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

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There are several different types of liens that may be enforced using a Writ ofSequestration. The most common type of lien is a purchase money security interest under theUCC (Tex. Bus. & Comm. Code § 9.001 et seq.). Other liens include constitutional liens tooriginal contractors providing goods or services used in construction (Tex. Const. Art. XV1, §37), statutory liens for mechanics, artisans and materialmen (Tex. Prop. Code § 53.001 et seq.),and statutory liens for farm, factory and store workers (Tex. Prop. Code § 58.001 et seq.).4. Contents of the Application and Supporting AffidavitThe application must be supported by affidavits of the Creditor, its agent, its attorney, orother persons having knowledge of relevant facts. Tex. R. Civ. P. 696; Monroe v. GMAC, 573S.W.2d 591, 593 (Tex. Civ. App.—Waco 1978, no writ). The application and the affidavit mustcontain the following:1. a statement of the grounds for issuance of the Writ as set forth in Texas Rule ofCivil Procedure 62.001;2. a description of the property to be sequestered with such certainty that it may beidentified and distinguished from property of a like kind, giving the value of eacharticle of the property and the county in which it is located;3. the specific facts relied upon by the Creditor to warrant the required findings bythe Court.Tex. R. Civ. P. 696.As a practical matter, the application should also contain the specific facts stating thenature of the Creditor's claim and the amount in controversy. The value of the property to becovered must be within the Court's jurisdictional limits. Moore v. First State Bank of Livingston,127 S.W.2d 536, 538 (Tex. Civ. App.—Beaumont 1939, no writ).The description of the property must be specific enough so that the levying officer canidentify the property. Tex. R. Civ. P. 696. Although the description of the property in theApplication for Writ of Sequestration must be specific enough so that the property may beidentified from property of a like kind, giving the value of each article, when the Creditor isseeking sequestration of an inventory, it is not necessary to allege the value of each individualitem. The Creditor may allege the value of the total inventory. Marrs v. South Texas Nat. Bank,686 S.W.2d 675, 678 (Tex. App.—San Antonio 1985, writ ref'd n.r.e.). If the Writ ofSequestration misdescribes the property to be sequestered, it is a fatal error. Watts v.Overstreet, 14 S.W. 704, 705-706 (Tex. 1890). As a general rule, if the Creditor has informationsuch as a serial number or a Vehicle Identification Number, that information should be includedin the application and supporting affidavit.The affidavit supporting the Application for Writ of Sequestration shall be made onpersonal knowledge and shall set forth such facts as would be admissible into evidenceprovided that they may be stated based on information and belief if the grounds of such beliefare specifically stated. Tex. R. Civ. P. 696. The person executing the affidavit must be a personwith knowledge of relevant facts. Monroe v. GMAC, 573 S.W.2d 591, 593 (Tex. Civ. App.—Waco 1978, no writ). Generally, the Court will focus more on the facts that are based uponpersonal knowledge and will not look favorably upon matters based on information and beliefunless the circumstantial evidence is very strong.Page 16 of 36
Like the application, the affidavit must state the grounds for issuing the Writ, includingthe description of the property to be sequestered, with such certainty that it may be identifiedand distinguished from property of a like kind, giving the value of each article of the property andthe county in which it is located, and the specific facts relied upon by the Creditor to warrant therequired findings by the Court. Tex. R. Civ. P. 696. The statement of value is important in orderto determine the amount of the bond. As a practical matter, it is often advisable to copy theparagraphs from the affidavit into the application almost verbatim. This reduces the probabilitythat the application will be inconsistent with the affidavit. The location of the property is alsoimportant because this directs the levying officer where to seek the property. If the propertylocation is not accurate, it may affect the levying officer's ability to seize the property. A sampleApplication for Writ of Sequestration and supporting affidavit are attached as Exhibit "D."5. Contents of the Order granting the Application for Writ ofSequestrationGenerally, the Creditor will draft the Order granting the Writ of Sequestration. The Ordermay direct the issuance of several writs at the same time to be sent to different counties. Tex.R. Civ. P. 696. The Order must be written. Id. The Order must contain the following:1. Specific findings of fact to support the statutory grounds found to exist;2. A description of the property to be sequestered with such certainty that it may beidentified and distinguished from property of a like kind, giving the value of eacharticle of the property and the county in which it is located;3. the amount of the bond required of the Creditor which, in the opinion of the Court,shall adequately compensate the Debtor in the event the Creditor fails toprosecute its suit to effect and pay all damages and costs, including the elementsof damages stated in section 62.044 and section 62.045 of the Civil Practice andRemedies Code;4. the amount of bond required of the Debtor to replevy, which shall be an amountequivalent to the value of the property sequestered or the amount of theCreditor's claim and one year's accrual of interest, whichever is the lesseramount, and the estimated costs of Court; and5. the county in which each article of property is located.Tex. R. Civ. P. 696.The description of the property in the Order should be limited to the property that iseasily identified and, if possible, property that is not impressed with superior liens. This allowsthe officer executing the writ to easily identify the property to be seized. Where the descriptionis too general, the officer executing the writ will often decline to seize the property because ofthe risks associated with wrongful seizure. Ideally, the Order should specify the collateral byserial number or other identifying characteristics, if possible. The Order should direct the Writ ofSequestration to a levying officer for any county in Texas where the claimed property is located.Tex. R. Civ. P. 699. A sample Order granting Writ of Garnishment is attached hereto as Exhibit"E."Page 17 of 36
Page 1 and 2: PREJUDGEMENTREMEDIES IN TEXASPresen
Page 3 and 4: TABLE OF CONTENTS(continued)Page5.
Page 5 and 6: I. INTRODUCTIONA. OVERVIEWPrejudgme
Page 7 and 8: B. If the Debtor is an individual,
Page 9 and 10: intellectual property or causes of
Page 11 and 12: parties in a garnishment action. Ja
Page 13 and 14: . Hearing on the ApplicationIt is n
Page 15 and 16: may be liable for exemplary damages
Page 17 and 18: The Debtor may also petition the Co
Page 19: posting a replevy bond. While the p
Page 23 and 24: type and in a manner calculated to
Page 25 and 26: Debtor may simply chose to ignore t
Page 27 and 28: property, the bond must require tha
Page 29 and 30: itself. S.R.S. World Wheels, Inc. v
Page 31 and 32: of Court. Id. The Order granting th
Page 33 and 34: 9. Debtor’s Response to the Writ
Page 35 and 36: IV.OTHER POSSIBLE REMEDIESA full de
Page 37 and 38: Debtor. In such cases, the Garnishe
Page 39 and 40: Due to the fact that a bond is requ

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

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