The lienholder should apply for a writ of sequestration on personal property subject to the lien at the time suit is filed on the debt; see sections 7.14:2, 8.16, and 8.17 in this manual. For a petition on a sworn account seeking foreclosure of the lien, see form 7-22. Additional sequestration forms are at forms 8-8 through 8-16. See section 14.10 for other forms of party designation. In most counties, the clerk will prepare the writ of sequestration and the return. In some cases, the attorney may wish to prepare them for the clerk.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
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Use the same caption as in the petition and application to foreclose the constitutional lien unless the cause has been transferred. |
Application and Affidavit for Writ of Sequestration in Suit on Constitutional Lien on Personal Property
1.Parties. Plaintiff, [name of plaintiff], whose address is [address, city, state], makes this Application for Writ of Sequestration. Defendant is [name of defendant], who can be served with citation at [address, city, state].
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State specific facts relied on by the plaintiff to warrant the required findings by the court. The following paragraphs are sample allegations; the actual allegations must be drafted to fit the facts. |
2.Facts. In this suit, now pending in this Court, Plaintiff is seeking damages from Defendant and foreclosure or enforcement of a constitutional lien pursuant to article XVI, section 37, of the Texas Constitution, in the following personal property: [describe each item of property with sufficient certainty that it can be identified and distinguished from similar property]. Each item of property has the following value: [list each item and its value]. All this property is in Defendant’s possession at [address, city, county] County, Texas.
3.Lien. On [date], Plaintiff [delivered to Defendant/repaired] the property described above, for which Defendant still owes Plaintiff $[amount]. Defendant refuses to pay this amount to Plaintiff. Plaintiff holds a lien on this property under article XVI, section 37, of the Texas Constitution, having [made/repaired] the property. This property is in Defendant’s possession.
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Select one of the following. |
4.Grounds. Plaintiff fears that Defendant may convey the property to a third party without notice of Plaintiff’s claim to a constitutional lien on the property, so that the conveyance would probably sever Plaintiff’s constitutional lien.
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Or |
4. Grounds. Defendant refused to surrender possession of the property when specifically and rightfully requested by Plaintiff to do so. This refusal by Defendant is an intentional concealment of the property and therefore jeopardizes Plaintiff’s lien on the property.
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Continue with the following. |
5.Prayer. Plaintiff prays that a writ of sequestration issue and that Plaintiff receive all further relief to which Plaintiff may be entitled.
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
Affidavit
BEFORE ME, the undersigned authority, on this day personally appeared [name of affiant], who swore on oath that the following facts are true:
“I am [Plaintiff/[other capacity, e.g., credit manager of Plaintiff]] in this cause. [Include if affiant is agent: I am authorized to make this affidavit and to apply for a writ of sequestration in this cause.]
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Select one of the following. |
“I have personal knowledge of the facts stated above, and they are true and correct.”
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Or |
“I make this affidavit on information and belief. The basis for that belief is the following: [state specific grounds for belief].”
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Continue with the following. |
[Name of affiant]
Affiant
SIGNED under oath before me on ________________________________.
Notary Public, State of Texas