Postjudgment Discovery
§ 26.1Purpose and Scope of Postjudgment Discovery
Pretrial discovery proceedings can be used after judgment to aid in the enforcement of the judgment. Generally, the rules governing pretrial discovery also apply to postjudgment discovery. Tex. R. Civ. P. 621a. The prejudgment discovery limitations of rule 190 (concerning the discovery period, the number of interrogatories, and deposition time) do not apply to discovery conducted under rule 621a. Tex. R. Civ. P. 190.6. Any inquiry permissible under pretrial discovery should be permissible to aid in enforcing a judgment. The information sought must be reasonably calculated to lead to the discovery of material evidence, and material evidence in turn includes information that would aid in enforcement of the judgment. Blankinship v. Brown, 399 S.W.3d 303, 312 (Tex. App.—Dallas 2013, pet. denied). For instance, it should be permissible to make any inquiry designed to aid the attorney in ascertaining whether the judgment debtor—
1.currently has property subject to satisfaction of the judgment;
2.has transferred or conveyed property fraudulently; or
3.will obtain property that would be subject to the liability under the judgment.
The right of a successful party to obtain postjudgment discovery inures to his successor or assignee. Tex. R. Civ. P. 621a.
In pursuing discovery of the debtor’s assets, as well as if seeking actual levy, the creditor’s attorney should keep in mind what property is exempt and what is not. These matters are discussed in part III. in chapter 27 of this manual.
Procedurally, discovery operates in the same manner after judgment as before. See Emmons v. Creditor’s Financial Services, 492 S.W.2d 363, 365 (Tex. Civ. App.—Waco 1973, no writ).
If the judgment has been suspended by supersedeas bond or court order, postjudgment discovery is not permitted. Tex. R. Civ. P. 621a. See section 27.25 in this manual regarding postjudgment orders suspending execution of the judgment.
It is often preferable to take the judgment debtor’s oral deposition instead of using written interrogatories, because questioning him in person allows the creditor immediately to ask additional questions based on the debtor’s responses. A subpoena or a notice duces tecum combines a documents request with the scheduled deposition. If substantial documents are expected, it may be more practical to first proceed with a request for production so the documents can be reviewed before the time the deposition is scheduled. The discussion in part II. in chapter 18 of this manual regarding pretrial depositions applies as well to postjudgment depositions. Postjudgment deposition notices and subpoenas with duces tecum language are at forms 26-1 through 26-3 in this chapter. Note that the subpoena must state the text of rule 176.8(a), which warns the witness that failure to obey the subpoena may be a contempt of court. Tex. R. Civ. P. 176.1(g). Rule 176.8(b) provides that a person served with a subpoena cannot be attached for failure to comply without proof by affidavit of the party requesting the subpoena or the party’s attorney of record that all fees due the person by law were paid or tendered. Tex. R. Civ. P. 176.8(b). Civil Practice and Remedies Code section 22.001 provides for $10 per day for each day the witness “attends court,” and section 22.004 provides for $1 for production of documents. See Tex. Civ. Prac. & Rem. Code §§ 22.001, 22.004. The $10 per day witness fee requirement applies to subpoenas for depositions. Tex. Att’y Gen. Op. No. DM-342 (1995). These fees need to be paid when the subpoena is served so the typical procedure is to attach $11 in cash to the subpoena. See Tex. Civ. Prac. & Rem. Code § 22.001(b).The pattern interrogatories at forms 26-5 through 26-8 can serve as an outline for the scope of a deposition. See form 26-21 for a checklist of deposition topics.
A witness may be compelled to attend a deposition by being served with a subpoena under Tex. R. Civ. P. 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition on the party’s attorney has the same effect as a subpoena served on the witness. Tex. R. Civ. P. 199.3. If the judgment debtor is a corporation or other entity, it is the better practice to name a particular person to appear on behalf of the corporation. If it is unclear whether the desired witness is an agent or employee subject to control of the party, serving the individual with a subpoena may be preferable. See In re Reaud, 286 S.W.3d 574, 583 (Tex. App.—Beaumont 2009, orig. proceeding) (per curiam) (director of corporation not subject to corporation’s control). See form 26-3. If a nonparty witness is to be subpoenaed, the subpoena must be filed with the court and a copy served on the other parties to the suit. Tex. R. Civ. P. 191.4(b)(1), 191.5. A pro se defendant should be served with a subpoena instead of merely a notice, although some practitioners take the position that the pro se defendant is acting as his own attorney and that a notice has the effect of a subpoena under Tex. R. Civ. P. 199.3.
§ 26.2:2Nonstenographic Depositions
Nonstenographic depositions are allowed if the party intending to take the deposition gives at least five days’ notice to the witness and all other parties specifying the type of nonstenographic recording that will be used and whether the deposition will also be recorded stenographically. Tex. R. Civ. P. 199.1(c). Typically this notice is included in the subpoena or deposition notice. The party requesting the nonstenographic recording is responsible for obtaining a person authorized to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. Tex. R. Civ. P. 199.1(c).
A nonstenographic deposition may be recorded by a certified shorthand reporter, a party, the party’s attorney, or a full-time employee of the party or his attorney. Tex. Gov’t Code §§ 52.021(f), 52.033. See also Burr v. Shannon, 593 S.W.2d 677, 678 (Tex. 1980) (orig. proceeding) (discussing predecessor statutes with similar language) and Tex. Att’y Gen. Op. No. GA-928 (2012) (discussing the statutory exception to section 52.021(f)’s requirement that all depositions conducted in this state must be recorded by a certified shorthand reporter; the exception is found at section 52.033, which states that the requirement does not apply to (1) a party to the litigation involved, (2) the attorney of the party, or (3) a full-time employee of a party or a party’s attorney). The oath may be administered by a notary public. Tex. Gov’t Code § 602.002(4).
A nonstenographic deposition is especially useful for postjudgment discovery. It eliminates the expense of a court reporter; its scope and length are limited only by the general scope of discovery; and it affords, under color of civil procedure rule, a judicially enforceable means of meeting the debtor face-to-face to discuss the debt and the debtor’s ability to satisfy it. See section 18.26 in this manual for additional information regarding nonstenographic depositions.
The scope of postjudgment requests for production is the same as that for prejudgment requests. See Tex. R. Civ. P. 621a. See section 18.72 in this manual. Examples of the types of documents the creditor’s attorney might seek are described in the notices and subpoenas duces tecum at forms 26-1 through 26-3 in this chapter.
§ 26.3:2Service of Requests and Responses
Service of a postjudgment request for production is made in the same manner as a prejudgment request. See Tex. R. Civ. P. 621a. See section 18.74 in this manual. If the debtor is represented by an attorney at this stage, or if it is uncertain whether the debtor is still so represented, it is the better practice to serve both the debtor and the attorney. See Arndt v. Farris, 633 S.W.2d 497, 500 (Tex. 1982). Copies must also be served on all parties of record. Tex. R. Civ. P. 191.5.
§ 26.4:1Interrogatories Generally
The number of postjudgment interrogatories is not limited by the rules. See Tex. R. Civ. P. 190.6. This has led to a practice of sending long form interrogatories. Nonselective use of interrogatories could be unduly burdensome to the debtor and may be subject to objection if it appears that many of the questions are not relevant. The creditor’s attorney should be selective in preparing written interrogatories, especially those directed to individual debtors, and should ask only those questions that are relevant to the particular debtor. Accordingly, depositions are usually preferable to interrogatories as a tool for examining the debtor directly. See also part IV. in chapter 18 of this manual regarding pretrial interrogatories.
§ 26.4:2Service of Interrogatories
Written interrogatories are served in the same manner as other papers in the suit. Tex. R. Civ. P. 21a, 621a. If it is uncertain whether the party is still represented by an attorney, it is the better practice to serve both the party and attorney. See Arndt v. Farris, 633 S.W.2d 497, 500 (Tex. 1982). Copies must also be served on all parties of record. Tex. R. Civ. P. 191.5.
§ 26.4:3Service of Interrogatories on Corporate or Other Entity Debtor
If the debtor is a corporation or other entity, it is good practice to address the interrogatories to the agent or employee subject to control of the entity defendant that will have the most knowledge of the defendant’s assets. For a large corporation, the attorney should consider serving the corporation’s controller. For a closely held corporation, the president is a common choice for service. If it becomes necessary to enforce a court order to answer the interrogatories by contempt proceedings, it can be problematic enforcing the order by contempt on an entity debtor unless the corporate agent is shown to have knowledge of the order and participates in or encourages the violation of the order. Ex parte Chambers, 898 S.W.2d 257, 264 (Tex. 1995) (orig. proceeding) (contemner was sole officer, director, and shareholder). See section 26.7 below. Preferably, the individual should reside or do business in the county of suit, because some courts are reluctant to order the attachment of persons outside the county; see section 26.7:2.
§ 26.5Obtaining Discovery from Debtor’s Financial Institution
The debtor’s bank, savings and loan association, or other financial institution may be compelled to produce financial records of the debtor. Tex. Fin. Code § 59.006. See the discussion at section 18.16 in this manual.
§ 26.6Sanctions for Failure to Respond to Discovery
Pretrial discovery sanctions are available for postjudgment discovery. Tex. R. Civ. P. 215, 621a. Most of these sanctions, such as striking pleadings, refusing to allow a defense, or entering a default judgment, are clearly not relevant to postjudgment discovery. The procedure most likely to cause the judgment debtor to respond to written interrogatories, oral questions on deposition, or a subpoena duces tecum is to obtain an order compelling discovery followed by contempt proceedings. See Tex. R. Civ. P. 215.2(a). If the judgment is on appeal and not superseded, the sanction may be dismissal of the appeal. See Byrnes v. Ketterman, 440 S.W.3d 688, 690 (Tex. App.—El Paso 2013, no pet.).
§ 26.7Enforcement of Discovery Orders by Contempt
§ 26.7:1Statutory Basis of Contempt
The court’s authority to enforce its lawful orders includes punishment of the contemner by fine, imprisonment, or both. Tex. Gov’t Code §§ 21.001, 21.002. The court may incarcerate a contemner to coerce compliance with court orders relating to postjudgment discovery proceedings. Tex. Gov’t Code § 21.002(e).
§ 26.7:2Preliminary Considerations
Before proceeding with postjudgment discovery, the creditor’s attorney should assess the likelihood that the defendant will not respond and that contempt proceedings will be needed to coerce compliance. If the eventual need to use the contempt sanction appears likely, two factors should be considered:
1.If the defendant is a corporation or other entity, the discovery request should be addressed to a named individual on behalf of the corporation so that, on failure of the individual to respond, the contempt sanction can be imposed on him (see section 26.4:3 above). Similarly, the attorney should consider noticing an individual for a deposition in aid of judgment instead of merely noticing the corporation. See form 26-1 in this chapter. See also the discussion at section 26.2:1 above regarding when a subpoena should be used.
2.If the defendant who may have to be incarcerated will not be within the county of suit and is likely not to appear at the show-cause hearing, counsel should determine whether the court would order attachment and whether counsel will be able to obtain the necessary cooperation of law enforcement personnel to attach and transport the defendant.
Because of the trouble and expense involved in transferring an individual from one county to another, some courts will not order attachment of a person who is not within the county in which the court sits. If a defendant who is located in another county is held in contempt, attachment will require the coordinated efforts of sheriffs and constables in both counties. It is advisable to ascertain the costs involved and the logistics for attaching the defendant before proceeding with a motion for contempt involving an out-of-county defendant.
§ 26.7:3Motion and Order to Compel as Preliminary to Contempt Action
If the defendant does not comply with discovery requests within the prescribed time, the judgment creditor should obtain a court order compelling compliance. Tex. R. Civ. P. 215. See forms 26-9, 26-10, 26-19, and 26-20 in this chapter for a motion and order. If the order is disobeyed, the creditor should then file a motion for contempt; see form 26-12. Due process is violated if the motion for contempt and the show-cause order do not specifically notify the relator of the precise complaint for which he may be held in contempt. In re Roberts, 584 S.W.2d 925, 926 (Tex. Civ. App.—Dallas 1979, no writ). Therefore, the attorney should always obtain personal service of the show cause notice, show cause order, and motion for contempt on the person he intends to ask the court to hold in contempt. Notice or knowledge of the order one is charged with violating is a jurisdictional prerequisite to the validity of a contempt order. Ex parte Conway, 419 S.W.2d 827, 828 (Tex. 1967).
§ 26.7:4Show-Cause Hearing and Show-Cause Order
In response to a motion to hold the defendant in contempt, the court will order the defendant to appear and show cause why he should not be held in contempt for failing to comply with the discovery order. See Ex parte Gordon, 584 S.W.2d 686, 688–89 (Tex. 1979). Typically the motion is filed or presented to the court with a proposed order. The court clerk will issue a show-cause notice (in some counties, also titled a show-cause order). The show-cause order and notice along with a copy of the motion should be served on the defendant personally, not on his attorney and not by mail. It is a denial of due process to commit to jail for contempt a person who is not shown to have had personal notice or knowledge of the show-cause hearing at which he was held in contempt. Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969). The documents served on the defendant must state when, how, and by what means the accused may be found to be guilty of contempt. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969). In a case involving conduct outside the presence of the court, oral notification of an accusation of contempt is insufficient. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988) (per curiam). See form 26-12 in this chapter for a motion for contempt and show-cause order. Note that if contempt is sought for failing to comply with a subpoena, an affidavit must accompany the motion stating that all fees due the witness by law were paid or tendered. Tex. R. Civ. P. 176.8(b). See the option in form 26-12 in this chapter. If the court clerk does not prepare the show-cause notice, form 26-13 may be used.
A defendant should not be held in contempt in his absence. If the defendant fails to appear at the show cause hearing, an order for writ of attachment should be signed and a writ of attachment issued to bring the defendant before the court. See form 26-17 for an order for writ of attachment and form 26-18 for a writ of attachment. See also the discussion of due process at 26.7:8 below.
It is well settled that to satisfy due-process requirements, both a written judgment of contempt and a written commitment order are necessary to imprison a person for civil constructive contempt of court. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992); Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980). A contempt judgment that confines the contemner until he complies with a previous court order should clearly state in what respect that order has been violated. Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966). It must be definite as to punishment, defining what is required of the contemner in order to purge himself of the contempt. Ex parte Kottwitz, 8 S.W.2d 508, 509–10 (Tex. 1928). Collection of attorney’s fees by contempt is not allowed and constitutes imprisonment for debt. The contempt judgment can provide for recovery of attorney’s fees but should not provide for payment as a condition of release. Ex parte Dolenz, 893 S.W.2d 677 (Tex. Civ. App.—Dallas 1995, orig. proceeding). See form 26-15 in this chapter for a contempt judgment.
It is rare that the court will place a defendant in jail, unless the defendant is openly disrespectful to the court or states that he has no intention of complying with the court’s order. Should the court choose to grant additional time to allow the defendant to comply with the discovery order, the best practice is to ask the court to recess the show cause hearing to allow the defendant to comply with the discovery order.
A person may not be imprisoned for contempt without a written order of commitment. Ex parte Martinez, 331 S.W.2d 209, 210 (Tex. 1960). The commitment order must clearly specify actions that the contemner must perform to gain release. Ex parte Hart, 520 S.W.2d 952, 954 (Tex. Civ. App.—Dallas 1975, no writ). To the extent that the punishment directed in a commitment order varies from the punishment directed by the contempt judgment, the commitment order is unauthorized and will not be enforced. See Ex parte Port, 674 S.W.2d 772, 777 (Tex. Crim. App. 1984) (when commitments directed punishment of incarceration, fine, and costs, whereas contempt judgments authorized only fine and costs, alleged contemners entitled to relief from portion of commitments directing incarceration), overruled on other grounds by Ex parte Edone, 740 S.W.2d 446 (Tex. Crim. App. 1987). Most courts will require a provision in the contempt judgment permitting the defendant to be released from jail on payment of a bond, conditioned that on or before a certain date he will comply with the requirements of the contempt judgment and that if he does not the bond will be forfeited and the defendant jailed under the contempt judgment. See form 26-16 in this chapter for a writ of attachment and commitment order to be issued by the clerk and transmitted to law enforcement. The defendant is typically held in jail until the judgment of contempt, writ of attachment, and commitment order can be issued and served. Drafts of the documents should be prepared before the contempt hearing. Fourteen and even three days have been held to be too long to be confined without a written commitment order. In re Stout, 367 S.W.3d 523, 524 (Dallas—2012, orig. proceeding) (fourteen-day delay too long, citing court’s ruling in In re White) In re White, No. 05-06-00318-CV, 2006 WL 1000228, at *1 (Tex. App.—Dallas 2006, orig. proceeding) (three days too long).
§ 26.7:7Confinement, Fine, and Habeas Corpus Release
If the defendant is held in contempt, he can be ordered incarcerated until he complies with the court’s orders. Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966); Ex parte Kottwitz, 8 S.W.2d 508, 509 (Tex. 1928). In addition to ordering indefinite commitment to coerce compliance, the district or county court can punish the defendant in contempt by a fine of not more than $500 ($100 in justice court), confinement in the county jail for not more than six months (three days in justice court), or both. Tex. Gov’t Code §§ 21.001, 21.002(b), (c), (e). A nonparty who fails to comply with discovery may be incarcerated for contempt. See Hennessy v. Marshall, 682 S.W.2d 340, 343 n.1 (Tex. App.—Dallas 1984, no writ). Although commitment to coerce compliance may be for an indefinite time, the contemner must have a means to purge himself and secure his release. Ex parte De Wees, 210 S.W.2d 145, 146–47 (Tex. 1948); In re Anderson, 604 S.W.2d 338, 339 (Tex. Civ. App.—Tyler 1980, no writ).
§ 26.7:8Due-Process Requirements
Contempt may be civil or criminal, direct or constructive. See Ex parte Werblud, 536 S.W.2d 542, 545–46 (Tex. 1976). Contempt proceedings are quasi-criminal in nature, and alleged contemners are entitled to certain procedural safeguards, including reasonable notice, assistance of counsel, jury trial for serious contempt, and the requirement that if violation of a court order is alleged, the order must have been in writing, clear, and unambiguous. Ex parte Johnson, 654 S.W.2d 415, 420 & n.2 (Tex. 1983). If the alleged contempt carries a possible punitive deprivation of personal liberty, regardless of whether the proceeding is labeled “civil,” “criminal,” or “quasi-criminal,” due-process requirements apply. Ex parte Johnson, 654 S.W.2d at 420. A person charged with constructive criminal contempt must therefore be advised that he has the right to an attorney and the right to have an attorney appointed if he cannot afford one. Ex parte Goodman, 742 S.W.2d 536, 541 (Tex. App.—Fort Worth 1987, no writ). A contempt order is not necessarily void, however, because it does not contain a statement that the contemner “knowingly and intelligently” waived his right to counsel. Ex parte Linder, 783 S.W.2d 754, 759–61 (Tex. App.—Dallas 1990, no writ) (overruling Ex parte Martinez, 775 S.W.2d 455 (Tex. App.—Dallas 1989, no writ)). Persons charged with constructive criminal contempt are constitutionally guaranteed the right to be present at trial and to confront witnesses. If the alleged contemner fails to personally appear at the show-cause hearing after personal service, it is the burden of the party moving for contempt to demonstrate affirmatively that the alleged contemner’s absence at the contempt hearing was due to a voluntary, knowing, and intelligent waiver of his right to be present and participate at trial. Appearance by the attorney is not sufficient. If an individual is cited for criminal contempt and fails to appear at the appointed time and place, the proper procedure is to bring him into court under a capias or writ of attachment. Johnson, 654 S.W.2d at 421–22. In Ex parte Alloju, the court held that even though the defendant was assessed only coercive incarceration, the guidelines in Johnson should apply because the defendant could have been punished with punitive confinement. The court held that the trial court should not have proceeded on the contempt charges in his absence without a waiver of his rights. Ex parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) (orig. proceeding) (per curiam). Rarely will a waiver be available. Instead, a writ of attachment should issue and the defendant brought before the court. See form 26-17 in this chapter for an order for writ of attachment and form 26-18 for a writ of attachment.