CHAPTER 61. ATTACHMENT
CIVIL PRACTICE AND REMEDIES CODE
TITLE 3. EXTRAORDINARY REMEDIES
CHAPTER 61. ATTACHMENT
SUBCHAPTER A. AVAILABILITY OF REMEDY
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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.