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Hello! I Am Artin Derohanian 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. 2 3/13/2018 What we ARE going to talk about ⊸ Already have a judgement (civil or criminal) ⊸ Judgment 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 Law 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. 3 3/13/2018 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 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. Even More Law (still more words) Art. 45.203. cont. (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. 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. 4 3/13/2018 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. Texas, by and through the The City is a proper municipal prosecutor. 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 real property 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 lien 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 5 3/13/2018 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. 6 3/13/2018 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 interests. 7 3/13/2018 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 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. CPRC §31.002 ▫ However, TRCP 621 – Enforcement of Judgments – applies to District, County, and Justice Courts. ▫ …so it appears execution statutes do not include Muni Courts. ⊸ But then again, 45.047 says the judge may execute enforcement in the same manner as a civil suit 8 3/13/2018 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 9 3/13/2018 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 10 3/13/2018 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.
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