) Following the hearing, the writ must be dissolved unless the party who secured its issuance proves the specific facts alleged and the grounds relied on for issuance.

(b)  If the writ is dissolved, the action proceeds as if the writ had not been issued.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.044.  Compulsory Counterclaim For Wrongful Sequestration.

(a) If a writ is dissolved, any action for damages for wrongful sequestration must be brought as a compulsory counterclaim.

(b)  In addition to damages, the party who sought dissolution of the writ may recover reasonable attorney's fees incurred in dissolution of the writ.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.045.  Wrongful Sequestration Of Consumer Goods.

(a) If a writ that sought to sequester consumer goods is dissolved, the defendant or party in possession of the goods is entitled to reasonable attorney's fees and to damages equal to the greater of:

(1)  $100;

(2)  the finance charge contracted for; or

(3)  actual damages.

(b)  Damages may not be awarded for the failure of the plaintiff to prove by a preponderance of the evidence the specific facts alleged if the failure is the result of a bona fide error. For a bona fide error to be available as a defense, the plaintiff must prove the use of reasonable procedures to avoid the error.

(c)  In this section, "consumer goods" has the meaning assigned by the Business & Commerce Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.11, eff. Sept. 1, 1987.



Section  62.046.  Liability For Fruit Of Replevied Property.

(a) In a suit for enforcement of a mortgage or lien on property, a defendant who replevies the property is not required to account for the fruits, hire, revenue, or rent of the property.

(b)  This section does not apply to a plaintiff who replevies the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Subchapter D. Care And Management Of Sequestered Property

Section  62.061.  Officer's Liability And Duty Of Care.

(a) An officer who executes a writ of sequestration shall care for and manage in a prudent manner the sequestered property he retains in custody.

(b)  If the officer entrusts sequestered property to another person, the officer is responsible for the acts of that person relating to the property.

(c)  The officer is liable for injuries to the sequestered property resulting from his neglect or mismanagement or from the neglect or mismanagement of a person to whom he entrusts the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.062.  Compensation Of Officer.

(a) An officer who retains custody of sequestered property is entitled to just compensation and reasonable charges to be determined by the court that issued the writ.

(b)  The officer's compensation and charges shall be taxed and collected as a cost of suit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.



Section  62.063.  Indemnification Of Officer For Money Spent.

If an officer is required to expend money in the security, management, or care of sequestered property, he may retain possession of the property until the money is repaid by the party seeking to replevy the property or by that party's agent or attorney.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


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