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Home , Abstract of judgment

3/13/2018

March 2018

Hello! I am Artin DerOhanian

Lawyer by day.

An Entity’s Failure to Collect Does Not Help Anyone

Why charge, try, and convict, when there will be no collection? Why do all that work? Why piss off your clerks and paralegal?

1 3/13/2018

“A good reputation is more valuable than money.” - Publilius Syrus

COLLECTION TOOLBOX

What are we NOT going to talk about

⊸ Initial decisions to proceed civilly vs. criminally

⊸ Juveniles

⊸ Puppies.

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What we ARE going to talk about

⊸ Already have a judgement (civil or criminal)

⊸ is final ⊸ No writs of attachments

⊸ How do you collect?

Two Aspects To Keep In Mind

⊸ Judicial Power over Person ⊸ Mainly in criminal context

⊸ Judicial Power over Property ▫ We are talking about property today

The

Art. 45.047. CIVIL COLLECTION OF FINES AFTER JUDGMENT. If after a judgment and sentence is entered the defaults in payment of a fine, the or may order the fine and costs collected by execution against the defendant’s property in the same manner as a judgment in a civil suit.

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More Law (bigger, more words)

Art. 45.203. COLLECTION OF FINES, FEES, COSTS, AND SPECIAL EXPENSES. (a) The governing body of each municipality shall by ordinance prescribe rules, not inconsistent with any law of this state, as may be proper to enforce the collection of fines imposed by a municipal . In addition to any other method of enforcement, the municipality may enforce the collection of fines by (1) execution against the property of the defendant; or (2) imprisonment of the defendant.

Even More Law (still more words) Art. 45.203. cont. (b) The governing body of a municipality may adopt such rules and , not inconsistent with any law of this state, concerning the practice and procedure in the municipal court as the governing body may consider proper. (c) The governing body of each municipality may prescribe by ordinance the collection, after due notice, of a special expense, not to exceed $25 for the issuance and service of a warrant of arrest for an offense under Section 38.10, Penal Code, or Section 543.009, Transportation Code. Money collected from the special expense shall be paid into the municipal treasury for the use and benefit of the municipality. (d) Costs may not be imposed or collected in criminal cases in municipal court by municipal ordinance.

Lots of words…What does it mean?

• Collections methods are available.

• You have authority to go after defendant’s property if they default. • Corollary: No need to go after property if no default.

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Nuts and Bolts of Standing

STATE LAW MUNICIPAL LAW Collection of fines and Ordinance and civil costs in criminal matters violations are brought are collected by the State of by the City. , by and through the The City is a proper municipal . party to the collection. The City is not a proper party to a collection, the State is.

Civil Collections of Property

Abstract of Judgment Writ of Execution

When a defendant has Best to use when non-exempt is not property, recording an apparent, but person is abstract of judgment apparent will restrict the sale or transfer of the real property. May take a while.

ABSTRACT OF JUDGMENT Abstract of judgment is a on real property.

⊸ In Texas, no lien is created merely by rendition of a judgment.

⊸ To perfect a judgment lien, you must first obtain an abstract of judgment.

⊸ The abstract of judgment, when properly prepared, recorded and indexed, created a lien on the county – or counties – of recordation against the debtor’s real property and provides notice to subsequent purchasers of the existence of the judgment and lien. TPC §52.001

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ABSTRACT OF JUDGMENT (cont.) Abstract of judgment is a lien on real property. ⊸ However, the judgment lien is not enforceable against exempt real property of the judgment debtor.

⊸ Chapter 52 of the Texas Property Code sets forth the requirements to create a valid judgment lien. THIS ONLY WORKS WHEN THE DEFENDANT HAS NON-EXEMPT REAL PROPERTY

ABSTRACT OF JUDGMENT How To: ⊸ Upon request, the clerk of the court will prepare an abstract of judgment. ⊸ Alternatively, the attorney may prepare his/her own abstract of judgment. ⊸ Technically, the judge can also sign he abstract, but the attorney/prosecutor should first request it. TPC §52.002 ⊸ Reminder: for criminal matters, make sure you list the entitled party as the State of Texas by and through the Municipal Prosecutor. For Civil, make sure you list the City.

ABSTRACT OF JUDGMENT How To: ⊸ Once Abstract of Judgment is issued, it can be recorded and indexed in a county where the defendant has real property.

⊸ EFFECT: The Defendant cannot sell or transfer the real property until the lien is satisfied.

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ABSTRACT OF JUDGMENT How To, the Downside: ⊸ DORMANCY: Once an abstract of judgment is properly recorded, the judgment lien is effective for a period of ten (10) years from the date of its recordation. TPC §52.006. ⊸ A judgment will be considered dormant unless a writ of execution is issued within ten (10) years after rendition of the judgment. CPRC §34.001. ⊸ So, it is essential to keep the judgment lien alive by execution within ten (10) years after the rendition of judgment.

ABSTRACT OF JUDGMENT 10 Years: Keep the Judgment Lien Alive

Writ of Execution

The enforcement document for the final judgment

Best when collection attempts are being made through a person with non-real property .

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WRIT OF EXECUTION Basics: ⊸ The clerk of the court shall issue the Writ of Execution that is addressed to any sheriff or constable with the State of Texas. ⊸ The Writ instructs the sheriff/constable to make a demand for payment and, if it is not paid, to seize any non-exempt property belonging to the Defendant within your county. ⊸ This include any non-exempt property ▫ All kinds of property, not just real property. ⊸ If the Defendant does not have land, then take other stuff.

WRIT OF EXECUTION How To: ⊸ Court issues a writ ⊸ Provides writ to local sheriff or constable ⊸ Sheriff or constable goes to Defendant and will either seize non- exempt property or collect payment ⊸ If non-exempt property is seized, then sheriff or constable will place property up for sale ⊸ Sale proceeds are used to pay judgment ⊸ Officer shall deliver money collected on execution to the entitled party at the earliest opportunity. Tex. Gov. Code §34.047.

WRIT OF EXECUTION Authority and Issues ⊸ A judgment creditor is entitled to aid from a court of appropriate through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property. CPRC §31.002 ▫ However, TRCP 621 – Enforcement of Judgments – applies to District, County, and Justice . ▫ …so it appears execution do not include Muni Courts. ⊸ But then again, 45.047 says the judge may execute enforcement in the same manner as a civil suit

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WRIT OF EXECUTION Authority and Issues ⊸ However again, Gov’t Code §21.001 states all courts have inherent power to enforce its lawful orders, including the authority to issue writs and orders necessary to aid its judgments.

WRIT OF EXECUTION Practical Tips

⊸ Sheriffs and Constables are charged with executing any writs for seizures of property. Most have their own procedures for doing so. Check with them regarding their own requirements and limitations.

⊸ Resource: Sheriff’s Association of Texas. See Civil Process Manuals.

EXEMPT PROPERTY

⊸ Tex. Prop. Code §42.001 – Personal Property Exemption ▫ These are just the basics ⊸ §42.002 – Personal Property Exemptions (Family $100k; Single $50k) ▫ Lots of specific items are listed as exempt ▫ 7. Two firearms.. ▫ 9. A two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of the family or single adult who holds a driver’s license… ▫ 10(A). Two horses, mules, or donkeys.. ▫ 10(B). 12 head of cattle… ⊸ CPRC 31.0025: cannot attach a debtor’s wages

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Can you see the satisfied judgments?

example Phil has no land but has a junkyard with 6 cars in various stages of demolition. Happy City’s prosecutor requests writs of execution be issued (with criminal fines done in the name of the State and Civil done in the name of the City).

Writs are issued.

Sheriff demands payment, and when Phil was arrested for striking an officer, Sheriff seized 4 of the 6 vehicles (2 were exempt).

Sheriff puts the cars up for sale. Within 4 months, provides payment to City.

Arty’s Final Thought

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Artin DerOhanian, Esq. Senior Associate Law Offices of Ryan Henry, PLLC 1380 Pantheon Way, Suite 110 San Antonio, Texas 78232 (210)2457-6357 F: (210)569-6494 [email protected]

Instagram: TexasLaws

11 Appendix Civil Collection of Criminal Matters March 2018

Art. 45.047. CIVIL COLLECTION OF FINES AFTER JUDGMENT. If after a judgment and sentence is entered the defendant defaults in payment of a fine, the justice or judge may order the fine and costs collected by execution against the defendant's property in the same manner as a judgment in a civil suit.

Art. 45.203. COLLECTION OF FINES, COSTS, AND SPECIAL EXPENSES. (a) The governing body of each municipality shall by ordinance prescribe rules, not inconsistent with any law of this state, as may be proper to enforce the collection of fines imposed by a municipal court. In addition to any other method of enforcement, the municipality may enforce the collection of fines by:

(1) execution against the property of the defendant; or

(2) imprisonment of the defendant.

(b) The governing body of a municipality may adopt such rules and regulations, not inconsistent with any law of this state, concerning the practice and procedure in the municipal court as the governing body may consider proper.

(c) The governing body of each municipality may prescribe by ordinance the collection, after due notice, of a special expense, not to exceed $25 for the issuance and service of a warrant of arrest for an offense under Section 38.10, Penal Code, or Section 543.009, Transportation Code. Money collected from the special expense shall be paid into the municipal treasury for the use and benefit of the municipality.

(d) Costs may not be imposed or collected in criminal cases in municipal court by municipal ordinance.

RULE 621. ENFORCEMENT OF JUDGMENT The judgments of the district, county, and justice courts shall be enforced by execution or other appropriate process. Such execution or other process shall be returnable in thirty, sixty, or ninety days as requested by the plaintiff, his agent or attorney.

GOVERNMENT CODE TITLE 2. JUDICIAL BRANCH SUBTITLE A. COURTS CHAPTER 21. GENERAL PROVISIONS

Sec. 21.001. INHERENT POWER AND DUTY OF COURTS. (a) A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.

1 CIVIL PRACTICE AND REMEDIES CODE TITLE 2. , JUDGMENT, AND APPEAL SUBTITLE C. JUDGMENTS CHAPTER 31. JUDGMENTS

Sec. 31.001. PASSAGE OF TITLE. A judgment for the conveyance of real property or the delivery of personal property may pass title to the property without additional action by the party against whom the judgment is rendered.

Sec. 31.002. COLLECTION OF JUDGMENT THROUGH COURT PROCEEDING. (a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities. (b) The court may: (1) order the judgment debtor to turn over nonexempt property that is in the debtor's possession or is subject to the debtor's control, together with all documents or records related to the property, to a designated sheriff or constable for execution; (2) otherwise apply the property to the satisfaction of the judgment; or (3) appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment. (c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience. (d) The judgment creditor may move for the court's assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding. (e) The judgment creditor is entitled to recover reasonable costs, including attorney's fees. (f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any , including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support. (g) With respect to turnover of property held by a financial institution in the name of or on behalf of the judgment debtor as customer of the financial institution, the rights of a receiver appointed under Subsection (b)(3) do not attach until the financial institution receives service of a certified copy of the order of receivership in the manner specified by Section 59.008, Finance Code. (h) A court may enter or enforce an order under this section that requires the turnover of nonexempt property without identifying in the order the specific property subject to turnover.

Sec. 31.0025. AUTHORITY OF COURT TO ORDER TURNOVER OF WAGES. (a) Notwithstanding any other law, a court may not, at any time before a judgment debtor is paid wages for personal services performed by the debtor, enter or enforce an order that requires the debtor or any other person to turn over the wages for the satisfaction of the judgment. (b) This section applies to wages in any form, including paycheck, cash, or property. (c) This section does not apply to the enforcement of a child support obligation or a judgment for past due child support.

Sec. 31.003. JUDGMENT AGAINST PARTNERSHIP. If a suit is against several partners who are jointly indebted under a and citation has been served on at least one but not all of the partners, the court may render judgment against the partnership and against the partners who were actually served, but may not award a personal judgment or execution against any partner who was not served.

Sec. 31.004. EFFECT OF IN LOWER TRIAL COURT. (a) A judgment or a determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court, except that a judgment rendered in a lower trial court is binding on the parties thereto as to recovery or denial of recovery. (b) This section does not apply to a judgment in , guardianship, mental health , or other matter in which a lower trial court has exclusive subject matter jurisdiction on a basis other than the amount in controversy. (c) For the purposes of this section, a "lower trial court" is a small claims court, a court, a county court, or a statutory county court.

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Sec. 31.005. EFFECT OF ADJUDICATION IN SMALL CLAIMS OR JUSTICE OF THE PEACE COURT. A judgment or a determination of fact or law in a proceeding in small claims court or justice of the peace court is not res judicata and does not constitute a basis for estoppel by judgment in a proceeding in a county court or statutory county court, except that the judgment rendered is binding on the parties thereto as to recovery or denial of recovery.

Sec. 31.006. REVIVAL OF JUDGMENT. A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.

Sec. 31.007. PARTIES RESPONSIBLE FOR ACCOUNTING OF OWN COSTS. (a) Each party to a suit shall be responsible for accurately recording all costs and fees incurred during the course of a , if the judgment is to provide for the adjudication of such costs. If the judgment provides that costs are to be borne by the party by whom such costs were incurred, it shall not be necessary for any of the parties to present a record of court costs to the court in connection with the entry of a judgment. (b) A judge of any court may include in any order or judgment all costs, including the following: (1) fees of the clerk and service fees due the county; (2) fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit; (3) masters, interpreters, and guardians ad litem appointed pursuant to these rules and state statutes; and (4) such other costs and fees as may be permitted by these rules and state statutes.

Sec. 31.008. PAYMENT OF UNCLAIMED JUDGMENT. (a) A judgment debtor may pay to the court that rendered the judgment the amount under the judgment owed to a judgment creditor whose location is unknown to the judgment debtor if the judgment debtor complies with Subsections (b) and (c). The payment must be made without offset or reduction for any claims of the judgment debtor. The judgment debtor shall prepare a recordable release of the judgment. The judge or clerk of the court shall execute the release of the judgment on behalf of the creditor and issue the release to the debtor. The release shall recite the cause number, the court, the parties, the date of judgment, the amount of judgment, the amount paid into the court, and the date of the release. (b) Before being entitled to pay a judgment to a court under Subsection (a), the judgment debtor shall send a letter notifying the judgment creditor of the judgment, by registered or certified mail, return receipt requested, to: (1) the judgment creditor's last known address; (2) the address appearing in the judgment creditor's pleadings or other court record, if different from the creditor's last known address; (3) the address of the judgment creditor's last attorney, as shown in the creditor's pleadings or other court record; and (4) the address of the judgment creditor's last attorney, as shown in the records of the State of Texas, if that address is different from the address shown in the creditor's pleadings or other court record. (c) If the judgment creditor does not respond to a notice under Subsection (b) on or before the 15th day after the date on which the notice was sent, the judgment debtor may file an affidavit with the court stating that the judgment debtor has provided the required notice, that the judgment creditor has not responded to the notice, and that the location of the judgment creditor is not known to the judgment debtor. (d) The court shall hold the amount paid to it by the judgment debtor under Subsection (a) and earned on that amount in trust for the judgment creditor. (e) The clerk of the court shall deposit the trust funds and any interest earned by the funds in the clerk's trust fund account. The clerk shall pay the funds and any interest earned by the funds to the judgment creditor or to the successors to the rights of the judgment creditor. The clerk may presume that the funds are payable to the judgment creditor unless the clerk is furnished with a written assignment of the judgment. (f) Funds held in the clerk's trust fund account in accordance with this section are subject to escheat under Chapter 72, Property Code. (g) If the judgment debtor complies with Subsections (b) and (c) and the judgment creditor refuses to accept payment of the amount under the judgment or accepts payment under the judgment and refuses to execute a release of judgment, the court shall set the matter for hearing on a party's motion or on the court's own motion to

3 determine whether or not a release should be filed. On notice and hearing the court may direct the judgment debtor to prepare and file a recordable release of the judgment with the clerk of the court if the court finds that: (1) the amount under the judgment has been paid into the registry of the court; or (2) the judgment creditor has accepted payment under the judgment and refused to execute a release of judgment. (h) In this section: (1) "Judgment creditor" means a party in whose favor a judgment has been rendered, whether a plaintiff, counterclaimant, cross-claimant, third party plaintiff, or other judgment creditor. (2) "Judgment debtor" means a party against whom a judgment is rendered.

Sec. 31.010. TURNOVER BY FINANCIAL INSTITUTION. (a) A financial institution that receives a request to turn over assets or financial information of a judgment debtor to a judgment creditor or a receiver under a turnover order or receivership under Section 31.002 shall be provided and may rely on: (1) a certified copy of the order or injunction of the court; or (2) a certified copy of the order of appointment of a receiver under Section 64.001, including a certified copy of: (A) any document establishing the qualification of the receiver under Section 64.021; (B) the sworn affidavit under Section 64.022; and (C) the bond under Section 64.023. (b) A financial institution that complies with this section is not liable for compliance with a court order, injunction, or receivership authorized by Section 31.002 to: (1) the judgment debtor; (2) a party claiming through the judgment debtor; (3) a co-depositor with the judgment debtor; or (4) a co-borrower with the judgment debtor. (c) A financial institution that complies with this section is entitled to recover reasonable costs, including copying costs, research costs, and, if there is a contest, reasonable attorney's fees. (d) In this section, "financial institution" means a state or national bank, state or federal savings and loan association, state or federal savings bank, state or federal credit union, foreign bank, foreign bank agency, or trust company.

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.

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 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.

4 (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.

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.

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.

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.

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.

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.

SUBCHAPTER C. SALE

Sec. 34.041. SALE AT PLACE OTHER THAN COURTHOUSE DOOR; DATE AND TIME OF SALE. (a) If the public sale of real property is required by court order or other 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 court order or other law. (b) The commissioners court of a county may designate an area other than an area at the county courthouse where public sales of real property under this chapter will take place that is in a public place within a reasonable proximity of the county courthouse as determined by the commissioners court and in a location as accessible to the public as the courthouse door. The commissioners court shall record that designation in the real property records of the county. A designation by a commissioners court under this section is not a ground for challenging or invalidating any sale. Except for a sale under Subsection (a), a sale must be held at an area designated under this subsection if the sale is held on or after the 90th day after the date the designation is recorded. The commissioners court may by order authorize a county official or employee to identify separate locations within the designated area for the conduct of sales under this section and for the conduct of sales by peace officers under other . (c) A sale of real property under this subchapter must take place between 10 a.m. and 4 p.m. on the first Tuesday of a month or, if the first Tuesday of a month occurs on January 1 or July 4, between 10 a.m. and 4 p.m. on the first Wednesday of the month. Notwithstanding Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict with this subsection.

5 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.

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.

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.

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 to the purchaser of the property unless the purchaser exhibits to the officer: (1) 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: (A) there are no delinquent ad valorem taxes owed by the person to that county; and (B) 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; or (2) the written registration statement issued to the person in the manner prescribed by Section 34.011, Tax Code, showing that the person is a registered bidder at the sale at which the property is sold. (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: (1) 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: (A) there are no delinquent ad valorem taxes owed by the person to that county; and (B) 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; or (2) the written registration statement issued to the person in the manner prescribed by Section 34.011, Tax Code, showing that the person is a registered bidder at the sale at which the property is sold. (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.

6 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.

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.

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.

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.

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.

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.

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.

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).

7 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.

Sec. 34.066. IMPROPER SALE. (a) If an officer sells property without giving notice as required by the Texas Rules of 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.

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.

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 that would mitigate damages.

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.

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.

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 asserted against property subject to execution; or

8 (5) make multiple levies for cash or multiple levies at the same location.

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.

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 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.

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 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.

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.

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.

PROPERTY CODE

TITLE 5. EXEMPT PROPERTY AND LIENS

SUBTITLE B. LIEN

CHAPTER 52. JUDGMENT LIEN

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 52.001. ESTABLISHMENT OF LIEN. Except as provided by Section 52.0011 or 52.0012, a first or subsequent abstract of judgment, when it is recorded and indexed in accordance with this chapter, if the judgment is not then dormant, constitutes a lien on and attaches to any real property of the defendant, other than real property exempt from seizure or forced sale under Chapter 41, the Texas , or any other law, that is located in the county in which the abstract is recorded and indexed, including real property acquired after such recording and indexing.

Sec. 52.0011. ESTABLISHMENT OF LIEN PENDING APPEAL OF JUDGMENT. (a) A first or subsequent abstract of a judgment rendered by a court against a defendant, when it is recorded and indexed under this chapter, does not constitute a lien on the real property of the defendant if:

(1) the defendant has posted security as provided by law or is excused by law from posting security; and

9 (2) the court finds that the creation of the lien would not substantially increase the degree to which a judgment creditor's recovery under the judgment would be secured when balanced against the costs to the defendant after the exhaustion of all appellate remedies. A certified copy of the finding of the court must be recorded in the real property records in each county in which the abstract of judgment or a certified copy of the judgment is filed in the abstract of judgment records.

(b) The court may withdraw its finding under Subsection (a)(2) at any time the court determines, from presented to it, that the finding should be withdrawn. The lien exists on withdrawal of the finding and on the filing of a certified copy of the withdrawal of the finding of the court in the real property records in each county in which the abstract of judgment or a certified copy of the judgment is filed in the abstract of judgment records.

Sec. 52.0012. RELEASE OF RECORD OF LIEN ON HOMESTEAD PROPERTY. (a) In this section:

(1) "Homestead" has the meaning assigned by Section 41.002.

(2) "Judgment debtor" and "judgment creditor" have the meanings assigned by Section 31.008(h), Civil Practice and Remedies Code.

(b) A judgment debtor may, at any time, file an affidavit in the real property records of the county in which the judgment debtor's homestead is located that substantially complies with Subsection (f).

(c) Subject to Subsection (d) and except as provided by Subsection (e), an affidavit filed under Subsection (b) serves as a release of record of a judgment lien established under this chapter.

(d) A bona fide purchaser or a mortgagee for value or a successor or assign of a bona fide purchaser or mortgagee for value may rely conclusively on an affidavit filed under Subsection (b) if included with the affidavit is evidence that:

(1) the judgment debtor sent a letter and a copy of the affidavit, without attachments and before execution of the affidavit, notifying the judgment creditor of the affidavit and the judgment debtor's intent to file the affidavit; and

(2) the letter and the affidavit were sent by registered or certified mail, return receipt requested, 30 or more days before the affidavit was filed to:

(A) the judgment creditor's last known address;

(B) the address appearing in the judgment creditor's pleadings in the action in which the judgment was rendered or another court record, if that address is different from the judgment creditor's last known address;

(C) the address of the judgment creditor's last known attorney as shown in those pleadings or another court record; and

(D) the address of the judgment creditor's last known attorney as shown in the records of the State Bar of Texas, if that address is different from the address of the attorney as shown in those pleadings or another court record.

(e) An affidavit filed under Subsection (b) does not serve as release of record of a judgment lien established under this chapter with respect to a purchaser or mortgagee of real property that acquires the purchaser's or mortgagee's interest from the judgment debtor after the judgment creditor files a contradicting affidavit in the real property records of the county in which the real property is located asserting that:

(1) the affidavit filed by the judgment debtor under Subsection (b) is untrue; or

(2) another reason exists as to why the judgment lien attaches to the judgment debtor's property.

(f) An affidavit filed under Subsection (b) must be in substantially the following form:

10 HOMESTEAD AFFIDAVIT AS RELEASE OF JUDGMENT LIEN

Before me, the undersigned authority, on this day personally appeared ______("Affiant(s)") (insert name of one or more affiants) who, being first duly sworn, upon oath states:

(1) My/our name is/are ______(insert name of Affiant(s)). I/we own the following described land ("Land"):

(describe the property claimed as homestead)

(2) This affidavit is made for the purpose of effecting a release of that judgment lien recorded in ______(refer to recording information of judgment lien) ("Judgment Lien") as to the Land.

(3) The Land includes as its purpose use for a home for Affiant(s) and is the homestead of Affiant(s), as homestead is defined in Section 41.002, Property Code. The Land does not exceed:

(A) 10 acres of land, if used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business; or

(B) 200 acres for a family or 100 acres for a single, adult person not otherwise entitled to a homestead, if used for the purposes of a rural home.

(4) Attached to this affidavit is evidence that:

(A) Affiant(s) sent a letter and a copy of this affidavit, without attachments and before execution of the affidavit, notifying the judgment creditor in the Judgment Lien of this affidavit and the Affiant(s)' intent to file for record this affidavit; and

(B) the letter and this affidavit were sent by registered or certified mail, return receipt requested, 30 or more days before this affidavit was filed to:

(i) the judgment creditor's last known address;

(ii) the address appearing in the judgment creditor's pleadings in the action in which the judgment was rendered or another court record, if that address is different from the judgment creditor's last known address;

(iii) the address of the judgment creditor's last known attorney as shown in those pleadings or another court record; and

(iv) the address of the judgment creditor's last known attorney as shown in the records of the State Bar of Texas, if that address is different from the address of the attorney as shown in those pleadings or another court record.

(5) This affidavit serves as a release of the Judgment Lien as to the Land in accordance with Section 52.0012, Property Code.

Signed on this _____ day of ______, _____.

______

______

(Signature of Affiant(s))

State of ______

County of ______

SWORN TO AND SUBSCRIBED before me on the ______day of ______, 20___.

My commission expires:

11 ______

______

Notary Public, State of Texas

Notary's printed name:

______

Sec. 52.002. ISSUANCE OF ABSTRACT. (a) On application of a person in whose favor a judgment is rendered or on application of that person's agent, attorney, or assignee, the judge or justice of the peace who rendered the judgment or the clerk of the court in which the judgment is rendered shall prepare, certify, and deliver to the applicant an abstract of the judgment. The applicant for the abstract must pay the fee authorized by law for providing the abstract.

(b) The attorney of a person in whose favor a judgment is rendered in a small claims court or a justice court or a person in whose favor a judgment is rendered in a court other than a small claims court or a justice court or that person's agent, attorney, or assignee may prepare the abstract of judgment. An abstract of judgment prepared under this subsection must be verified by the person preparing the abstract.

Sec. 52.003. CONTENTS OF ABSTRACT. (a) An abstract of a judgment must show:

(1) the names of the plaintiff and defendant;

(2) the birthdate of the defendant, if available to the clerk or justice;

(3) the last three numbers of the driver's license of the defendant, if available;

(4) the last three numbers of the social security number of the defendant, if available;

(5) the number of the suit in which the judgment was rendered;

(6) the defendant's address, or if the address is not shown in the suit, the nature of citation and the date and place of service of citation;

(7) the date on which the judgment was rendered;

(8) the amount for which the judgment was rendered and the balance due;

(9) the amount of the balance due, if any, for child support arrearage; and

(10) the rate of interest specified in the judgment.

(b) An abstract of a judgment may show a mailing address for each plaintiff or judgment creditor.

Sec. 52.004. RECORDING AND INDEXING OF ABSTRACT. (a) The county clerk shall immediately record in the county real property records each properly authenticated abstract of judgment that is presented for recording. The clerk shall note in the records the date and hour an abstract of judgment is received.

(b) At the same time an abstract is recorded, the county clerk shall enter the abstract on the alphabetical index to the real property records, showing:

(1) the name of each plaintiff in the judgment;

(2) the name of each defendant in the judgment; and

12 (3) the volume and page or instrument number in the records in which the abstract is recorded.

Sec. 52.0041. ADDRESS REQUIREMENT FOR RECORDING ABSTRACT. (a) A judgment abstracted after September 1, 1993, may not be recorded unless:

(1) a mailing address for each plaintiff or judgment creditor appears on the abstract of judgment; or

(2) a penalty filing fee equal to the greater of $25 or twice the statutory recording fee for the abstract is paid.

(b) The validity of an abstracted judgment as between the parties is not affected by a failure to include an address for each plaintiff or judgment creditor in the abstracted judgment.

(c) Payment of a filing fee and acceptance of the abstract of judgment by a county clerk for recording creates a conclusive presumption that the requirements of this section have been met.

Sec. 52.005. SATISFACTION OF JUDGMENT. Satisfaction of a judgment in whole or in part may be shown by recordation of:

(1) a return on an execution issued on the judgment, or a copy of the return, certified by the officer making the return and showing:

(A) the names of the parties to the judgment;

(B) the number and style of the suit;

(C) the court in which the judgment was rendered;

(D) the date and amount of the judgment; and

(E) the dates of issuance and return of the execution; or

(2) a receipt, acknowledgement, or release that is signed by the party entitled to receive payment of the judgment or by that person's agent or attorney of record and that is acknowledged or proven for record in the manner required for .

Sec. 52.006. DURATION OF LIEN. (a) Except as provided by Subsection (b), a judgment lien continues for 10 years following the date of recording and indexing the abstract, except that if the judgment becomes dormant during that period the lien ceases to exist.

(b) Notwithstanding Section 34.001, Civil Practice and Remedies Code, a judgment in favor of the state or a state agency, as that term is defined by Section 403.055, Government Code, does not become dormant. A properly filed abstract of the judgment continues to constitute a lien under Section 52.001 until the earlier of the 20th anniversary of the date the abstract is recorded and indexed or the date the judgment is satisfied or the lien is released. The judgment lien may be renewed for one additional 20-year period by filing, before the expiration of the initial 20-year period, a renewed abstract of judgment in the same manner as the original abstract of judgment is filed. The renewed judgment lien relates back to the date the original abstract of judgment was filed.

Sec. 52.007. FEDERAL COURT JUDGMENT. An abstract of a judgment rendered in this state by a federal court may be recorded and indexed under this chapter on the certificate of the clerk of the court.

SUBCHAPTER B. CANCELLATION OF JUDGMENTS AND JUDGMENT LIENS AGAINST BANKRUPTS-- ABSTRACT RECORDED BEFORE SEPTEMBER 1, 1993

13 Sec. 52.021. DISCHARGE AND CANCELLATION. (a) In accordance with this subchapter, a judgment and judgment lien may be discharged and canceled if the person against whom the judgment was rendered is discharged from his debts under federal law.

(b) This subchapter applies to judgments against persons whose debts are discharged in bankruptcy and for which the abstracts of judgment are recorded before September 1, 1993, as provided by Subchapter A, regardless of the fact that the discharge in bankruptcy occurred before this law took effect.

Sec. 52.022. APPLICATION FOR COURT ORDER. (a) The person who has been discharged from his debts, that person's receiver or trustee, or any other interested person may apply, on proof of the discharge, to the court in which the judgment was rendered for an order discharging and canceling the judgment and judgment lien.

(b) A person may not apply for the order before a year has elapsed since the bankruptcy discharge.

Sec. 52.023. NOTICE OF APPLICATION. (a) Notice of the application for the order and copies of the papers on which application is made must be served on the judgment creditor or his attorney of record in the action in which the judgment was rendered.

(b) If the residence or place of business of the judgment creditor or his attorney is known, notice must be served in the manner prescribed for service of notice in an action.

(c) As an alternative to service under Subsection (b), the court may order that notice of the application be published in a newspaper designated in the order once a week for not more than three consecutive weeks if the applicant proves by affidavit that:

(1) the address of neither the judgment creditor nor his attorney is known and the address of neither can be ascertained by due diligence; or

(2) the judgment creditor is not a resident of this state and his attorney is dead, removed from the state, or unknown.

Sec. 52.024. COURT ORDER. (a) The court shall conduct a hearing on the application and shall enter an order of discharge and cancellation of the judgment and any abstracts of the judgment if the debtor or bankrupt has been discharged in bankruptcy from the payment of the obligation or debt represented by the judgment.

(b) In each county in which the court's order is recorded in the judgment lien records, the order constitutes a release, discharge, and cancellation of the judgment and of any unsatisfied judgment lien represented by an abstract that is of record in the county on the date of the order or is recorded in the county on or after the date of the order.

Sec. 52.025. EFFECT ON LIEN OF DISCHARGE OF DEBT IN BANKRUPTCY. (a) A judgment lien is not affected by the order of discharge and cancellation and may be enforced, if the lien is against real property owned by the bankrupt or debtor before the debtor was adjudged bankrupt or a petition for debtor relief was filed under federal bankruptcy law, and:

(1) the debt or obligation evidenced by the judgment is not discharged in bankruptcy; or

(2) the property is nonexempt and is abandoned during the course of the proceeding.

(b) Except as provided by Subsection (a), the judgment is of no force or validity and may not be a lien on real property acquired by the bankrupt or debtor after the discharge in bankruptcy.

SUBCHAPTER C. CANCELLATION OF JUDGMENTS AND JUDGMENT LIENS AGAINST DEBTORS-- ABSTRACT RECORDED ON OR AFTER SEPTEMBER 1, 1993

Sec. 52.041. APPLICATION OF SUBCHAPTER. This subchapter applies to a judgment and judgment lien for which an abstract of judgment or judgment lien is recorded on or after September 1, 1993.

14 Sec. 52.042. DISCHARGE AND CANCELLATION. (a) A judgment is discharged and any abstract of judgment or judgment lien is canceled and released without further action in any court and may not be enforced if:

(1) the lien is against real property owned by the debtor before a petition for debtor relief was filed under federal bankruptcy law; and

(2) the debt or obligation evidenced by the judgment is discharged in the bankruptcy.

(b) A judgment evidencing a debt or obligation discharged in bankruptcy does not have force or validity and may not be a lien on real property acquired by the debtor after the petition for debtor relief was filed.

Sec. 52.043. EXCEPTIONS TO DISCHARGE AND CANCELLATION. A judgment lien is not affected by this subchapter and may be enforced if the lien is against real property owned by the debtor before a petition for debtor relief was filed under federal bankruptcy law and:

(1) the debt or obligation evidenced by the judgment is not discharged in bankruptcy; or

(2) the property is not exempted in the bankruptcy and is abandoned during the bankruptcy.

15