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

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TABLE OF CONTENTS(continued)PageIV. Other Possible Remedies ..............................................................................................31A. Receivership.......................................................................................................31B. LIS PENDENS....................................................................................................31C. Distress Warrants...............................................................................................31D. Temporary Restraining Orders and Temporary Injunctions ...............................32V. RISKS ASSOCIATED WITH PREJUDGMENT REMEDIES..........................................32VI. ETHICAL CONSIDERATIONS.......................................................................................35A. Attorney as a witness .........................................................................................35B. Ex Parte Communications with the Court...........................................................35-iii-
I. INTRODUCTIONA. OVERVIEWPrejudgment Remedies are an effective, yet sometimes risky, means of collectingjudgments in the State of Texas. Most of these remedies can be obtained on an ex parte basiswithout giving any notice whatsoever to the Debtor. 1 As a result, there are safeguards built intothe process that allow a Debtor to recover damages if the Creditor does not proceed with care.The purpose of most pre-judgment remedies is to secure money or property prior torendition of a final judgment. These remedies are often used in instances where there is adanger that the Debtor will not have the money or property by the time the final judgment isrendered. From a practical standpoint, the vast majority of the time, the dispute will be quicklyresolved when the Debtor discovers what has occurred.There are three (3) significant pre-judgment remedies that are most commonly used:Garnishment, Sequestration and Attachment. The procedure for obtaining these pre-judgmentremedies is similar.Generally, a Creditor must first file a lawsuit asserting the underlying claims that a debtis due and the basis for that debt. In addition to the Original Petition, the Creditor should alsofile an Application for the pre-judgment remedy. The Application must be supported by affidavitand must set forth the grounds that are specifically listed in the section of the Civil Practices &Remedies Code authorizing that particular remedy (See TEX. CIV. PRAC. & REM. CODE Chapters61-65). Prior to the issuance of the requested pre-judgment writ, the Court must approve theApplication and sign an order granting the issuance of a writ, subject to the filing of a bond. TheCourt’s Order must set an amount for the bond. The Court may grant the Application with orwithout a hearing. The hearing may be ex parte. In cases where there is a danger that theproperty or assets may be moved or hidden, it is generally advisable not to notify the Debtor ofthese proceedings. Once the Court has signed the order granting the application, the Creditormust file a bond with the Clerk. After the bond has been filed, the clerk will issue theappropriate writ. The writ should be delivered to a constable or sheriff for service on the partynamed in the writ.The statutory procedures such as writs of attachment, sequestration, and garnishmentare not classified as injunctive orders. Khraish v. Hamed, 762 S.W.2d 906, 911 (Tex. App.—Dallas 1988, writ denied). As such, no right of interlocutory appeal is available. Id.; Bowden v.Hunt, 571 S.W.2d 550, 551 (Tex. Civ. App.—Dallas 1978, no writ); McQuade v. E.D. SystemsCorp., 570 S.W.2d 33 (Tex. Civ. App.—Dallas 1978, no writ).While this paper generally describes these procedures in Texas State Court, Federal lawadopts the State Court Procedures. Fed. R. Civ. P. 64; Bank. R. 7064. As a result, all of theseremedies may be used in Federal Court unless otherwise prohibited by Federal Law. Id.B. CHOOSING THE RIGHT PRE-JUDGMENT REMEDYThe proper pre-judgment remedy will depend upon the property that is being sought. Agarnishment action is normally appropriate when a third party is indebted to a Debtor or holdsassets that belong to the Debtor. The most common situation arises when a Debtor maintainsan account at a financial institution within the State of Texas. In that instance, the financial1 For purposes of consistency in this article, the term "Creditor" will always be used for the party seekingto collect money and "Debtor" will refer to the party from whom the money is being sought.Page 1 of 36
Page 1 and 2: PREJUDGEMENTREMEDIES IN TEXASPresen
Page 3: TABLE OF CONTENTS(continued)Page5.
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 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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