Perhaps the most common mechanism for collecting a debt when a judgment has been obtained in Texas is a writ of execution.[1]
When can a Writ of Execution be Issued?
A writ of execution must be issued by the clerk of the court on application by the plaintiff or their attorney.[2] Generally, a writ of execution cannot be issued until thirty days after final judgment is issued.[3] If a motion for new trial or in arrest of judgment is timely filed, the writ of execution may not be issued until thirty days after the order overruling the motion is signed or from the time the motion is overruled by operation of law.[4]
An exception to this waiting period is if the plaintiff, their attorney, or their agent files an affidavit with the court alleging that the defendant is about to remove personal property subject to execution out of the county or is about to transfer or secrete personal property for the purpose of defrauding creditors.[5] The affidavit must state facts supporting these allegations and explain how the person signing the affidavit has personal knowledge of these facts.[6]
If a writ of execution is not issued within 10 years after entry of judgment, the judgment is dormant and execution cannot be issued until it is revived.[7] This can be done by filing a writ of scire facias or by an action of debt brought within two years after the date the judgment becomes dormant.[8]
What Must the Writ of Execution Contain?
The writ must be directed to any sheriff or constable in the State of Texas, be signed by the clerk, bear the seal of the court, describe the judgment, require the officer to execute it according to its terms, and require the officer to return it within thirty, sixty, or ninety days as directed by the plaintiff or their attorney.[9]
Additional requirements apply depending on whether the judgment is for money, the execution for sale of particular property, execution for delivery of certain property, or execution for possession or value of personal property.[10] For example, an execution upon a judgment for money must state the amount due, interest on that amount, and require the officer to satisfy the judgment and costs from the property of the judgment debtor legally subject to execution[11]
How is the Writ of Execution Executed?
The officer receiving the writ notes the exact hour and date when received and proceeds to levy upon the defendant’s nonexempt property located in the county.[12] The officer first attempts to locate the judgment debtor or the judgment debtor’s agent within the county to point out the property to be levied upon first.[13] The judgment debtor cannot point out property that has been sold, mortgaged, conveyed in trust, or that is exempt from forced sale.[14] If no property is designated, the officer levies the execution on any property subject to execution.[15]
What is Replevin?
The judgment debtor can have personal property taken in execution returned if the judgment debtor delivers a bond payable to the judgment creditor with two or more good and sufficient sureties with the condition that the property will be delivered to the levying officer at a specific time and place or that the judgment debtor will pay the officer the fair value of the property.[16] At that point, the judgment debtor can sell the property so long as they pay the officer the stipulated value of the property.[17]
How is Property Taken by Execution Sold?
Real property taken by execution is sold at public auction at the courthouse door of the county, unless the court orders the sale be at the place where the real property is located, on the first Tuesday of the month between 10am and 4pm.[18] The time and place for the sale and the order of sale must be advertised by a notice published in an English-language newspaper in the county for three consecutive weeks before the sale, with the first of these notices required to be published at least twenty days before the day of sale.[19] If there isn’t a newspaper published in the county that will publish the notice, the officer must then post the notice in three public places in the county for at least twenty days successively before the day of sale.[20]
Personal property taken by execution is sold on the premises where it is taken, the county courthouse door, or some other place where—owing to the nature of the property—it is more convenient to exhibit it to purchasers.[21] Notice of the sale of personal property must be posted for ten days prior to the sale at the county courthouse door and at the place where the sale is to be made.[22]
But buyer beware. If the winning bidder fails to comply with the terms of the sale, they have to pay the judgment creditor 20 percent of the value of the property.[23] And, if the property is later sold at auction for less than the first winning bid, the first winning bidder has to pay the judgment debtor the difference.[24] This rule apparently applies regardless of whether the first winning bidder’s failure to comply with the terms of the sale was in good faith.[25]
What About Irregularities in Execution?
Irregularities in an execution sale generally are not enough to set aside the sale.[26]
However, an execution sale will be set aside if there is an irregularity calculated to affect the sale coupled with a grossly inadequate price.[27] There also must be a causal connection between the irregularity and the inadequate sales price—although proof of an irregularity plus grossly inadequate consideration gives rise to a presumption that the irregularity contributed to the low price.[28] A grossly inadequate price is “such a consideration as no sane man would accept, and no fair-minded person would offer, for the property.”[29]
An example of the kind of irregularity that could cause an execution sale to be set aside is lack of proper notice of the sale.[30]
How Is Execution Returned?
The levying officer must make a return of the execution in writing with his official signature stating what the officer did per the requirements of the writ and the law.[31] This return is filed with the clerk of the court.[32]
How to Stay Execution?
Assuming a writ of execution has been validly issued, execution may be stayed if the judgment debtor applies for and the trial court issues a writ of supersedeas.[33] In order to obtain a writ of supersedeas, a judgment debtor must file an agreement with the judgment creditor suspending enforcement of the judgment, file a sufficient bond or cash deposit in lieu of bond with the trial court clerk, or provide alternate security ordered by the court.[34] A sufficient bond, deposit, or security is the lesser of 50 percent of the judgment debtor’s net worth or 25 million dollars.[35]
[1] See Tex. Prac. & Rem. Code § 34.001; Tex. R. Civ. Proc. 621, 627, 634.
[2] Tex. R. Civ. Proc. 627.
[3] Id. 627.
[4] Id.
[5] Id. 628.
[6] See Mercury Sav. Ass’n of Texas v. Fletcher, No. C14-87-00834-CV, 1988 WL 78997, at *2 (Tex. App.—Houston [14th Dist.] July 28, 1988, writ dism’d by agr.) (rejecting an affidavit that contained “a naked, unexplained assertion that appellants were about to go into receivership . . . .”); but see Perfection Casting Corp. v. Aluminum Alloys, Inc., 733 S.W.2d 385 (Tex. App.—San Antonio 1987, no writ) (holding that the sufficiency of the affidavit is irrelevant when the court grants the defendant a hearing to determine whether the writ should be issued).
[7] Tex. Prac. & Rem. Code § 34.001.
[8] Tex. Prac. & Rem. Code § 31.006. “‘Scire facias’ means a judicial writ, founded on some matter of record, such as a judgment or recognizance and requiring the person against whom it is issued to appear and show cause why the party bringing it should not have the advantage of such a record.” Kubosh v. State, 241 S.W.3d 60, 62 n.3 (Tex. Crim. App. 2007) (citing Black’s Law Dictionary 1208 (5th ed. 1984)). The process for obtaining a writ of scire facias to revive a dormant judgment is not explicitly set out in the Texas Rules of Civil Procedure but is generally set out in case law. Clarke v. Frost Nat’l Bank, No. 08-23-00310-CV, 2024 WL 3579325, at *2 (Tex. App.—El Paso July 29, 2024, no pet.) (citing Pharus Funding, LLC v. Solley, No. 06-20-00090-CV, 2021 WL 1680206, at *1 (Tex. App.—Texarkana Apr. 29, 2021, no pet.)). The judgment creditor must first file an application for writ of scire facias. Id. Once the writ of scire facias is issued, it must be served on the judgment debtor pursuant to the rules governing writs and process. Id. The judgment debtor is then required to appear and show cause why the dormant judgment should not be revived. Id. After the judgment debtor has answered or the time for filing answer has expired, the judgment creditor may set a hearing on the application and obtain an order reviving the judgment. Id.
[9] Tex. R. Civ. Proc. 629.
[10] See id. 630-33.
[11] Id. 630.
[12] See id. 636-37.
[13] Id. 637.
[14] Id. 638.
[15] Tex. R. Civ. Proc. 637.
[16] Id. 644.
[17] Id. 645.
[18] Id. 646a.
[19] Id. 647.
[20] Id. 647.
[21] Tex. R. Civ. Proc. 649.
[22] Id. 650.
[23] Id. 652.
[24] Id.
[25] Jackson v. Universal Life Ins. Co., 582 S.W.2d 207, 209 (Tex. Civ. App.—Eastland 1979, writ ref’d n.r.e.).
[26]Rio Delta Land Company v. Johnson, 475 S.W.2d 346, 348 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.).
[27] Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 587 (Tex. App.—Texarkana 2012, no pet.); McCoy v. Rogers, 240 S.W.3d 267, 275 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 827 (Tex. App.—Texarkana 1999, no pet.).
[28] Basley, 373 S.W.3d at 587; McCoy, 240 S.W.3d at 275.
[29] Basley, 373 S.W.3d at 587 n. 14 (quoting Allen v. Pierson, 60 Tex. 604, 606 (Tex.1884))
[30] Rio Delta Land Company, 475 S.W.2d at 348.
[31] Tex. R. Civ. Proc. 654.
[32] Id. 654.
[33] See id. 634; Tex. R. App Proc. 24.1(f).
[34] Tex. R. App. Proc. 24.1(a).
[35] Id. 24.2(a)(1).
