A writ of execution to enforce a judgment in Texas can be a terrifying experience for a judgment debtor. Nevertheless, as a judgment debtor you need to understand that just because a writ of execution is served on you does not mean that everything has been done properly and lawfully. Allow me to explain just what I mean.
What Is a Writ of Execution in Texas?
A lot of people outside the judgment recovery business in Texas could very well get confused when there is talk of a writ of execution. To some degree, it looks as though it might possibly have something to do with criminal law and the execution of death row inmates. I suppose that is actually an understandable area of confusion when in take into account that Texas does follow through on its death penalty. But, the writ of execution under discussion has absolutely nothing at all to do with criminal law.
The writ of execution I am describing is simply a court order directing that a court judgment from a justice court, county court, or district court be enforced. See Tex. R. Civ. P. 621. If you are a judgment debtor in Texas it is very important for you to recognize that the writ will typically direct the sheriff to confiscate your nonexempt property, sell it, and deliver the profits of the sale to the judgment creditor for payment on the judgment you owe. See Tex. R. Civ. P. 637. The seizing of your property is the enforcement of the judgment.
What Is a Wrongful Writ of Execution in Texas?
Just because a writ of execution is issued and given to the sheriff to levy on your property does not mean that anything the judgment creditor, his attorney or the sheriff do from that point forward is appropriate. In the course of the execution of the writ, it is possible that the actions of the different players in the process could “cross the line” and be a wrongful writ of execution. If that happens, you are then in a position to take the parties back into court on a claim for wrongful execution.
Some of the most common things you, as a judgment debtor, must look out for are:
1. Any kind of effort by your judgment creditor to have a writ of execution sent out and levy attempted on a judgment that you have already paid in full;
2. Any kind of attempt by the constable to take possession of property that is exempt from execution under Texas law.
3. Any type of effort by the constable to seize property that is not actually your property.
4. Any kind of attempt by your judgment creditor to have a writ of execution issued and levy sought when you have filed an appeal of the judgment together with a supersedeas bond.
These four examples are not the only ones that can occur and open the possibility of a claim for wrongful execution; they are merely the most common.
What Are the Consequences of a Wrongful Writ of Execution?
If you are on the receiving end of a wrongful writ of execution, you can make a claim for money damages against the people responsible. What this means is that you can bring a lawsuit for wrongful execution against any of the following participants in the wrongful execution:
1. A judgment creditor that gives directions or participates in the wrongful execution;
2. The judgment creditor’s attorney if the attorney counsels and directs the wrongful execution; or
3. The officer carrying out the levy if the officer did not act in good faith. See Tex. Civ. Prac. & Rem. Code §§ 7.003 (a), 34.061 (b).
While most officers and attorneys dealing with writs of execution in Texas are very careful to do everything according to the letter of the law, there are occasions when mistakes are made. If you happen to be on the receiving end of those mistakes you definitely want to know what to look for. So, if you are a judgment debtor in Texas and a sheriff’s deputy shows up at your door to serve a writ of execution, keep this article close at hand so you know what to look for and avoid being the victim of a wrongful execution.