Prejudgment Remedies in Texas - Doug D'Arche - Back to Main Page

Garnishee resides in another county, then the proceeding must be transferred to the county ofthe Garnishee’s residence for trial. TEX. R. CIV. P. 675; Tex. Civ. Prac. & Rem. Code § 63.005;S.L. Crawford Const., Inc. v. Lassiter, 17 S.W.3d 379, 380-81 (Tex. App.—Houston [1 st Dist.]2000, no writ). There are three items required for the Garnishee to obtain a discharge. Rowleyv. Lake Area Nat. Bank, 976 S.W.2d 715, 720 (Tex. App.—Houston [1 st Dist.] 1998, writ denied).These three items are: (1) a denial that the garnishee is indebted to the defendant, (2) a denialthat the garnishee has effects of the defendant; and (3) a denial of knowledge of third personswho may be indebted to the defendant or have effects of the defendant, or the names of suchpersons. Id. If the Garnishee denies all these matters, and if Creditor does not controvert thesematters with an affidavit, the Garnishee is discharged upon its answer. Tex. R. Civ. P. 666, 673;A. Wolfson's, Inc. v. First State Bank of Corpus Christi, 752 S.W.2d 614, 614 (Tex. App.—Corpus Christi 1988, writ denied). In that case, the Garnishee is entitled to recover the costs ofthe proceeding, including reasonable compensation to the Garnishee, to be taxed as costs.Tex. R. Civ. P. 677.If the Garnishee's answer admits that the Garnishee is indebted to the Debtor or haseffects belonging to the Debtor, then the judgment will be entered in accordance with theanswer of the Garnishee. Tex. R. Civ. P. 668, 669; Healy v. Wick Bldg. Systems, Inc., 560S.W.2d 713, 717 (Tex. Civ. App.—Dallas 1977, writ ref'd n.r.e.). The judgment should directthat the funds be deposited with the registry of the Court pending outcome of the underlyingdispute.If the Garnishee's answer raises doubts about the ownership of the funds, then theCreditor must prove that the Debtor owns the funds. Putman & Putman, Inc. v. CapitolWarehouse, Inc., 775 S.W.2d 460, 463 (Tex. App.—Austin 1989, writ denied). The Creditor in agarnishment action merely steps into the shoes of the Debtor, as against the Garnishee.Rowley v. Lake Area Nat. Bank, 976 S.W.2d 715, 719 (Tex. App.—Houston [1 st Dist.] 1998, writdenied). The Creditor may enforce whatever rights the Debtor could have enforced had theDebtor been suing the Garnishee directly. Id.The final judgment in the garnishment proceeding may not be entered until after entry ofa final judgment in the underlying lawsuit. Glenn W. Casey Const., Inc. v. Citizens Nat. Bank,611 S.W.2d 695, 700 (Tex. Civ. App.—Tyler 1980, no writ); Southern Pipeline Const. Co., Inc. v.Humble Oil Refining Co., 496 S.W.2d 248, 249 (Tex. Civ. App.—Houston [14 th Dist.] 1973, writref’d n.r.e.). For purposes of a garnishment proceeding, a judgment is final upon signing, unlessa supersedeas bond is approved and filed. Thompson v. Harco Nat. Ins. Co., 997 S.W.2d 607,612 (Tex. App.—Dallas 1998, writ denied).B. SEQUESTRATION1. OverviewSequestration is an extraordinary pre-judgment writ whereby property in dispute in alawsuit may be seized and held by the levying officer until it is sold, replevied or turned overas ordered by the Court. Sequestration proceedings are available when the suit is forpossession or foreclosure of property that is in immediate danger of being ill-treated,wasted, destroyed or concealed. This is the remedy that is commonly used by a Creditorthat has title to property or a lien upon that property.Generally, under a Writ of Sequestration, the property is seized and preserved duringthe pendency of the lawsuit. Where the property is perishable, it may be sold prior to finaljudgment. Sworn pleadings and a bond are required. The Debtor is required to be served withthe writ and has the opportunity to have the property returned during pendency of the lawsuit byPage 14 of 36