CHAPTER 34. EXECUTION ON JUDGMENTS
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE C. JUDGMENTS
CHAPTER 34. EXECUTION ON JUDGMENTS
SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT
Sec. 34.001. NO EXECUTION ON DORMANT JUDGMENT. (a) If a writ
of execution is not issued within 10 years after the rendition of
a judgment of a court of record or a justice court, the judgment
is dormant and execution may not be issued on the judgment unless
it is revived.
(b) If a writ of execution is issued within 10 years after
rendition of a judgment but a second writ is not issued within 10
years after issuance of the first writ, the judgment becomes
dormant. A second writ may be issued at any time within 10 years
after issuance of the first writ.
(c) This section does not apply to a judgment for child support
under the Family Code.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
767, Sec. 31, eff. June 19, 2009.
Sec. 34.002. EFFECT OF PLAINTIFF'S DEATH. (a) If a plaintiff
dies after judgment, any writ of execution must be issued in the
name of the plaintiff's legal representative, if any, and in the
name of any other plaintiff. An affidavit of death and a
certificate of appointment of the legal representative, given
under the hand and seal of the clerk of the appointing court,
must be filed with the clerk of the court issuing the writ of
execution.
(b) If a plaintiff dies after judgment and his estate is not
administered, the writ of execution must be issued in the name of
all plaintiffs shown in the judgment. An affidavit showing that
administration of the estate is unnecessary must be filed with
the clerk of the court that rendered judgment. Money collected
under the execution shall be paid into the registry of the court,
and the court shall order the money partitioned and paid to the
parties entitled to it.
(c) Death of a plaintiff after a writ of execution has been
issued does not abate the execution, and the writ shall be levied
and returned as if the plaintiff were living.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.003. EFFECT OF DEFENDANT'S DEATH. The death of the
defendant after a writ of execution is issued stays the execution
proceedings, but any lien acquired by levy of the writ must be
recognized and enforced by the county court in the payment of the
debts of the deceased.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.004. LEVY ON PROPERTY CONVEYED TO THIRD PARTY. Property
that the judgment debtor has sold, mortgaged, or conveyed in
trust may not be seized in execution if the purchaser, mortgagee,
or trustee points out other property of the debtor in the county
that is sufficient to satisfy the execution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.005. LEVY ON PROPERTY OF SURETY. (a) If the face of a
writ of execution or the endorsement of the clerk shows that one
of the persons against whom it is issued is surety for another,
the officer must first levy on the principal's property that is
subject to execution and is located in the county in which the
judgment is rendered.
(b) If property of the principal cannot be found that, in the
opinion of the officer, is sufficient to satisfy the execution,
the officer shall levy first on the principal's property that can
be found and then on as much of the property of the surety as is
necessary to satisfy the execution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
SUBCHAPTER B. RECOVERY OF SEIZED PROPERTY
Sec. 34.021. RECOVERY OF PROPERTY BEFORE SALE. A person is
entitled to recover his property that has been seized through
execution of a writ issued by a court if the judgment on which
execution is issued is reversed or set aside and the property has
not been sold at execution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.022. RECOVERY OF PROPERTY VALUE AFTER SALE. (a) A
person is entitled to recover from the judgment creditor the
market value of the person's property that has been seized
through execution of a writ issued by a court if the judgment on
which execution is issued is reversed or set aside but the
property has been sold at execution.
(b) The amount of recovery is determined by the market value at
the time of sale of the property sold.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
SUBCHAPTER C. SALE
Sec. 34.041. SALE AT PLACE OTHER THAN COURTHOUSE DOOR. If the
public sale of land is required by law to be made at a place
other than the courthouse door, sales under this chapter shall be
made at the place designated by that law.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.042. SALE OF CITY LOTS. If real property taken in
execution consists of several lots, tracts, or parcels in a city
or town, each lot, tract, or parcel must be offered for sale
separately unless not susceptible to separate sale because of the
character of improvements.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.043. SALE OF RURAL PROPERTY. (a) If real property
taken in execution is not located in a city or town, the
defendant in the writ who holds legal or equitable title to the
property may divide the property into lots of not less than 50
acres and designate the order in which those lots shall be sold.
(b) The defendant must present to the executing officer:
(1) a plat of the property as divided and as surveyed by the
county surveyor of the county in which the property is located;
and
(2) field notes of each numbered lot with a certificate of the
county surveyor certifying that the notes are correct.
(c) The defendant must present the plat and field notes to the
executing officer before the sale at a time that will not delay
the sale as advertised.
(d) When a sufficient number of the lots are sold to satisfy the
amount of the execution, the officer shall stop the sale.
(e) The defendant shall pay the expenses of the survey and the
sale, and those expenses do not constitute an additional cost in
the case.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.044. STOCK SHARES SUBJECT TO SALE. Shares of stock in a
corporation or joint-stock company that are owned by a defendant
in execution may be sold on execution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.0445. PERSONS ELIGIBLE TO PURCHASE REAL PROPERTY. (a)
An officer conducting a sale of real property under this
subchapter may not execute or deliver a deed to the purchaser of
the property unless the purchaser exhibits to the officer an
unexpired written statement issued to the person in the manner
prescribed by Section 34.015, Tax Code, showing that the county
assessor-collector of the county in which the sale is conducted
has determined that:
(1) there are no delinquent ad valorem taxes owed by the person
to that county; and
(2) for each school district or municipality having territory in
the county there are no known or reported delinquent ad valorem
taxes owed by the person to that school district or municipality.
(b) An individual may not bid on or purchase the property in the
name of any other individual. An officer conducting a sale under
this subchapter may not execute a deed in the name of or deliver
a deed to any person other than the person who was the successful
bidder.
(c) The deed executed by the officer conducting the sale must
name the successful bidder as the grantee and recite that the
successful bidder exhibited to that officer an unexpired written
statement issued to the person in the manner prescribed by
Section 34.015, Tax Code, showing that the county
assessor-collector of the county in which the sale was conducted
determined that:
(1) there are no delinquent ad valorem taxes owed by the person
to that county; and
(2) for each school district or municipality having territory in
the county there are no known or reported delinquent ad valorem
taxes owed by the person to that school district or municipality.
(d) If a deed contains the recital required by Subsection (c),
it is conclusively presumed that this section was complied with.
(e) A person who knowingly violates this section commits an
offense. An offense under this subsection is a Class B
misdemeanor.
(f) To the extent of a conflict between this section and any
other law, this section controls.
(g) This section applies only to a sale of real property under
this subchapter that is conducted in:
(1) a county with a population of 250,000 or more; or
(2) a county with a population of less than 250,000 in which the
commissioners court by order has adopted the provisions of this
section.
Acts 2003, 78th Leg., ch. 1010, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch.
86, Sec. 1, eff. May 17, 2005.
Sec. 34.045. CONVEYANCE OF TITLE AFTER SALE. (a) When the sale
has been made and its terms complied with, the officer shall
execute and deliver to the purchaser a conveyance of all the
right, title, interest, and claim that the defendant in execution
had in the property sold.
(b) If the purchaser complies with the terms of the sale but
dies before the conveyance is executed, the officer shall execute
the conveyance to the purchaser, and the conveyance has the same
effect as if it had been executed in the purchaser's lifetime.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.046. PURCHASER CONSIDERED INNOCENT PURCHASER WITHOUT
NOTICE. The purchaser of property sold under execution is
considered to be an innocent purchaser without notice if the
purchaser would have been considered an innocent purchaser
without notice had the sale been made voluntarily and in person
by the defendant.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.047. DISTRIBUTION OF SALE PROCEEDS. (a) An officer
shall deliver money collected on execution to the entitled party
at the earliest opportunity.
(b) The officer is entitled to retain from the proceeds of a
sale of personal property an amount equal to the reasonable
expenses incurred by him in making the levy and keeping the
property.
(c) If more money is received from the sale of property than is
sufficient to satisfy the executions held by the officer, the
officer shall immediately pay the surplus to the defendant or the
defendant's agent or attorney.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.048. PURCHASE BY OFFICER VOID. If an officer or his
deputy conducting an execution sale directly or indirectly
purchases the property, the sale is void.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
SUBCHAPTER D. DUTIES AND LIABILITIES OF EXECUTING OFFICER
Sec. 34.061. DUTY TOWARD SEIZED PERSONALTY; LIABILITY. (a) The
officer shall keep securely all personal property on which he has
levied and for which no delivery bond is given.
(b) If an injury or loss to an interested party results from the
negligence of the officer, the officer and his sureties are
liable for the value of the property lost or damaged.
(c) The injured party has the burden to prove:
(1) that the officer took actual possession of the injured
party's property; and
(2) the actual value of any property lost or damaged.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 3, eff. September 1, 2007.
Sec. 34.062. DUTY OF SUCCESSOR OFFICER. If the officer who
receives a writ of execution dies or goes out of office before
the writ is returned, his successor or the officer authorized to
discharge the duties of the office shall proceed in the same
manner as the receiving officer was required to proceed.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 34.063. IMPROPER ENDORSEMENT OF WRIT. (a) If an officer
receives more than one writ of execution on the same day against
the same person and fails to number them as received or if an
officer falsely endorses a writ of execution, the officer and the
officer's sureties are liable to the plaintiff in execution only
for actual damages suffered by the plaintiff because of the
failure or false endorsement.
(b) The plaintiff in execution has the burden to prove:
(1) the officer failed to properly number or endorse the writ of
execution;
(2) the officer's failure precluded the levy of executable
property owned by the judgment debtor;
(3) the executable property owned by the judgment debtor was not
exempt from execution or levy; and
(4) the plaintiff in execution suffered actual damages.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 4, eff. September 1, 2007.
Sec. 34.064. IMPROPER RETURN OF WRIT. (a) An officer may file
an amended or corrected return after the officer has returned a
writ to a court.
(b) Once an officer receives actual notice of an error on a
return or of the officer's failure to file a return, the officer
shall amend the return or file the return not later than the 30th
day after the date of the receipt of notice.
(c) An officer who fails or refuses to amend or file the return
may be subject to contempt under Section 7.001(b).
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 4, eff. September 1, 2007.
Sec. 34.065. FAILURE TO LEVY OR SELL. (a) If an officer fails
or refuses to levy on or sell property subject to execution and
the levy or sale could have taken place, the officer and the
officer's sureties are liable to the party entitled to receive
the money collected on execution only for actual damages
suffered.
(b) The judgment creditor seeking relief under this section has
the burden to prove:
(1) the judgment creditor has a valid judgment against the
judgment debtor;
(2) the writ of execution was issued to the judgment creditor;
(3) the writ was delivered to the officer;
(4) the judgment creditor's judgment was unpaid and unsatisfied;
(5) the property to be levied on was subject to execution;
(6) the officer failed or refused to levy under the writ; and
(7) the amount of actual damages suffered.
(c) Property to be levied on is subject to execution for
purposes of this section if the judgment creditor proves that the
judgment debtor owned the property at issue, the property was
accessible to the officer under the law, the property was
situated in the officer's county, and the property was not exempt
from execution.
(d) Before a court may find that an officer failed or refused to
levy under the writ for purposes of this section, the court must
find that the judgment creditor specifically informed the officer
that the property was owned by the judgment debtor and was
subject to execution and that the creditor directed the officer
to levy on the property.
(e) In this section, "actual damages" is the amount of money the
property would have sold for at a constable or sheriff's auction
minus any costs of sale, commissions, and additional expenses of
execution.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 4, eff. September 1, 2007.
Sec. 34.066. IMPROPER SALE. (a) If an officer sells property
without giving notice as required by the Texas Rules of Civil
Procedure or sells property in a manner other than that
prescribed by this chapter and the Texas Rules of Civil
Procedure, the officer shall be liable only for actual damages
sustained by the injured party.
(b) The injured party has the burden to prove that the sale was
improper and any actual damages suffered.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 4, eff. September 1, 2007.
Sec. 34.067. FAILURE TO DELIVER MONEY COLLECTED. If an officer
fails or refuses to deliver money collected under an execution
when demanded by the person entitled to receive the money, the
officer and the officer's sureties are liable to the person for
the amount collected and for damages at a rate of one percent a
month on that amount if proven by the injured party.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 4, eff. September 1, 2007.
Sec. 34.068. RULES GOVERNING ACTIONS UNDER THIS CHAPTER. (a)
This section applies to any claim for damages brought under
Section 7.001, 34.061, 34.063, 34.065, 34.066, or 34.067 or under
Section 86.023, Local Government Code.
(b) Suit shall be brought in the form of a lawsuit filed against
the officer in the county in which the officer holds office.
(c) All suits must be filed not later than the first anniversary
of the date on which the injury accrues.
(d) An officer or a surety may defend the action by stating and
proving any defenses provided by law, including any defense that
would mitigate damages.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.069. PAYMENT OF DAMAGES. A county, at the discretion of
the commissioners court, may pay any judgment taken against an
officer under Section 7.001, 34.061, 34.063, 34.064, 34.065,
34.066, or 34.067 or under Section 86.023, Local Government Code,
provided that this section does not apply if the officer is
finally convicted under Section 39.02 or 39.03, Penal Code.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.070. RIGHT OF SUBROGATION. An officer against whom a
judgment has been taken under Section 7.001, 7.002, 34.061,
34.063, 34.064, 34.065, 34.066, or 34.067 or under Section
86.023, Local Government Code, or a county that has paid the
judgment on behalf of the officer under Section 34.069, has a
right of subrogation against the debtor or person against whom
the writ was issued.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.071. DUTIES OF EXECUTING OFFICER. An officer receiving
a writ of execution does not have a duty to:
(1) search for property belonging to the judgment debtor;
(2) determine whether property belongs to a judgment debtor;
(3) determine whether property belonging to the judgment debtor
is exempt property that is not subject to levy;
(4) determine the priority of liens asserted against property
subject to execution; or
(5) make multiple levies for cash or multiple levies at the same
location.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.072. TIMING OF EXECUTION AND RETURN. (a) An officer
receiving a writ of execution may return the writ after the first
levy, or attempted levy, if the judgment creditor cannot
designate any more executable property currently owned by the
judgment debtor at the time of the first levy or first attempted
levy.
(b) Notwithstanding Rule 637, Texas Rules of Civil Procedure, an
attempt to levy on property may begin any time during the life of
the writ, provided that the officer shall allow enough time for
completing the sale of the property.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.073. TRANSFER OF WRIT; NO DUTY TO LEVY OUTSIDE OF
COUNTY. (a) An officer receiving a writ may transfer the writ
to another officer in another precinct, or to another law
enforcement agency authorized to perform executions, within the
county of the first officer who received the writ.
(b) An officer does not have a duty to levy on or sell property
not within the officer's county, unless it is real property that
is partially in the officer's county and partially within a
contiguous county.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.074. OFFICER'S SURETY. (a) An officer's surety may
only be liable for the penal sum of the surety bond minus any
amounts already paid out under the bond. In no event may an
officer's surety be liable for more than the penal sum of the
officer's surety bond.
(b) If the officer and the officer's surety are both defendants
in an action brought under this chapter, the surety may deposit
in the court's registry the amount unpaid under the surety bond
and the court shall determine the proper disposition of this sum
or order the return of the deposit to the surety in the court's
final judgment.
(c) A surety is not a necessary party to an action brought under
this chapter or under Section 7.001. Instead, a prevailing party
under these provisions may bring a separate action against a
surety failing to pay the amount remaining under the bond on a
final judgment. This action must be brought on or before 180
days after the date all appeals are exhausted in the underlying
action.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.075. WRONGFUL LEVY. Whenever a distress warrant, writ
of execution, sequestration, attachment, or other like writ is
levied upon personal property, and the property, or any part of
the property, is claimed by any claimant who is not a party to
the writ, the only remedy against a sheriff or constable for
wrongful levy on the property is by trial of right of property
under Part VI, Section 9, Texas Rules of Civil Procedure.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.
Sec. 34.076. EXCLUSIVE REMEDY. This subchapter is the exclusive
remedy for violations of an officer's duties with regard to the
execution and return of writs without regard to the source of the
duty prescribed by law.
Added by Acts 2007, 80th Leg., R.S., Ch.
421, Sec. 5, eff. September 1, 2007.