CHAPTER 43. PRINCIPAL AND SURETY
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE C. JUDGMENTS
CHAPTER 43. PRINCIPAL AND SURETY
Sec. 43.001. DEFINITION. In this chapter, "surety" includes:
(1) an endorser, a guarantor, and a drawer of a draft that has
been accepted; and
(2) every other form of suretyship, whether created by express
contract or by operation of law.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.11, eff. April 1, 2009.
Sec. 43.002. SUIT ON ACCRUED RIGHT OF ACTION. (a) When a right
of action accrues on a contract for the payment of money or
performance of an act, a surety on the contract may, by written
notice, require the obligee to without delay bring a suit on the
contract.
(b) A surety who provides notice to an obligee under Subsection
(a) is discharged from all liability on the contract if the
obligee:
(1) is not under a legal disability; and
(2) does not:
(A) bring a suit on the contract during:
(i) the first term of court after receipt of the notice; or
(ii) the second term of court if good cause is shown for the
delay; or
(B) prosecute the suit to judgment and execution.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.11, eff. April 1, 2009.
Sec. 43.003. PRIORITY OF EXECUTION. (a) If a judgment granted
against two or more defendants finds a suretyship relationship
between or among the defendants, the court shall order the
sheriff to levy the execution in the following order:
(1) against the principal's property located in the county where
the judgment was granted;
(2) if the sheriff cannot find enough of the principal's
property in that county to satisfy the execution, against as much
of the principal's property as the sheriff finds; and
(3) against as much of the surety's property as is necessary to
make up the balance of the amount shown in the writ of execution.
(b) The clerk shall note the order to the sheriff on the writ of
execution.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.11, eff. April 1, 2009.
Sec. 43.004. SUBROGATION RIGHTS OF SURETY. (a) A judgment is
not discharged by a surety's payment of the judgment in whole or
part if the payment:
(1) is compelled; or
(2) if made voluntarily, is applied to the judgment because of
the suretyship relationship.
(b) A surety who pays on a judgment as described by Subsection
(a) is subrogated to all of the judgment creditor's rights under
the judgment. A subrogated surety is entitled to execution on
the judgment against:
(1) the principal's property for the amount of the surety's
payment, plus interest and costs; and
(2) if there is more than one surety, both the principal's
property and the property of the cosurety or cosureties for the
amount by which the surety's payment exceeds the surety's
proportionate share of the judgment, plus interest and costs.
(c) A subrogated surety seeking execution on the judgment under
Subsection (b) shall apply for execution to the clerk or court.
The execution shall be levied, collected, and returned as in
other cases.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.11, eff. April 1, 2009.
Sec. 43.005. OFFICER TREATED AS SURETY. (a) An officer has the
rights of a surety provided by Section 43.004 if the officer is
compelled to pay a judgment in whole or part because of the
officer's default.
(b) An officer does not have the rights of a surety provided by
Section 43.004 if the officer:
(1) does not pay over money collected; or
(2) wastes property that is levied on by the officer or is in
the officer's possession.
Added by Acts 2007, 80th Leg., R.S., Ch.
885, Sec. 2.11, eff. April 1, 2009.