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

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4. Contents of the Application and Supporting AffidavitTexas Rules of Civil Procedure 592-609 and Texas Civil Practice & Remedies CodeChapter 61, establish the procedure and evidentiary principles that govern attachments. Theapplication must be supported by affidavits of the Creditor, its agent, its attorney, or otherpersons having knowledge of relevant facts. Tex. R. Civ. P. 592; In re Argyll Equities, LLC, 227S.W.3d at 271. The application must comply with all statutory requirements and state thegrounds for issuing the writ and specific facts relied upon by the Creditor to warrant the requiredfindings by the Court. Tex. R. Civ. P. 592. The application and any affidavits must be based onpersonal knowledge and must set forth such facts as would be admissible in evidence providedthat the facts may be stated upon information and belief if the grounds of such belief arespecifically stated. Id. A sample application and supporting affidavit is attached hereto asExhibit "G."An Application for Writ of Attachment should have the caption from the underlyinglawsuit. It should include the name of the Court, the names of the Plaintiff and the names of theDefendant and the cause number. The Defendant's name, capacity and location for service orprocess should be listed. A Writ of Attachment is enforceable only against property interests ofthe named Defendants.Although there is very little case law concerning Writs of Attachment, it is generallyunderstood that the requirements for a Writ of Attachment are similar to those of a Writ ofGarnishment or a Writ of Sequestration. An affidavit that does not specifically state the groundsupon which the Creditor's belief is based, is not sufficient enough and will not support theapplication. See El Periodico, Inc. v. Parks Oil Co., 917 S.W.2d 777, 779 (Tex. 1996). Thefacts must be based upon the declarant's personal knowledge and not on hearsay. SeeMetroplex Factors, Inc. v. First Nat. Bank-Bridgeport, 610 S.W.2d 862, 865 (Tex. Civ. App.—Fort Worth 1980, writ ref'd n.r.e.).5. Contents of the Order Granting the Application for Writ ofAttachmentTypically, the applicant will draft the Order granting the Application for Writ ofAttachment. The Order must contain the following:Tex. R. Civ. P. 592.a. specific findings of fact to support the statutory grounds found to exist (asset forth Tex. Prac. & Rem. Code § 66.001 and § 61.002);b. the maximum value of property that may be attached;c. the amount of the bond required of the Creditor;d. a statement commanding that the attached property be kept safe andpreserved subject to further Orders of the Court; ande. the amount of the bond required of the Debtor to replevy.A sample Order on Writ of Attachment is attached hereto as Exhibit “H.”The amount of the Attachment Bond shall be in an amount that will adequatelycompensate the Debtor in the event Creditor fails to prosecute its suit to effect, and to pay alldamages and costs which may be adjudged against the Creditor for wrongfully suing out theWrit of Attachment. Id. The amount of the Replevy Bond shall be in an amount of the Creditor'sclaim, plus one year's accrual of interest, if allowed by law on the claim, plus the estimated costsPage 26 of 36
of Court. Id. The Order granting the Writ of Attachment should specifically identify the propertybeing attached so that the levying officer will be able to easily identify the specific property.The Order may direct the issuance of several Writs at the same time, or insuccession, to be sent to different counties. Tex. R. Civ. P. 592, 595.6. Contents of the Bond for Writ of AttachmentAfter the Order granting the Application for Writ of Attachment has been signed, it is nextnecessary to obtain a bond in an amount set forth in the Order. The clerk will not issue a Pre-Judgment Writ of Attachment until the Creditor has filed with the clerk a bond payable to theDebtor in the amount fixed by the Court's Order with sufficient surety or sureties as provided bystatute, conditioned that the Creditor will prosecute a suit to affect and pay to the extent of thepenal amount of the bond all damages and costs as may be adjudged against the Creditor forwrongfully suing out the Writ of Attachment. Tex. R. Civ. P. 592a.Texas Civil Practice & Remedies Code § 61.023 requires that the before Writ ofAttachment may be issued, the Creditor must execute a bond that:1. has two or more good and sufficient sureties;2. is payable to the Debtor;3. is in an amount fixed by the Judge or Justice issuing the Writ; and4. is conditioned on the Creditor prosecuting its suit to affect and paying alldamages and costs adjudged against him for wrongful attachment.There is a conflict between the rules and the statutes concerning the number of suretiesthat are necessary for a Writ of Attachment. As noted above, the rules require a "surety orsureties," yet, the Code requires "two or more good and sufficient sureties." While there are nocases that have resolved this apparent conflict, it can be argued that one corporate suretyequals two personal sureties pursuant to the Texas Insurance Code Article 7.19-1. However,given the fact that there are no cases resolving this issue, be prepared to post a bond with twoor more sureties if the clerk requires you to do so. Additionally, by filing a bond executed byonly one surety, you leave yourself open to a possible attack from the Debtor that theattachment was wrongful due to the fact that the bond did not meet the requirements set forth inthe Code.The rules specifically provide a form of bond that may be used by the Creditor. Tex. R.Civ. P. 592b. A copy of a sample bond that is based, in part, on Rule 592b is attached heretoas Exhibit "I."After notice to the opposing party, even before or after issuance of the Writ, either partymay file a motion to increase or reduce the amount of the bond or to question the sufficiency ofthe sureties thereon. Tex. R. Civ. P. 592a.7. Contents of the Writ of AttachmentThe Writ of Attachment is directed to the sheriff or any constable within the State ofTexas and commands him to attach and hold, unless replevied, the property of the Debtor of areasonable value in approximately an amount fixed by the Court as can be found within thatcounty. Tex. R. Civ. P. 593. Most clerks have a form of Writ that they will typically use.Page 27 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 and 20: posting a replevy bond. While the p
Page 21 and 22: Like the application, the affidavit
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: itself. S.R.S. World Wheels, Inc. v
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

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