What is a Collateral Attack?

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Judgments can generally be attacked through either a direct or collateral attack.  A collateral attack, as opposed to a direct attack, does not attempt to secure a corrected judgment; rather, it involves an attempt to avoid the effect of the judgment.  A collateral attack, in other words, is an attempt to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes.  Unlike a collateral attack, a direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify or vacate a judgment and must be brought within a definite time period after the judgment’s rendition.

Collateral Attacks and the Finality of Judgments

Collateral attacks on final judgments are generally (though not always) disallowed because it is the policy of the law to give finality to the judgments of the courts.  Thus, as a general matter, only a void judgment can be collaterally attacked.  In Texas, a judgment is void when it is apparent that the court rendering judgment “had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.”

After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally.  And a void judgment can be collaterally attacked at any time.

Collateral Attacks and the Presumption of Validity

In a collateral attack, the judgment under attack is presumed valid.  Extrinsic evidence generally may not be used to establish lack of jurisdiction in a collateral attack on a judgment.  If the record of the underlying proceeding does not affirmatively establish a lack of jurisdiction, the law conclusively presumes the existence of jurisdiction, and a court will not allow evidence outside the record to the contrary.

However, evidence outside the record may be used to collaterally attack a void judgment in cases over which a court does not, under the very law of its creation, have any possible power — e.g. an administration upon the estate of a living person, administration upon the estate of a deceased soldier when prohibited by statute, an administration in bankruptcy upon the estate of a person deceased before the institution of the proceedings, a suit for divorce in a foreign country in which neither of the parties is domiciled, or a suit to recover against a nonresident, upon service by publication, a purely personal judgment.

The Effect of a Collateral Attack

If a collateral attack is successful, the judgment is destroyed only with respect to the particular situation or proceeding in which the attack is made; its validity otherwise is still open to determination.


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