Prejudgment Remedies
I. Prejudgment Remedies Generally
§ 8.1Use of Prejudgment Remedies
The prejudgment remedies discussed in this chapter are typically used after suit is filed, but before judgment is obtained, to preserve the debtor’s assets for satisfying the eventual judgment. Note that an alternative remedy not covered in this chapter may be available for an employee who is owed wages as prescribed by Tex. Lab. Code §§ 61.051–.067.
§ 8.2Summary of Prejudgment Remedies
§ 8.2:1Mechanic’s and Other Liens
Liens commonly encountered in collections work not involving real property are constitutional mechanic’s liens; farm, factory, or store worker’s liens; worker’s possessory liens; and landlord’s liens. See chapter 7 in this manual for a discussion of liens and chapter 28 for a discussion of landlord-tenant law.
Prejudgment garnishment allows a creditor to reach assets of the debtor that are in possession of a third party, including debts that third parties owe to the debtor, to secure the property until judgment is entered. See sections 8.11 through 8.15 below regarding prejudgment garnishment.
Sequestration enables a secured creditor to preserve his collateral until a disputed claim to the collateral is settled by disposition of the underlying case. See sections 8.16 through 8.24 below regarding sequestration.
Attachment enables an unsecured creditor (or a creditor without a claim on subject property) to preserve the debtor’s nonexempt property for satisfaction of a probable judgment in the underlying case. Generally, the plaintiff must show that the defendant plans to hide property or otherwise cause the plaintiff to lose the ability to collect a debt. Attachment is effected by an officer’s authorized seizure and retention of the debtor’s nonexempt property. See sections 8.25 through 8.32 below regarding attachment.
§ 8.2:5Distinction between Garnishment, Sequestration, and Attachment
The foregoing judicial prejudgment remedies are often confused. Briefly, garnishment reaches the defendant’s property in the hands of a third party, such as a bank in which the defendant has deposited funds. Sequestration reaches any of the debtor’s property in which the creditor has a secured interest, regardless of its exempt status. Attachment reaches any nonexempt property of the debtor.
Injunctions are used in collections litigation to maintain the status quo regarding property in dispute pending outcome of the litigation. See Transport Co. of Texas v. Robertson Transports, Inc., 261 S.W.2d 549, 553 (Tex. 1953). An injunction may be used to enjoin a debtor from selling, alienating, or further encumbering property. See sections 8.33 through 8.40 below regarding injunction.
§ 8.3Cautions Regarding Use of Prejudgment Remedies
Using any of the prejudgment remedies discussed in this chapter as coercive measures may backfire on the creditor. The debtor may respond by filing bankruptcy and using the avoidance powers of the Bankruptcy Code to nullify any such action made within ninety days of filing. See, e.g., Weaver v. Aquila Energy Marketing Corp., 196 B.R. 945, 950–51 (S.D. Tex. 1996) (natural gas seller’s writ of garnishment against nonpaying purchaser, granted by trial court less than ninety days before purchaser’s filing for bankruptcy, was later avoided in bankruptcy proceedings). The debtor could also file a counterclaim or cross-claim (for destruction of his business, for example) for an amount much greater than the creditor’s claim.
§ 8.3:2Affidavits and Unsworn Declarations by Attorneys
Although the applicable statutes allow it, attorneys should not sign affidavits on their clients’ behalf unless they have actual knowledge of the facts set out in the affidavit. The general risks involved if attorneys execute affidavits are discussed at section 19.17:3 in this manual. The additional risks in seeking writs of garnishment, sequestration, or attachment in prejudgment proceedings should make the attorney even more cautious, because wrongful issuance of the writ can lead to substantial damages, potentially rendering both client and attorney liable. Therefore, only a person with actual, personal knowledge of the facts, preferably a personal representative of the creditor, should sign an affidavit supporting an application for a writ for any of these prejudgment remedies. Similarly, attorneys should avoid executing an unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001 in support of a prejudgment remedy.
Because of the constitutional problems and challenges surrounding prejudgment remedies and the possibility of substantial damages arising from a successful counterclaim, the manual committee emphasizes that the attorney should take the highest degree of care in drafting an application for a writ and a supporting affidavit or unsworn declaration. These documents are never routine forms, but rather pleadings that detail in each case the uniqueness of the “immediate danger” or threat to the likelihood of the plaintiff’s recovery on the debt.
An officer must execute a writ issued by a Texas court without requiring a bond indemnifying him, and he is not liable for damages resulting from execution of a writ if he in good faith executes or attempts to execute the writ as provided by law. Tex. Civ. Prac. & Rem. Code § 7.003; see also Richardson v. Parker, 903 S.W.2d 801, 804 (Tex. App.—Dallas 1995, no writ). An officer is liable, however, for injury or loss resulting from his own negligence. Tex. Civ. Prac. & Rem. Code § 34.061. For further discussion of this topic, see section 27.23 in this manual.
[Sections 8.5 through 8.10 are reserved for expansion.]
II. Judicial Prejudgment Remedies
Prejudgment remedies are extraordinary remedies codified in Title 3 of the Civil Practices and Remedies Code, and their associated ancillary proceedings are governed by part VI of the Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code §§ 61.001–66.003; Tex. R. Civ. P. 592–734. Their use should be in strict compliance with prescriptions therein.
§ 8.11Prejudgment Garnishment Generally
§ 8.11:1Purpose and Use of Prejudgment Writ of Garnishment
Prejudgment garnishment is an extraordinary remedy by which a creditor (the plaintiff) can, before judgment, prevent a third party (the garnishee) from delivering any effects or paying any debt owed by the garnishee to a defendant debtor. Tex. Civ. Prac. & Rem. Code §§ 63.001–.008. If the garnishee is a corporation or a joint-stock company, after service of the writ the garnishee may not permit or recognize a sale or transfer of shares or an interest alleged to be owned by the defendant. Tex. Civ. Prac. & Rem. Code § 63.003. Both prejudgment and postjudgment garnishment remedies are governed by Tex. Civ. Prac. & Rem. Code §§ 63.001–.008 and Tex. R. Civ. P. 657–679. For a discussion of postjudgment garnishment, see part IV. in chapter 27 of this manual.
The Texas prejudgment garnishment statutes and rules meet federal constitutional requirements. Southwest Metal Fabricators v. Internacional de Aceros, S.A., 503 F. Supp. 76 (S.D. Tex. 1980); Lincoln Ten, Ltd. v. White, 706 S.W.2d 125 (Tex. App.—Houston [14th Dist.] 1986, no writ).
§ 8.11:3Availability of Prejudgment Garnishment
A prejudgment writ of garnishment is available if—
1.an original attachment has been issued; or
2.the plaintiff sues on the debt and makes an affidavit that—
a.the debt is just, due, and unpaid;
b.within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt; and
c.the garnishment is not sought to injure the defendant or the garnishee.
Tex. Civ. Prac. & Rem. Code § 63.001(1), (2). Observe that Tex. Civ. Prac. & Rem. Code § 63.001(3) is applicable only when the plaintiff has a valid, subsisting judgment it is seeking to enforce.
§ 8.11:4Risks to Creditor in Seeking Prejudgment Garnishment
As with all prejudgment remedies, caution must be used in seeking the writ of garnishment before judgment. Issuance of a writ before judgment may force a defendant out of business or may cause him severe economic loss, and the creditor’s attorney must be sure the client is aware of the risks involved and has assented to the procedure. A debtor may institute proceedings for wrongful garnishment in some circumstances. Significant federal constitutional issues may also be involved.
An application for a prejudgment writ of garnishment may be filed either at the commencement of a suit or at any time during its progress. Tex. R. Civ. P. 658.
§ 8.12:2Availability against Financial Institutions
Garnishment may not be issued against or served on a financial institution that has its principal office or a branch in Texas to collect a prospective money judgment against the financial institution before the judgment is final and all appeals have been foreclosed by law. Tex. Fin. Code § 59.007(a). “Financial institution” means a bank, savings association, or savings bank maintaining an office, branch, or agency office in this state. Tex. Fin. Code § 31.002(25).
§ 8.12:3Availability against Customer of Financial Institution
Prejudgment garnishment is available against a customer of a financial institution. Tex. Fin. Code §§ 59.007(b), 59.008.
A claim against a customer of a financial institution must be delivered or served as otherwise required or permitted by law at the address designated as the address of the registered agent of the financial institution in a registration filed with the secretary of state pursuant to Tex. Fin. Code § 201.102 (out-of-state financial institutions) or Tex. Fin. Code § 201.103 (Texas financial institutions). A claim against a customer of a financial institution that has complied with Tex. Fin. Code §§ 201.102, 201.103 will be ineffective as to the financial institution unless it is served or delivered to the registered address. However, the customer bears the burden of preventing or limiting the institution’s compliance by seeking an appropriate remedy, including a restraining order, injunction, protective order, or other appropriate remedy. If the financial institution has not filed a registration with the secretary of state pursuant to Tex. Fin. Code §§ 201.102, 201.103, the institution is subject to service or delivery of all claims against customers of the financial institution as otherwise provided by law. Tex. Fin. Code § 59.008.
The application must be supported by an affidavit of the plaintiff, his agent, his attorney, or another person having personal knowledge of relevant facts. It must meet all statutory requirements and must state grounds for issuing the writ and specific facts relied on by the plaintiff sufficient to warrant the required findings by the court. Two or more grounds for the writ may be stated conjunctively or disjunctively. Tex. R. Civ. P. 658. An application is at form 8-1 in this chapter. An amendment to the Civil Practices and Remedies Code authorizes the use of an unsworn declaration in lieu of an “affidavit required by statute or required by rule, order, or requirement adopted as provided by law.” Act of May 25, 2011, 82d Leg., R.S., ch. 847, § 1 (current version at Tex. Civ. Prac. & Rem. Code § 132.001). The statutory form for an unsworn declaration with its jurat is at form 19-5 in this manual. The unsworn declaration must (1) be in writing, (2) be subscribed by the person making the declaration as true under penalty of perjury, and (3) include a jurat in prescribed form. The substantial form of the required jurat is set forth in Tex. Civ. Prac. & Rem. Code § 132.001(d). The second requirement (subscription under penalty of perjury) appears to supplant an affidavit’s requirements showing affirmatively that it is based on personal knowledge, the facts sought to be proved would be “admissible in evidence” at a conventional trial, and the facts recited therein are “true and correct.”
§ 8.12:5Affidavit—Information and Belief or Personal Knowledge
An affidavit must be made on personal knowledge and must contain facts that would constitute admissible evidence. Facts may be stated on information and belief if the grounds for such belief are specifically stated. The trial court has discretion to determine whether an affidavit meets the “personal knowledge” requirement of Tex. R. Civ. P. 658. See Metroplex Factors, Inc. v. First National Bank, 610 S.W.2d 862, 865 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.); see also Hudler-Tye Construction, Inc. v. Pettijohn & Pettijohn Plumbing, Inc., 632 S.W.2d 219, 222 (Tex. App.—Fort Worth 1982, no writ). An affidavit not affirmatively stating the specific grounds for issuance and the specific acts of the defendant entitling the plaintiff to issuance of the writ will not support issuance of the writ. If the affidavit is made on information and belief, the grounds for that belief must be specifically stated. El Periodico, Inc. v. Parks Oil Co., 917 S.W.2d 777, 778–79 (Tex. 1996). The attorney should not execute the affidavit unless he has personal knowledge of relevant facts. See sections 8.3:2 and 19.17:3 in this manual. An affidavit is at form 8-2 in this chapter.
§ 8.12:6Statutory Requirements for Affidavit or Unsworn Declaration in Lieu Thereof
The affidavit or unsworn declaration in lieu thereof must state that—
1.the debt is just, due, and unpaid;
2.within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt; and
3.the garnishment is not sought to injure the defendant or the garnishee.
Tex. Civ. Prac. & Rem. Code § 63.001(2). The rule has not been amended to address unsworn declarations authorized by Tex. Civ. Prac. & Rem. Code § 132.001. Tex. Civ. Prac. & Rem. Code § 132.001.
The plaintiff is not required to prove as a matter of fact that the debtor does not have assets sufficient to satisfy the debt. The statute requires only that the plaintiff have no knowledge of any property owned by the defendant within the state sufficient to satisfy the debt. Tex. Civ. Prac. & Rem. Code § 63.001(2)(B), (3); cf. Black Coral Investments v. Bank of the Southwest, 650 S.W.2d 135, 136 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (trial court’s order quashing postjudgment garnishment was reversed when plaintiff made affidavit that defendant had not, within his knowledge, property in his possession within this state, subject to execution, sufficient to satisfy such judgment; statute does not expressly or impliedly state that plaintiff must prove such as matter of fact).
The fact that the affidavit fails to state that within the plaintiff’s knowledge the debtor does not possess property in Texas subject to execution sufficient to satisfy the debt does not give the debtor a claim for wrongful garnishment (although it may serve as a basis for quashing the writ on the garnishee’s motion). Cf. Canyon Lake Bank v. Townsend, 649 S.W.2d 809 (Tex. App.—Austin 1983, writ ref’d n.r.e.) (postjudgment garnishment case construing affidavit requirement identical to affidavit requirement for prejudgment garnishment under Tex. Civ. Prac. & Rem. Code § 63.001(2)(B)).
Significant defects in a garnisher’s affidavit may be waived by the garnishee if the garnishee fails to appear and answer. See Sherry Lane National Bank v. Bank of Evergreen, 715 S.W.2d 148, 150 (Tex. App.—Dallas 1986, writ ref’d n.r.e.).
A hearing must be held before a prejudgment writ of garnishment may issue. The hearing may be ex parte. Tex. R. Civ. P. 658.
§ 8.12:8Order for Prejudgment Garnishment
The court’s order must make specific findings of facts to support the statutory grounds found to exist. The order must also specify the maximum value of property or indebtedness that may be garnished and the amount of the bond required of the plaintiff. The court further must find the amount of bond required for the defendant to replevy. Unless the defendant exercises his option under Tex. R. Civ. P. 664, this amount must be the amount of the plaintiff’s claim, one year’s accrual of interest (if allowed by law), and the estimated costs of court. The court’s order may direct issuance of more than one writ at the same time, or in succession, to be sent to different counties. Tex. R. Civ. P. 658. An order is at form 8-3 in this chapter.
§ 8.13Other Garnishment Issues
§ 8.13:1Garnishee’s Duty to Raise Debtor’s Defenses
The garnishee has a duty to raise any of the defendant’s defenses to the garnishment of which he is aware. This duty is not discharged by notifying the defendant of the garnishment action. Southwest Bank & Trust Co. v. Calmark Asset Management, 694 S.W.2d 199, 200–01 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).
§ 8.13:2Bond for Prejudgment Garnishment
Before issuance of a prejudgment writ of garnishment, a bond payable to the defendant in the amount set by the court, with sufficient surety or sureties as provided by statute, must be filed by the party applying for the writ. After notice to the opposite party, before or after issuance of the writ, a motion may be filed to increase or reduce the amount of the bond. Tex. R. Civ. P. 658a. For detailed provisions covering the bond and hearing to reduce the amount of the bond, see Tex. R. Civ. P. 658a. A bond is at form 8-4 in this chapter.
§ 8.13:3Service of Writ on Garnishee and Defendant
Once the application, affidavit, and bond are filed, the case must be docketed in the name of the plaintiff as plaintiff and the garnishee as defendant, and the writ of garnishment must be served on the garnishee. Tex. R. Civ. P. 659. Copies of the writ, the application, accompanying affidavit(s), and the order must be served on the defendant as soon as practicable following service of the writ on the garnishee. Tex. R. Civ. P. 663a. The forms of the writ and notice to the defendant are prescribed in Tex. R. Civ. P. 661 and 663a. For a writ to be served on the garnishee, see form 8-5 in this chapter; for a notice to the defendant, see form 8-7. Form 8-6 is the officer’s return. In Walnut Equipment Leasing Co. v. J-V Dirt & Loam, 907 S.W.2d 912, 916 (Tex. App.—Austin 1995, writ denied), a postjudgment garnishment case, the court held that the garnisher must serve the debtor in accordance with Tex. R. Civ. P. 663a; failure to do so is fatal to the creditor’s garnishment action, even though the debtor may have actual notice of it. See also Mendoza v. Luke Furia Investments, Inc., 962 S.W.2d 650, 652 (Tex. App.—Corpus Christi 1998, no pet.) (holding garnishor to strict compliance with Tex. R. Civ. P. 663a’s requirements in serving postjudgment writ of garnishment); Hering v. Norbanco Austin I, Ltd., 735 S.W.2d 638, 641–42 (Tex. App.—Austin 1987, writ denied) (“We conclude that Rule 663a is unambiguous and means exactly what it says—the debtor must be served.”); contra Del-Phi Engineering Associates v. Texas Commerce Bank-Conroe, N.A., 771 S.W.2d 589, 592 (Tex. App.—Beaumont 1989, no writ) (debtor waived statutorily required notice by appearing at hearing on motion to dissolve writ of garnishment). The better practice is comply with rule 663a and serve the defendant with notice.
For discussion of service on a garnishee-financial institution, see section 27.59:2 in this manual.
It is recommended that, instead of serving the defendant personally or by e-mail, his copy of the application and affidavit be served by certified mail, return receipt requested, and by regular mail. The copy of the writ served on the defendant must include, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following statement:
To ________________, Defendant:
You are hereby notified that certain properties alleged to be owned by you have been garnished. If you claim any rights in such property, you are advised:
You have a right to regain possession of the property by filing a replevy bond. You have a right to seek to regain possession of the property by filing with the Court a motion to dissolve this writ.
Tex. R. Civ. P. 663a. Some court clerks provide additional copies of the writs with the notice language. Others do not; in that case, it is necessary to photocopy the writ and type the notice language on the face of the copy before serving it on the defendant. The notice at form 8-7 is to be used as a cover sheet only and not as a substitute for the writ with notice language included on it. These forms are usually prepared by the clerk of the court.
Although the debtor must be served with notice of the garnishment proceedings, the garnishee does not have standing to sue or to appeal based on a right of service belonging to the debtor. Sherry Lane National Bank v. Bank of Evergreen, 715 S.W.2d 148, 151–52 (Tex. App.—Dallas 1986, writ ref’d n.r.e.).
After service of the writ “the garnishee may not deliver any effects or pay any debt to the defendant.” Any such delivery or payment is void as to the amount of the debt, effects, shares, or interest necessary to satisfy the plaintiff’s demand. Tex. Civ. Prac. & Rem. Code § 63.003(a), (b).
At any time before judgment, the defendant may replevy all or part of the garnished property (or the proceeds from sale of the garnished property if it has been sold under order of the court) by posting bond. Tex. R. Civ. P. 664. The court must find in its order for issuance of a writ of garnishment the amount of bond required for the defendant to replevy. Tex. R. Civ. P. 658. This amount must be the amount of the plaintiff’s claim, one year’s interest if allowed by law on the claim, and the estimated costs of court, unless the defendant exercises his option under rule 664 to post bond in the amount of the value of the property, as estimated by the officer who levied the writ, plus one year’s interest at the legal rate. Tex. R. Civ. P. 658, 664. On reasonable notice (which may be less than three days), the amount or denial of the bond, the sufficiency of the sureties, or the estimated value of the property may be reviewed, on motion of either party, by the court that authorized issuance of the writ. Tex. R. Civ. P. 664. On motion by the defendant with reasonable notice to the opposing party (which may be less than three days), the defendant may move to substitute other property for the property garnished. Tex. R. Civ. P. 664.
§ 8.13:5Motion to Dissolve or Modify Writ
A defendant whose property or account has been garnished or any intervening party claiming an interest in garnished property may seek by sworn written motion to dissolve or modify the writ. Tex. R. Civ. P. 664a. But see Central Park Bank v. LeBlanc, 659 S.W.2d 872 (Tex. App.—San Antonio 1983, no writ), in which the court approved the unsworn motion of the garnishee to dissolve the writ, saying the error, if any, was harmless. The lack of a sworn motion was a pleading error that, unless controverted by motion, plea in abatement, or special exception, was waived.
The motion to dissolve or modify “shall admit or deny each finding of the order directing the issuance of the writ except where the movant is unable to admit or deny the finding, in which case movant shall set forth the reasons why he cannot admit or deny.” Tex. R. Civ. P. 664a. This requirement does not necessarily mean that the denial must appear on the face of the motion, or that each individual finding must be separately denied. See Glassman & Glassman v. Somoza, 694 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1985, no writ) (motion that set forth findings of court and attached affidavit that denied “the findings set out above” sufficient, because requirements of rule 664a met by reading motion and affidavit together); see also Metroplex Factors, Inc. v. First National Bank, 610 S.W.2d 862, 866–67 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.) (defendant’s motion to quash, which discussed court’s findings but did not specifically enumerate admissions or denials of findings, sufficient to comply with Tex. R. Civ. P. 664a).
§ 8.13:6Hearing on Motion to Dissolve or Modify
The motion to dissolve must be heard promptly, after reasonable notice to the plaintiff (which may be less than three days), and the issue must be determined not later than ten days after the motion is filed. The parties may agree to an extension of time. Filing a motion to dissolve stays further proceedings under the writ until after the hearing on the motion. Exceptions exist for perishable property. Tex. R. Civ. P. 664a.
§ 8.13:7Burden of Proof for Motion to Dissolve or Modify
The movant for dissolution or modification has the burden to prove that the reasonable value of the property garnished exceeds the amount necessary to secure the debt, interest for one year, and probable costs. The movant also has the burden to prove facts to justify substitution of property. Tex. R. Civ. P. 664a.
The plaintiff has the burden to prove the grounds relied on for issuance of the writ. Tex. R. Civ. P. 664a. Any failure to carry this burden with respect to each statutory ground will require the trial court to dissolve the writ. Huie-Clark Joint Venture v. American States Insurance Co., 629 S.W.2d 109, 110–11 (Tex. App.—Dallas 1981, writ ref’d n.r.e.).
§ 8.14Third-Party Rights to Garnished Property
Garnishment of a debt represented by a promissory note does not affect the rights of a holder in due course, even though the garnishment action occurred before the negotiation of the note. The debtor has the responsibility to protect himself by bringing into the garnishment case all claimants to the property to be garnished. Failure to do so may subject the debtor to double liability. Williams v. Stansbury, 649 S.W.2d 293, 296 (Tex. 1983) (purchaser of promissory note with holder-in-due-course status had right to demand that debtor pay note according to its terms and was not require to intervene in postjudgment garnishment proceeding in order to protect his rights; debtor had responsibility to bring into garnishment case all claimants to note in order to protect himself).
It has been held an abuse of discretion for the trial court to deny intervention in a garnishment proceeding to one who would be deprived of a substantial right to assert a security interest to the fund that is subject to garnishment. Apparel Contractors v. Vantage Properties, 620 S.W.2d 666, 668 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.) (postjudgment garnishment).
Note: Most Texas cases concerning wrongful garnishment are based on wrongful postjudgment garnishment. See section 27.71 in this manual.
A garnishment is wrongful if the facts set forth in the affidavit are false. Chandler v. Cashway Building Materials, Inc., 584 S.W.2d 950, 952 (Tex. Civ. App.—El Paso 1979, no writ) (postjudgment garnishment). However, even if the applicant for the writ swears falsely that he knows of no property in Texas possessed by the debtor subject to execution and sufficient to satisfy the debt, the debtor may not recover for wrongful garnishment unless he pleads and proves that he does in fact have nonexempt property in Texas sufficient to satisfy the debt and that the plaintiff knew as much before applying for the writ. King v. Tom, 352 S.W.2d 910, 913 (Tex. Civ. App.—El Paso 1961, no writ). But see Barr v. Cardiff, 75 S.W. 341 (Tex. Civ. App. 1903, writ ref’d) (ground alleged by plaintiff for suing out writ of garnishment did not in fact exist, and even though affiant believed its existence, writ held to be wrongfully sued out, resulting in actual damage to defendant). This analysis and result would apply for false statements in an unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001.
Damages may be recovered for wrongful garnishment for injuries proximately caused by the wrongful act. Aetna Casualty & Surety Co. v. Raposa, 560 S.W.2d 106, 110 (Tex. Civ. App.—Fort Worth 1977, writ dism’d by agr.).
Sequestration is the extraordinary remedy by which, before judgment, a creditor can possess the goods securing his debt or one claiming title to disputed property can effectively control possession while the dispute is justly settled. Tex. Civ. Prac. & Rem. Code §§ 62.001–.063.
Sequestration differs from attachment in that it requires the claimant to have an interest in the sequestered property. See Tex. Civ. Prac. & Rem. Code § 62.001. It is pursued as an ancillary remedy to an underlying claim.
Through use of the writ of sequestration, the property is physically (or constructively, in the case of real property) possessed by a sheriff or constable and placed in the court’s custody until the property interest claimed by the creditor can be established. The most common use of the writ is by commercial lenders whose loans are secured by security interests in personal property, such as automobiles, trucks, tractors and trailers, boats, and airplanes. And in the oil field, it may apply to loans secured by drilling rigs and drilling or oil field equipment. The Texas sequestration statutes and rules are located at Tex. Civ. Prac. & Rem. Code §§ 62.001–.063 and Tex. R. Civ. P. 696–716.
The Texas sequestration statutes and rules are constitutional. Marrs v. South Texas National Bank, 686 S.W.2d 675, 678 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.); Monroe v. General Motors Acceptance Corp., 573 S.W.2d 591, 594 (Tex. Civ. App.—Waco 1978, no writ).
§ 8.16:3Availability—Title, Possession, Enforcement of Lien
Sequestration is available to the plaintiff if he sues for title to or possession of real property, personal property, or fixtures or for the foreclosure or enforcement of a mortgage, lien, or security interest in the property and a reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county. Tex. Civ. Prac. & Rem. Code § 62.001(1), (2).
Sequestration is available to a plaintiff in a suit to try title to real property, to remove a cloud on the title, to foreclose a lien, or to partition real property if the plaintiff makes an oath that one or more of the defendants is a nonresident of Texas. Tex. Civ. Prac. & Rem. Code § 62.001(4); but see Shaffer v. Heitner, 433 U.S. 186 (1977) (minimum contacts required for sequestration of nonresident’s property).
Sequestration is also available to a plaintiff if he sues for title to or possession of property from which he has been ejected by force or violence. Tex. Civ. Prac. & Rem. Code § 62.001(3).
§ 8.16:5Claim on Personal Property Not Due
A writ of sequestration may be issued for personal property under a mortgage or lien even though the right of action on the mortgage or lien has not accrued. In these cases, final judgment may not be rendered against the defendant until the right of action has accrued. Tex. Civ. Prac. & Rem. Code § 62.003.
An application for a prejudgment writ of sequestration may be filed either at the commencement of the suit or at any time during its progress. Tex. R. Civ. P. 696.
The application must be made under oath and must set out specific facts that state the nature of the claim, the amount in controversy (if any), and the grounds for issuance of the writ. Tex. Civ. Prac. & Rem. Code § 62.022. Two or more grounds may be stated conjunctively or disjunctively. The property to be sequestered must be described with such certainty that it may be identified and distinguished from like property, and the value of each article and the county in which each article is located must be stated. Tex. R. Civ. P. 696. For an application and affidavit, see form 8-8 in this chapter. For the sequestration of motor vehicles, many courts and constables require the use of the vehicle identification number in order to accurately distinguish the vehicle to be sequestered from other vehicles of a similar make and model.
The application must be supported by an affidavit of the plaintiff, his agent, his attorney, or other persons having knowledge of relevant facts. Tex. R. Civ. P. 696. (The rule has not been amended to address unsworn declarations authorized by Tex. Civ. Prac. & Rem. Code § 132.001.) The application and affidavit must be made on personal knowledge and must state facts that would be admissible in evidence. However, the facts may be stated on information and belief if the grounds of such belief are specifically stated. Tex. R. Civ. P. 696. In this manual the application and affidavit are combined; see form 8-8 in this chapter.
See section 8.12:6 for a discussion on the use of an unsworn declaration in lieu of an affidavit authorized by Tex. Civ. Prac. & Rem. Code § 132.001. Attorneys generally should not execute an unsworn declaration in support of a client’s application. See sections 8.3:2 and 19.17:3 in this manual.
Before the writ can issue, the court must hold a hearing. Tex. R. Civ. P. 696. The hearing may be ex parte, but some courts require notification to the defendant (or his attorney, if known) by telephone, or otherwise, of the hearing. The only evidence typically considered by the court is the sworn pleadings. See section 8.19:2 below regarding service of the writ.
If a judge for the court in which the application is pending is unavailable, the party requesting sequestration may be able to have the order signed by another judge sitting in that county, subject to local rules. See, e.g., Tex. Gov’t Code § 74.094(a) (district and statutory county court judges have authority to conduct hearings and sign orders for other courts without transferal of case. The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter.).
No writ may issue except on written order of the court. Tex. R. Civ. P. 696. The court’s order must include—
1.specific findings of fact supporting the statutory grounds for the issuance of the writ found by the court to exist;
2.a clear description of each item of property to be sequestered so that it may be identified and distinguished from like property;
3.the value of each item of property to be sequestered;
4.the county in which each item is located;
5.the amount of bond required of the plaintiff (see section 8.18 below); and
6.the amount of bond required of the defendant to replevy (see section 8.21 below).
Tex. R. Civ. P. 696. The order may direct the issuance of several writs at the same time or in succession, to be sent to different counties. Tex. R. Civ. P. 696. For an order of sequestration, see form 8-9 in this chapter.
It is good practice to contact the sheriff or constable to whom the writ will be sent before drafting the order, so that the order may address any particular concerns or requirements of that office. For example, some constables require that the order specify that the property may be returned to the plaintiff without the requirement of a replevy bond, as long as the sequestration bond complies with the requirements of rule 708 of the Texas Rules of Civil Procedure. Additionally, some constables will allow the plaintiff to select the location for storage of the sequestered property during the ten-day replevy period, as long as the order contains language to that effect. There may be other additional concerns or requirements.
It is also advisable to obtain a certified copy of the order and the sequestration and replevy bonds, because some sheriffs and constables require production of these documents before the sequestered property will be released to the plaintiff.
§ 8.18Plaintiff’s Sequestration Bond
§ 8.18:1Requisites of Sequestration Bond
Before the writ can issue, the court must fix the amount of the applicant’s sequestration bond to the defendant. The bond is to be set in the amount that would adequately compensate the defendant if the plaintiff were to fail to prosecute the suit to effect and pay all damages and costs adjudged against him for wrongfully suing out the writ, including the elements of damages stated in Tex. Civ. Prac. & Rem. Code §§ 62.044, 62.045. Tex. R. Civ. P. 696. A bond is at form 8-4 in this chapter.
§ 8.18:2Conditions of Sequestration Bond
The bond must be conditioned that the plaintiff will prosecute his suit to effect and pay, to the extent of the penal amount of the bond, all damages and costs adjudged against the plaintiff in case it shall be decided that the writ of sequestration was wrongfully issued. Tex. R. Civ. P. 698.
The plaintiff may combine the conditions of the sequestration bond with the further conditions listed in rule 708 for a plaintiff’s replevy bond. If the plaintiff combines the sequestration and replevy bond language in its initial bond, the plaintiff will not later be required to give an additional bond to replevy unless the court orders otherwise. Tex. R. Civ. P. 698, 708. See section 8.22 below regarding replevy by the plaintiff.
§ 8.18:3Sureties and Modification of Bond
The bond must be executed by the surety or sureties as provided by statute, to be approved by the officer issuing the writ. Either party, before or after issuance of the writ, may file a motion to increase or decrease the amount of the bond or to question the sufficiency of the sureties; a hearing is required. Tex. R. Civ. P. 698.
The plaintiff should remember to include in any judgment, settlement, or other order disposing of the litigation language releasing the plaintiff and its surety from continued liability on the sequestration bond.
The writ must be directed “to the Sheriff or any Constable within the State of Texas” (not naming a specific county) and must command him to take the described property into his possession if it is found in his county and to keep it, subject to further order of the issuing court, unless it is replevied. Tex. R. Civ. P. 699. The writ must describe the property as it is described in the application or affidavits. On the face of the writ, “in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents,” the following notice must be displayed:
To __________, Defendant:
You are hereby notified that certain properties alleged to be claimed by you have been sequestered. If you claim any rights in such property, you are advised:
You have a right to regain possession of the property by filing a replevy bond. You have a right to seek to regain possession of the property by filing with the Court a motion to dissolve this writ.
Tex. R. Civ. P. 700a; see also Tex. Civ. Prac. & Rem. Code § 62.023; Tex. R. Civ. P. 699. A writ of sequestration is at form 8-10 in this chapter.
§ 8.19:2Service of Writ on Defendant
The defendant must be served with a copy of the writ, the application, accompanying affidavits, and the court’s order in “any manner provided for service of citation” or as provided for in Tex. R. Civ. P. 21a. Tex. R. Civ. P. 700a. Rule 21a provides for service electronically through the electronic filing manager, in person, by mail, by commercial delivery service, by fax, by e-mail, or by such other manner as the court in its discretion may direct. A notice, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, concerning replevy rights must be prominently displayed on the face of the copy of the writ served on the defendant. Service must be had on the defendant “as soon as practicable following the levy of the writ” and not before. Tex. R. Civ. P. 700a. The defendant should not be served until after sequestration has occurred. For a notice to the defendant, see form 8-11 in this chapter.
Practice Note: It is recommended that, instead of serving the defendant personally or by e-mail, his copy of the application and affidavit be served by certified mail, return receipt requested, and by regular mail.
§ 8.19:3Failure of Defendant to Surrender Property
Often the defendant is served contemporaneously with execution of the writ, because the defendant is the party likely to be in possession of the property to be sequestered. If the defendant fails or refuses to surrender the property to the officer executing the writ, the plaintiff should have the defendant served with a copy of the writ and order and proceed with a motion for contempt against the defendant for failure to abide by the court’s order. After notice and a hearing, the defendant may be held in contempt of court. Alternatively, the plaintiff may file a motion for show cause contemporaneously with the application for writ of sequestration and set a hearing on the motion, so that the defendant is immediately on notice that failure to attend the hearing and explain why the defendant did not surrender the property may result in a writ of attachment or capias writ.
If the plaintiff has reason to believe that the defendant will fail or refuse to surrender the property to be sequestered, the plaintiff should include in the order authorizing the issuance of the writ language directly ordering the defendant to surrender the property to the officer.
§ 8.19:4Errors in Affidavit, Bond, or Writ
Clerical errors in the affidavit, bond, writ of sequestration, or officer’s return may be amended. Application in writing must be made to the judge of the court in which the suit was filed. After notice to the opponent, the writ may be amended in the manner and on the terms the court authorizes. However, the amendment can reach only clerical errors and may not change or add to the grounds for sequestration stated in the affidavit. In addition, the amendment must appear to the judge to be in furtherance of justice. Tex. R. Civ. P. 700.
§ 8.20Dissolution or Modification of Writ of Sequestration
§ 8.20:1Motion to Dissolve Writ
After issuance of the writ, the defendant or any intervening party who claims an interest in the sequestered property may seek dissolution of the writ by sworn written motion. Reasonable notice (which may be less than three days) must be given to the plaintiff. A hearing on the defendant’s motion must be held promptly, and the issue must be determined not later than ten days after the filing of the motion unless the parties agree to an extension. The writ must be dissolved unless the plaintiff proves the specific facts alleged and the grounds relied on for its issuance—for example, immediate danger, ejectment by force or violence, or nonresidence of the defendant. Tex. R. Civ. P. 712a; see Tex. Civ. Prac. & Rem. Code §§ 62.001, 62.041–.043.
§ 8.20:2Motion to Reduce Amount Sequestered
The movant may also seek to reduce the amount of property sequestered if the total amount described and authorized by the court’s order exceeds the amount necessary to secure the plaintiff’s claim (plus interest for one year, if allowed by law, and costs). The burden of proof to show excessive property sequestered is on the movant. Tex. R. Civ. P. 712a.
The filing of the motion stays any further proceeding under the writ (except for orders concerning the care, preservation, or sale of perishable property) until determination of the issue after a hearing. Unless the parties otherwise agree, the motion must be promptly heard (after reasonable notice to the plaintiff, which may be less than three days), and the issue must be determined not later than ten days after filing. The court may determine the issue on the basis of uncontroverted affidavits “setting forth such facts as would be admissible in evidence.” Otherwise the parties must submit evidence. Tex. R. Civ. P. 712a; Tex. Civ. Prac. & Rem. Code §§ 62.041–.043.
If the writ is dissolved, the action proceeds as though no writ had been issued, except that the defendant’s cause of action for damages (if any) for wrongful sequestration is a compulsory counterclaim. Tex. Civ. Prac. & Rem. Code §§ 62.043, 62.044. In addition to other damages, the defendant may recover reasonable attorney’s fees incurred in dissolution of the writ. Tex. Civ. Prac. & Rem. Code § 62.044. If the sequestered personalty is consumer goods, the defendant is entitled to recover, in addition to reasonable attorney’s fees, the greater of $100, the finance charge contracted for, or actual damages. These damages may not be awarded if the plaintiff shows that his failure to prove his specific allegations was the result of a bona fide error including proof that he used reasonable procedures to avoid such error. Tex. Civ. Prac. & Rem. Code § 62.045. The right to seek dissolution of the writ is cumulative of the defendant’s right to replevy. The filing of the motion stays any further proceedings under the writ until a hearing on the motion is had and the motion is ruled on. Tex. Civ. Prac. & Rem. Code § 62.041. Presumably the defendant may replevy if the motion is denied.
§ 8.21Defendant’s Right to Replevy Sequestered Property
If the sequestered property has not been claimed, replevied, or sold, the defendant may replevy all or part of the property at any time before judgment. If the property has been sold by court order, the defendant can replevy the proceeds of the sale. Tex. R. Civ. P. 701.
To replevy either the property itself or the sale proceeds, the defendant first must give a bond, with sufficient sureties to be approved by the officer who levied the writ, payable to the plaintiff in an amount fixed by the court’s order. Tex. R. Civ. P. 701.
On reasonable notice (which may be less than three days) to the opposing party, either party may challenge the amount of the bond, the denial of the bond, the sufficiency of the sureties, or the estimated value of the property, before the court that authorized issuance of the writ. Tex. R. Civ. P. 701.
§ 8.21:4Condition of Bond on Personalty
If the property to be replevied be personal property, the condition of the bond shall be that the defendant will not remove the same out of the county, or that he will not waste, ill-treat, injure, destroy, or dispose of the same, according to the plaintiff’s affidavit, and that he will have such property, in the same condition as when it is replevied, together with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof, or the difference between its value at the time of replevy and the time of judgment and of the fruits, hire or revenue of the same in case he shall be condemned to do so.
§ 8.21:5Condition of Bond on Realty
If the property to be replevied is real estate, the condition of the defendant’s bond must be that he will not injure the property and that he will pay the value of any rents generated by the real estate if he is required to do so. Tex. R. Civ. P. 703.
§ 8.21:6Effect of Adverse Judgment
If the suit is decided against the defendant, judgment must be rendered against all the obligors on the defendant’s bond, jointly and severally, for the value of the property replevied (as of the date of the execution of the replevy bond) and the value of the fruits, hire, revenue, or rent derived from it. Tex. R. Civ. P. 704.
§ 8.22Plaintiff’s Replevy Bond
§ 8.22:1Plaintiff’s Right to Replevy Sequestered Property
The plaintiff may replevy the property if the defendant has not done so within ten days after levy and service of the writ of sequestration. Tex. R. Civ. P. 708. To replevy, the plaintiff must post a replevy bond payable to the defendant. The purpose of the replevy bond is separate from that of the sequestration bond, and the replevy bond is intended to guarantee that the plaintiff will have the property in the same condition to abide the decision of the court. Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex. 1965).
§ 8.22:2Conditions of Plaintiff’s Replevy Bond
For personal property, the conditions of the bond must be that the plaintiff—
1.will hold the sequestered property in the same condition as received, together with the value of its fruits, hire, or revenue until final decision of the court; and
2.will pay either the value of the personal property or the difference between its value at the time of replevy and the time of judgment (regardless of the cause of the difference in value, and of the fruits, hire, or revenue of the property in case it is required).
If realty is sequestered, the plaintiff must not injure the property, and he must pay the value of the rents of the same if he is later ordered to do so. Tex. R. Civ. P. 708.
The plaintiff may combine its replevy bond with the sequestration bond in order to avoid the posting of two bonds, unless the court orders otherwise. See section 8.18:2 above regarding the posting of a combined bond.
§ 8.22:3Notice and Review of Plaintiff’s Replevy Bond
As in the case of the defendant’s replevy bond, both parties have the right on reasonable notice (which may be less than three days) to prompt judicial review of the amount of the bond, the denial of the bond, the sufficiency of the sureties, and the estimated value of the property. The replevy bond must be filed with the constable. Tex. R. Civ. P. 708. A plaintiff’s replevy bond is at form 8-13 in this chapter.
§ 8.22:4Release of Plaintiff’s Replevy Bond
The plaintiff should remember to include in any judgment, settlement, or other dispositive order language releasing the plaintiff and its surety from continued liability on the replevy bond.
§ 8.23Emergency Sale of Perishable Goods after Sequestration
If after ten days from levy of the writ of sequestration the defendant has not replevied the property and (1) either the plaintiff or the defendant has filed a written affidavit that all or part of the property is likely to be wasted, destroyed, or greatly depreciated in value by continued retention and (2) the officer having possession of the property has certified to the truth of the affidavit, on presentation of the affidavit and certificate, the judge must order the sale of the property or of the portion of the property that is likely to be wasted, destroyed, or depreciated in value by retention. Either party may replevy the property before the sale. Tex. R. Civ. P. 710. Forms in this chapter for an emergency sale are at forms 8-14 (application), 8-15 (affidavit), and 8-16 (order).
If a writ of sequestration is dissolved, any action for wrongful sequestration must be brought as a compulsory counterclaim. Tex. Civ. Prac. & Rem. Code § 62.044(a). The creditor is guilty of wrongful sequestration if he has obtained a prejudgment writ of sequestration, seized the property, and then voluntarily dismissed the suit without returning the property to the debtor. In that case, the debtor has a right to institute an independent action to recover damages suffered by reason of the wrongful sequestration. Moreover, a voluntary dismissal is a final judgment in favor of the debtor, and the debtor is entitled to return of the property or a judgment against all the obligors on the replevy bond. See Burnett Trailers, Inc. v. Polson, 387 S.W.2d 692, 694–95 (Tex. Civ. App.—San Antonio 1965, writ ref’d n.r.e.).
A wrongful sequestration action may allow the debtor to recover actual and exemplary damages and attorney’s fees or, for wrongful sequestration of consumer goods, attorney’s fees and the greater of $100, the finance charge contracted for, or actual damages. Tex. Civ. Prac. & Rem. Code §§ 62.044–.045. At least one court has held that one claiming wrongful sequestration may recover damages, even though the claimant suffered no actual damages and never lost possession of the property. See Callaway v. East Texas Government Credit Union, 619 S.W.2d 411, 414 (Tex. Civ. App.—Tyler 1981, writ ref’d n.r.e.).
§ 8.25:1Purpose and Use of Attachment
Attachment is an extraordinary remedy allowing a creditor to seize the debtor’s property to secure payment of a probable judgment on an otherwise unsecured debt. Attached property is held in the court’s custody to be available for execution if the plaintiff obtains a judgment in the underlying cause. See generally Tex. Civ. Prac. & Rem. Code §§ 61.001–.082.
The Texas attachment statutes have not been reviewed for due-process compliance in any recently published opinion.
Strategically, attachment may be used against a debtor—
1.to prevent a debtor from alienating, destroying, or removing property from the jurisdiction, which would frustrate recovery on the debt; or
2.to obtain jurisdiction over a nonresident debtor who has property located within the jurisdiction. However, minimum contacts between the defendant and the foreign state must be found in order to confer in personam jurisdiction over the debtor. See Shaffer v. Heitner, 433 U.S. 186 (1977) (sequestration).
§ 8.25:4Property That May Be Attached
Only property subject to levy under a writ of execution may be attached. Tex. Civ. Prac. & Rem. Code § 61.041. The property need not be in the debtor’s possession to be attached. See Briggs v. Briggs, 227 S.W. 511, 512 (Tex. Civ. App.—Texarkana 1921, no writ) (person in possession of two bales of cotton, holding bales as security for money owed him by owner of bales, had no right to resist levy under writ of attachment solely on ground that property had been pledged to hiim and had been delivered into his possession).
An application for a writ of attachment may be filed at the commencement of a suit or at any time during its progress. Tex. R. Civ. P. 592.
§ 8.25:6Requirements Generally
A writ of attachment may issue if three general conditions and any one of nine specific conditions (see section 8.25:7 below) occur. The general conditions are that—
1.the defendant is justly indebted to the plaintiff;
2.the attachment is not sought to injure or harass the defendant; and
3.without the attachment the plaintiff’s debt would be lost.
Tex. Civ. Prac. & Rem. Code § 61.001. The “indebtedness” can be based in tort, and the amount in controversy need not be liquidated, if personal service on the defendant cannot be effected within the state. Tex. Civ. Prac. & Rem. Code § 61.005. Otherwise, attachment is not available for a tort action, and the amount in controversy must be liquidated. Cleveland v. San Antonio Building & Loan Ass’n, 223 S.W.2d 226, 228 (Tex. 1949).
In addition to meeting the general requirements set out in section 8.25:6 above, an applicant for a writ of attachment must show at least one of the following nine specific grounds:
1.The defendant is not a resident of Texas or is a foreign corporation or is acting as such (but see section 8.25:3 above regarding minimum contacts).
2.The defendant is about to move from Texas permanently and has refused to pay or secure the debt due the plaintiff.
3.The defendant is in hiding so that ordinary process of law cannot be served on him.
4.The defendant has hidden or is about to hide his property for the purpose of defrauding his creditors.
5.The defendant is about to remove his property from Texas without leaving an amount sufficient to pay his debts.
6.The defendant is about to remove all or part of his property from the county in which the suit is brought with the intent to defraud his creditors.
7.The defendant has disposed of or is about to dispose of all or part of his property with the intent to defraud his creditors.
8.The defendant is about to convert all or part of his property into money for the purpose of placing it beyond the reach of his creditors.
9.The defendant owes the plaintiff for property obtained by the defendant under false pretenses.
Tex. Civ. Prac. & Rem. Code § 61.002.
§ 8.25:8Availability against Financial Institutions
An attachment may not be issued against or served on a financial institution that has its principal office or a branch in Texas to collect a prospective money judgment against the financial institution before the judgment is final and all appeals have been foreclosed by law. Tex. Fin. Code § 59.007(a). “Financial institution” means “a bank, savings association, or savings bank maintaining an office, branch, or agency office in this state.” Tex. Fin. Code § 31.002(25).
§ 8.25:9Availability against Customer of Financial Institution
Attachment is available against a customer of a financial institution. Tex. Fin. Code §§ 59.007(b), 59.008.
A claim against a customer of a financial institution must be delivered or served as otherwise required or permitted by law at the address designated as the address of the registered agent of the financial institution in a registration filed with the secretary of state pursuant to Tex. Fin. Code § 201.102 (out-of-state financial institutions) or Tex. Fin. Code § 201.103 (Texas financial institutions). A claim against a customer of a financial institution that has complied with Tex. Fin. Code §§ 201.102, 201.103 will be ineffective as to the financial institution unless it is served or delivered to the registered address. However, the customer bears the burden of preventing or limiting the institution’s compliance by seeking an appropriate remedy, including a restraining order, injunction, protective order, or other appropriate remedy. If the financial institution has not filed a registration with the secretary of state pursuant to Tex. Fin. Code §§ 201.102, 201.103, the institution is subject to service or delivery of all claims against customers of the financial institution as otherwise provided by law. Tex. Fin. Code § 59.008.
The statutes governing attachment do not provide for the use of an application for a writ of attachment. The writ is issued instead on the basis of one or more affidavits alone. The rules of procedure, however, require an application and hearing. See Tex. R. Civ. P. 592. The application requires an affidavit, but in a supporting capacity; an affidavit is not sufficient in itself.
§ 8.26:2Requisites of Application
The application must comply with all statutory requirements and must state the grounds for issuing the writ and the specific facts relied on by the plaintiff to warrant the required findings by the court. The grounds may be stated conjunctively or disjunctively. The application must be made on personal knowledge and must “set forth such facts as would be admissible in evidence,” but the facts may be based on information and belief if the grounds are specified. The application must be supported by one or more affidavits (see section 8.26:3 below). Tex. R. Civ. P. 592. An application for a writ of attachment is at form
8-17 in this chapter, and an affidavit is at form 8-18.
One or more affidavits must support an application for a writ of attachment filed with the court. Affidavits may be made by the plaintiff, the plaintiff’s agent, other persons with “knowledge of relevant facts,” or the plaintiff’s attorney, but attorneys should be extremely wary of making the affidavit, as discussed in section 19.17:3 in this manual. Like the application, affidavits “shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence; provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated.” Tex. R. Civ. P. 592. (The rule has not been amended to address unsworn declarations authorized by Tex. Civ. Prac. & Rem. Code § 132.001.) The affidavit must recite the statutory general and appropriate specific grounds, which are listed in sections 8.25:6 and 8.25:7 above, and must state the amount of the demand. Tex. Civ. Prac. & Rem. Code § 61.022. An affidavit is at form
8-18 in this chapter.
The applicant could use an unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001 in lieu of an affidavit. See section 8.12:6 for a discussion of the use of an unsworn declaration in lieu of an affidavit authorized by Tex. Civ. Prac. & Rem. Code § 132.001.
Before a writ of attachment may issue, the court must hold a hearing (which may be ex parte) on the plaintiff’s application for the writ. Tex. R. Civ. P. 592. If the plaintiff prevails at the hearing, the court may issue a written order authorizing issuance of the writ.
No writ of attachment may issue except on written order of the court, which must recite specific findings of fact to support the statutory grounds. The court must specify the maximum value of property that may be attached and the amount of bond required of the plaintiff. The order must require that the attached property be kept safe and preserved subject to further orders of the court. The court also must state the amount of bond required of the defendant to replevy. Tex. R. Civ. P. 592. An order is at form 8-19 in this chapter.
§ 8.26:6Sheriff’s and Clerk’s Responsibilities
The sheriff or constable levies on the property specified in the writ of attachment that is owned by the defendant and found in the officer’s jurisdiction. When levying on the property, the officer either takes the goods and retains them or, in the case of real property, places an endorsement on the writ and files it with the county clerk in the county in which the property is located. The clerk records the attachment in the appropriate records. Tex. Civ. Prac. & Rem. Code § 61.043; Tex. Prop. Code § 12.012.
§ 8.27Plaintiff’s Bond for Attachment
The plaintiff must file with the officer authorized to issue a writ a bond payable to the defendant in an amount fixed by the court’s order. The bond must be in an amount that, in the court’s opinion, will adequately compensate the defendant if the plaintiff does not prosecute the suit to effect and that will cover all damages and costs that may be adjudged against the plaintiff for wrongfully suing. Tex. R. Civ. P. 592a. For an attachment bond, see form 8-4 in this chapter.
The bond must be backed by sufficient surety or sureties as provided by statute. Tex. R. Civ. P. 592a; see Tex. Civ. Prac. & Rem. Code § 61.023 (requiring “two or more good and sufficient sureties”). But see Tex. Ins. Code §§ 3503.001–.005 (allowing guaranty solely by a surety company provided reinsurance requirements are met). The officer issuing the writ must approve the choice of sureties. The bond must be conditioned that the plaintiff will prosecute the suit to effect and pay to the extent of the penal amount of the bond all damages and costs that may be adjudged for wrongfully suing out the writ of attachment. Tex. R. Civ. P. 592, 592a. Certain governmental entities are exempt from bond requirements. Tex. Civ. Prac. & Rem. Code § 6.001.
After notice to the opposite party, either before or after issuance of the writ, either the defendant or the plaintiff may file a motion to increase or reduce the amount of the bond or to question the sufficiency of the bond’s sureties. On hearing the motion, the court will enter an order on the final amount of the bond or the sufficiency of the bond’s sureties. Tex. R. Civ. P. 592a.
The writ of attachment is to be directed to any sheriff or constable within Texas. It commands the officer to attach and hold in that officer’s county the defendant’s property of a reasonable value in approximately the amount fixed by the court, unless the defendant has replevied it. Tex. R. Civ. P. 593. The form of the writ is contained in Tex. R. Civ. P. 594, 598a. See form 8-20 in this chapter.
§ 8.28:2Service of Writ on Defendant
As soon as practicable following levy of the writ, the defendant must be served with copies of the application, affidavits, orders of the court, and writ of attachment. The defendant may be served in any manner prescribed for service of citation or as provided in Tex. R. Civ. P. 21a. The writ served on the defendant must display on its face, in ten-point type and in a manner calculated to advise a reasonably attentive person of its contents, the following pronouncement:
To __________, Defendant:
You are hereby notified that certain properties alleged to be owned by you have been attached. If you claim any rights in such property, you are advised:
You have a right to regain possession of the property by filing a replevy bond. You have a right to seek to regain possession of the property by filing with the Court a motion to dissolve this writ.
Tex. R. Civ. P. 598a. The defendant should not be served before attachment has occurred. A notice of attachment and an officer’s return are at forms 8-21 and 8-22 in this chapter.
Practice Note: It is recommended that, instead of serving the defendant personally or by e-mail, his copy of the application and affidavit be served by certified mail, return receipt requested, and by regular mail.
§ 8.28:3Errors in Affidavit, Bond, or Writ
Clerical errors in the affidavit, bond, writ of attachment, or return may be corrected by amendment. Application must be made in the court in which the suit was filed, and, after notice to the opponent, the writ may be amended in the manner that the court authorizes. However, the amendment can reach only clerical errors and cannot add to or change the grounds for attachment as stated in the affidavit. In addition, the amendment must appear to the court “to be in furtherance of justice.” Tex. R. Civ. P. 609.
§ 8.29Defendant’s Rights in Attached Property
If the attached property has not been claimed or sold, the defendant may replevy all or part of it at any time before judgment or may recover the proceeds from any sale made under court order. To replevy, the defendant must give a bond payable to the plaintiff with sufficient surety or sureties as provided by statute; the sureties are to be approved by the officer who levied under the writ. The amount of the defendant’s bond must be—
1.the amount fixed by the court in its original order granting the plaintiff’s writ of attachment (the amount of the plaintiff’s claim, one year’s accrual of interest if allowed by law on the claim, and the estimated costs of court); or
2.at the defendant’s option, the value of the property sought to be replevied (the value to be estimated by the officer) plus one year’s interest at the legal rate from the date of the bond.
The bond must also be conditioned that the defendant will satisfy, to the extent of the penal amount of the bond, any judgment that may be rendered. Tex. R. Civ. P. 592, 599.
§ 8.29:2Defendant’s Right to Substitute Property
On reasonable notice to the plaintiff, which may be less than three days, the defendant may apply to the court for substitution of other property of equal value for the attached property. If the court considers the values of the properties equal, it may authorize substitution, and personal property thus released from attachment must be delivered to the defendant. Liens resulting from the original attachment order on the released property are terminated, and the substituted property is deemed to have been attached from the date of the levy on the property originally attached. If liens have been affixed to property since the original date of levy, that property may not be used for substitution. Tex. R. Civ. P. 599.
§ 8.30Dissolution or Modification of Writ of Attachment
A defendant whose property has been attached or any intervening party who claims an interest in the property may by sworn written motion seek to vacate, dissolve, or modify the writ and the order directing its issuance for any extrinsic or intrinsic grounds or cause. After reasonable notice to the plaintiff, which may be less than three days, the motion must be heard promptly. Each issue presented by the motion must be decided not later than ten days after filing of the motion. Except for orders concerning the care, preservation, or sale of perishable property, the filing of the motion stays any further proceedings under the writ until a hearing occurs and every issue is determined. Tex. R. Civ. P. 608.
At the hearing the plaintiff is required to prove the grounds for the issuance of the writ, or it will be dissolved. The court, however, may modify both its previous order granting the writ and the writ itself. The movant, though, bears the burden of proving that the reasonable value of the attached property exceeds the amount necessary to secure the debt, interest for one year, and probable costs. The movant must also prove that the facts justify the substitution of property if substitution is desired. The court may base its determination on uncontroverted affidavits that present facts otherwise admissible in evidence. If the affidavit is controverted, evidence must be presented. Tex. R. Civ. P. 608.
The court may make orders as justice requires, including orders concerning the care, preservation, or disposition of the property (or its proceeds if it has been sold). If the movant has given a replevy bond, an order vacating or dissolving the writ vacates the bond and discharges the sureties. If the court modifies its order or the writ, it can make further orders with respect to the bond consistent with the modification. Tex. R. Civ. P. 608.
§ 8.31Emergency Sale of Perishable Goods after Attachment
§ 8.31:1Availability of Emergency Sale
The court may order the sale of personal property that has been attached but not claimed or replevied if the property is in danger of serious and immediate waste or decay or if retention of the property until trial will cause such an expense or deterioration in value as to greatly lessen the amount likely to be realized from the property. Tex. R. Civ. P. 600.
§ 8.31:2Notice, Hearing, and Order
In determining whether the attached property is perishable and should therefore be sold, the court may consider affidavits and oral testimony. The court could consider an unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001 in lieu of an affidavit. If the court determines that the property should be sold, it may issue a preliminary order directing the sheriff or constable to sell it for cash at public auction. The court in its discretion may give the parties notice of the sale or may order the sale without notice if the urgency of the situation demands it. Tex. R. Civ. P. 601. Forms in this chapter for an emergency sale are at forms 8-23 (application), 8-24 (affidavit), and 8-25 (order) in this chapter may be used for an emergency sale.
An applicant for an order of sale who is not the defendant must file a bond with the court payable to the defendant. The bond must have two or more court-approved “good and sufficient sureties” responsible to the defendant for damages the defendant sustains if the sale is illegally and unjustly applied for or made. Tex. R. Civ. P. 602.
The court-ordered sale of the perishable property is to be conducted in the same manner as sales of personal property under execution. Tex. R. Civ. P. 603; see also Tex. R. Civ. P. 649, 650. Under the proper circumstances, however, the court may order that both the sale and its advertisement occur earlier than ten days, ordinarily required under rule 650, in which case notice shall be as directed by the court’s order. Tex. R. Civ. P. 603. The officer making the sale must promptly give the proceeds to the court clerk and must make a written, signed return of the order of sale, detailing the events of the sale and itemizing the expenses attending it. Tex. R. Civ. P. 604.
§ 8.32Postjudgment Disposal of Attached Property
If the plaintiff succeeds in the suit, the attachment lien on the debtor’s personal property is foreclosed as in the case of other liens. The court will direct that the proceeds of any personalty already sold be applied to satisfaction of the judgment. If attached personalty is still in the hands of the attaching officer, the court will order its sale to satisfy the judgment. Tex. Civ. Prac. & Rem. Code § 61.062.
§ 8.32:2Replevied Personal Property
If attached personal property has been replevied by the defendant, the judgment is taken against the defendant and sureties on the replevy bond for the amount of the judgment, interest, and costs, or for the value of the property replevied and interest, according to the terms of the defendant’s replevy bond. Tex. Civ. Prac. & Rem. Code § 61.063.
If realty has been attached, the court will order its sale to satisfy the judgment. No order or decree foreclosing the attachment lien is necessary, but the judgment must briefly recite the issuance and levy of the attachment. This recital will be sufficient to preserve the attachment lien. The purchaser of real property sold under execution to satisfy the judgment will be vested with the same estate in the property that the defendant in attachment possessed at the time the writ of attachment was levied. Tex. Civ. Prac. & Rem. Code § 61.062.
§ 8.33:1Purpose and Use of Injunctive Relief
Injunction is an extraordinary remedy that may be used to prevent irreparable injury to personal or property rights when legal remedies are not available. See generally Tex. Civ. Prac. & Rem. Code §§ 65.001–.045. Injunction is a court’s command that a party act or refrain from acting in a specific way. See Passel v. Fort Worth Independent School District, 440 S.W.2d 61, 63 (Tex. 1969), on appeal after remand, 453 S.W.2d 888 (Tex. Civ. App.—Fort Worth 1970, writ ref’d n.r.e.), cert. denied, 402 U.S. 968 (1971). In collection matters, the main purpose of the injunction is to restrain the defendant in pending litigation from violating the plaintiff’s rights in a manner that would render a judgment ineffectual. See Tex. Civ. Prac. & Rem. Code § 65.011(2). Defendants pursued by creditors often try to dispose of assets before a judgment is rendered.
§ 8.33:2Bases for Injunctive Relief
Courts may issue injunctions under express statutory authority or general principles of equity. See Tex. Const. art. V, §§ 8, 16; Tex. Civ. Prac. & Rem. Code §§ 65.001–.015; Tex. Civ. Prac. & Rem. Code § 65.001 (“The principles governing courts of equity govern injunction proceedings if not in conflict with [chapter 65] on injunctions or other law”). Injunctive relief is designed primarily to grant relief against the threatened violation of a right when legal remedies are inadequate. The existence of a right violated is a prerequisite to the granting of an injunction, and, where it is clear that the complainant does not have the right that he claims, he is not entitled to an injunction. See Garland v. Shepherd, 445 S.W.2d 602, 604 (Tex. Civ. App.—Dallas 1969, no writ) (writ of injunction dismissed when plaintiff’s alleged right to be protected was dependent on several contingencies and therefore unvested). In addition to the general injunction statute, many other statutes provide for injunctive relief in specific situations.
§ 8.33:3Types of Injunctive Relief
Injunctions may be either prohibitory—prohibiting certain acts—or mandatory—commanding a party to act. Injunctive relief proceeds in stages and is distinguished by the time relief is issued and the duration of the relief. The forms of injunctive relief are discussed below.
Temporary Restraining Order: A temporary restraining order expires at the end of the period set by its own terms, not to exceed fourteen days, but the court may extend the order for one additional period and may grant additional extensions if the request is unopposed. It may be issued without notice to the adverse party and without a hearing if otherwise “immediate and irreparable injury, loss, or damage will result to the applicant.” Every restraining order shall include an order setting a certain date for hearing on the temporary or permanent injunction sought. Tex. R. Civ. P. 680.
Temporary Injunction: A temporary injunction operates until disposition of the case on the merits, and it replaces any existing temporary restraining order. Tex. R. Civ. P. 680. It may not be issued without notice to the adverse party. Tex. R. Civ. P. 681. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe, in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only on the parties to the action, their officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought. Tex. R. Civ. P. 683.
Permanent Injunction: A permanent injunction may operate indefinitely or until an appointed date. It is part of the final judgment.
Permanent injunctions are rarely sought as ultimate relief in collection matters, so this part of the manual will focus on the temporary injunction and, to a lesser extent, the temporary restraining order.
§ 8.34Substantive Requirements for Injunctive Relief
Injunctive relief is proper if the applicant can demonstrate the following four grounds for relief: (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Hues v. Warren Petroleum Co., 814 S.W.2d 526, 529 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (citing Priest v. Texas Animal Health Commission, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1990, no writ)). The grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court, and the trial court’s action will not be disturbed on appeal absent a clear abuse of discretion. Priest, 780 S.W.2d at 875. As a prerequisite to the granting of an injunction, the pleadings and prayer must state the particular form of injunction sought and the prayer must specify the type of judgment sought. Warren Petroleum, 814 S.W.2d at 529–30 (citing American Precision Vibrator Co. v. National Air Vibrator Co., 764 S.W.2d 274, 279 (Tex. App.—Houston [1st Dist.] 1988, no writ; Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608, 611 (Tex. App.—Houston [14th Dist.] 1984, no writ)).
§ 8.34:1Underlying Cause of Action
A plaintiff must have a genuine cause of action against a defendant to be entitled to injunctive relief. Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).
§ 8.34:2Probable Recovery and Probable Injury
For a temporary injunction, the applicant must show the probability of recovering in the underlying suit and of suffering an injury in the interim unless the injunction is granted. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 528 (Tex. 1975). It is not necessary to show that the plaintiff will ultimately prevail in the litigation. Southwestern Bell, 526 S.W.2d at 528; Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183, 196 (Tex. 1964). The threat of injury to the plaintiff must be supported by evidence, not merely by speculation or conjecture. See Dallas General Drivers, Warehousemen & Helpers v. Wamix, Inc., 295 S.W.2d 873, 879 (Tex. 1956); Texas Industrial Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 532 (Tex. App.—Houston [1st Dist.] 1992, no writ).
A showing of irreparable injury is one of the requirements for issuance of a temporary restraining order. Tex. R. Civ. P. 680. “Irreparable injury” is also an independent ground for obtaining a temporary injunction. Tex. Civ. Prac. & Rem. Code § 65.011(5). At least one court, however, has disapproved of granting a temporary injunction based on this ground, because it seemed to eliminate the requirement that the plaintiff had no adequate remedy at law. See Speedman Oil Co. v. Duval County Ranch Co., 504 S.W.2d 923, 929 n.1 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.).
§ 8.34:4Inadequate Legal Remedy
The applicant must allege and prove that no adequate remedy at law can prevent or reduce the threatened injury. Texas Industrial Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 532 (Tex. App.—Houston [1st Dist.] 1992, no writ). Legal remedies are inadequate if the defendant will be unable to provide damages, such as when a defendant is rapidly depleting assets from which damages would be paid. R.H. Sanders Corp. v. Haves, 541 S.W.2d 262, 265–66 (Tex. Civ. App.—Dallas 1976, no writ) (defendant was stripping corporation of its assets).
To preclude an equitable remedy, an available legal remedy must be “as practical and efficient to the ends of justice as the equitable remedy.” Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 688 (Tex. Civ. App.—Dallas 1976, writ ref’d n.r.e.). By this principle, the remedy of sequestration might not preclude injunctive relief in a suit for title or possession of specific property. See Surko Enterprises v. Borg-Warner Acceptance Corp., 782 S.W.2d 223 (Tex. App.—Houston [14th Dist.] 1989, no writ).
§ 8.34:5Interrelationship of Inadequate Legal Remedy and Irreparable Injury
The relationship between the grounds of inadequate legal remedy and irreparable injury is ambiguous. Some courts recite the two grounds conjunctively, suggesting that the applicant must prove both grounds. Ballenger v. Ballenger, 694 S.W.2d 72, 76 (Tex. App.—Corpus Christi 1985, no writ); see also Texas Industrial Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 532 (Tex. App.—Houston [1st Dist.] 1992, no writ). Other courts pair the two grounds disjunctively. See Houck v. Kroger Co., 555 S.W.2d 803, 805 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). Still other courts try to have it both ways. See Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex. Civ. App.—Corpus Christi 1976, no writ) (“One seeking injunctive relief must plead irreparable injury and/or that he has no adequate remedy at law, and/or that irreparable injury is threatened.”). The better practice is to prove both grounds.
An injunction will not be granted unless the threatened injury to the plaintiff outweighs the harm that the injunction might bring to the defendant or if granting it would “disserve the public interest.” Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975); see also Viking Homes, Inc. v. Larkin, 452 S.W.2d 25, 28 (Tex. Civ. App.—Houston [14th Dist.] 1970, no writ). This doctrine of balancing equities has numerous exceptions and corollaries. One important exception is that the doctrine does not apply if granting an injunction would “aid an act which, if done, would be criminal or illegal.” Riley v. Davidson, 196 S.W.2d 557, 559 (Tex. Civ. App.—Galveston 1946, writ ref’d n.r.e.).
The applicant must have “clean hands”; injunctive relief will be denied to anyone who has caused the conditions of which he complains or has acquiesced as the conditions have developed. Vaughan v. Kizer, 400 S.W.2d 586, 589–90 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.). Also, laches may foil an application for an injunction if the applicant has waited too long to seek protection. Keene v. Reed, 340 S.W.2d 859, 860 (Tex. Civ. App.—Waco 1960, writ ref’d).
§ 8.35Availability of Injunction
§ 8.35:1Discretion of Trial Court
The grant or refusal of an injunction is ordinarily within the court’s sound discretion, and the action will be reversed only on a showing of clear abuse of that discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Repka v. American National Insurance Co., 186 S.W.2d 977, 981 (Tex. 1945). If a plaintiff has adequate grounds, alleges a cause of action, and introduces evidence tending to sustain the cause, the trial court does not abuse its discretion by issuing a temporary injunction. Southwestern Greyhound Lines v. Railroad Commission, 99 S.W.2d 263, 270 (Tex. 1936).
Unsecured creditors may be unable to obtain an injunction seizing or impounding property, because, absent an authorizing statute, a court of equity lacks jurisdiction to seize or impound assets unless the claimant either has a lien on those assets or has reduced his claim to judgment. Garland v. Shepherd, 445 S.W.2d 602, 605 (Tex. Civ. App.—Dallas 1969, no writ); see also Nowak v. Los Patios Investors, Ltd., 898 S.W.2d 9 (Tex. App.—San Antonio 1995, no writ); Perryton Feeders, Inc. v. Feldmann, 483 S.W.2d 386 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.). Attachment is the proper remedy for such a situation. See sections 8.25 through 8.32 above.
§ 8.35:3Preventing Transfer of Assets
If ownership of the property is disputed, injunctions sometimes issue to prevent transfer that could defraud the rightful owner. Examples include—
1.prohibiting transfer of funds that the defendant had fraudulently obtained from the plaintiff, Baucum v. Texam Oil Corp., 423 S.W.2d 434, 442 (Tex. Civ. App.—El Paso 1967, writ ref’d n.r.e.);
2.enjoining the mortgagor of an automobile from transferring its title, in part on the basis that he held the certificate of title only by mistake, Hall v. Universal C.I.T. Credit Corp., 298 S.W.2d 858, 859 (Tex. Civ. App.—Eastland 1957, no writ); and
3.making the debtor’s primary creditor a de facto receiver of the debtor’s business by ordering all receipts paid to the creditor, Surko Enterprises v. Borg-Warner Acceptance Corp., 782 S.W.2d 223 (Tex. App.—Houston [1st Dist.] 1989, no writ).
§ 8.36Procedural Requirements for Temporary Injunction
The plaintiff may seek a temporary injunction in the original petition as either the sole remedy or an ancillary remedy, or a separate petition may request the injunction as an ancillary remedy. The manual committee recommends a separate application because in collection cases a temporary restraining order or temporary injunction is usually sought as an interim pretrial remedy. This section discusses procedural requirements for the injunction; section 8.34 above discusses substantive requirements. Differences in procedure for the temporary restraining order are discussed at section 8.37 below. An application is at form 8-26 in this chapter.
The application must contain “a plain and intelligible statement of the grounds” for issuance of the writ. Tex. R. Civ. P. 682. Several grounds may be pleaded alternatively if each is sufficient, and proof of only one is necessary. Bales v. Jones, 288 S.W.2d 266, 268 (Tex. Civ. App.—Fort Worth 1956, writ ref’d n.r.e.).
The application must plead facts, not legal conclusions. Texas State Board of Medical Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex. Civ. App.—Waco 1958, no writ). Allegations of fact should be direct, certain, and particular and leave nothing to inference. The petition should contain specific fact allegations showing a right in the pleader, the wrong done by the defendant, and the resulting injury. Mendoza v. Canizales, 695 S.W.2d 266, 268 (Tex. App.—San Antonio 1985, no writ) (citing Texas State Board of Registration for Professional Engineers v. Dalton, Hinds & O’Brien Engineering Co., 382 S.W.2d 130, 135 (Tex. Civ. App.—Corpus Christ 1964, no writ)). The applicant has the burden of proof. Butler v. Butler, 296 S.W.2d 635, 637 (Tex. Civ. App.—Fort Worth 1956, no writ). The application is strictly construed. Thomas v. Bunch, 41 S.W.2d 359, 362 (Tex. Civ. App.—Fort Worth 1931), aff’d, 49 S.W.2d 421 (Tex. 1932).
§ 8.36:4Negation of Inferences Contrary to Injunctive Relief
The application must negate “every reasonable inference arising upon the facts so stated, that the party might not, under other pertinent supposable facts, be entitled to relief.” Gillis v. Rosenheimer, 64 Tex. 243, 246 (1885) (“The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.”); see also Mendoza v. Canizales, 695 S.W.2d 266, 268 (Tex. App.—San Antonio 1985, no writ) (sustaining injunction against enforcement of contract between plaintiff boxer and defendant manager when pleadings clearly set out unique manager-boxer relationship, recited the importance of boxer receiving proper training, alleged manager prevented training and supervision and participation in remunerative boxing contests, and stated that manager’s conduct harmed boxer, the damages were largely intangible, boxer had no adequate remedy at law, and the harm would likely continue without intervention by the court). This rule is often invoked to deny or dissolve a temporary injunction when the applicant has failed to disprove or negate facts that would undermine the alleged grounds for the injunction if they were proved. See, e.g., Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 826 (Tex. Civ. App.—Amarillo 1952, writ ref’d n.r.e.) (affirming denial of temporary injunction against city’s attempt to raise telephone rates pursuant to its ordinance, where applicant did not plead or prove that city was trying to enforce various remedies against it during pending dispute); Refrigeration Discount Corp. v. Meador, 134 S.W.2d 331, 332 (Tex. Civ. App.—Eastland 1939, no writ) (overturning injunction by district court in Erath County, Texas, enjoining execution of judgment rendered by county court at law in Tarrant County, where application for injunction pointed to amount of the order ($167) as proof that amount in controversy did not meet jurisdictional requirements of the county court ($200) but failed to allege that amount sued for or value of the property did not exceed $200).
A party seeking injunctive relief must state the particular form of injunctive relief sought in both the pleadings and prayer, and the prayer must specify the type of judgment sought. Hues v. Warren Petroleum Co., 814 S.W.2d 526, 529–30 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (denial of injunction affirmed when petition requested court enjoin defendants from storing gaseous products and saltwater in salt dome but did not request injunctive relief in prayer “nor plead the specific type of injunctive relief sought”) (citing American Precision Vibrator Co. v. National Air Vibrator Co., 764 S.W.2d 274, 279 (Tex. App.—Houston [1st Dist.] 1988, no writ); Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608, 611 (Tex. App.—Houston [14th Dist.] 1984, no writ)); Scoggins v. Cameron County Water Improvement District No. 15, 264 S.W.2d 169, 173 (Tex. Civ. App.—Austin 1954, writ ref’d n.r.e.) (“to be entitled to injunctive relief the petition must specify the relief sought . . . a court is without authority to grant relief beyond that so specified) (citing Fletcher v. King, 75 S.W.2d 980, 982 (Tex. Civ. App.—Amarillo 1934, writ ref’d)). In Villalobos v. Holguin, the court said, “We recognize that the rule is . . . that an injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing. . . . This view gives effect to the equally important rule that the decree must not be so broad as to enjoin a defendant from activities which are lawful and a proper exercise of his rights.” See Villalobos v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948).
The application must be verified by affidavit. Tex. R. Civ. P. 682. (The rule has not been amended to address unsworn declarations authorized by Tex. Civ. Prac. & Rem. Code § 132.001.) Affidavits based on “information and belief” are insufficient. Ex parte Rodriguez, 568 S.W.2d 894, 897 (Tex. Civ. App.—Fort Worth 1978, no writ) (under Tex. R. Civ. P. 682, affidavits based on “information and belief” are insufficient); Durrett v. Boger, 234 S.W.2d 898, 900 (Tex. Civ. App.—Texarkana 1950, no writ) (“[A]n affidavit on information and belief [is] insufficient to meet the requirements of Rule 682.”). The applicant’s attorney should not make the affidavit; see section 19.17:3 in this manual. If an injunction is granted after notice and hearing, however, it is not essential that the petition be sworn to, because a full and complete hearing was had before the court. Williams v. City of Tom Bean, 688 S.W.2d 618, 621 (Tex. App.—Dallas 1985, no writ) (affirming temporary injunction based on unverified petition when hearing was had after notice and when respondent did not challenge sufficiency of petition by special exception or other pleading but instead objected during hearing). See Tex. Gov’t Code § 312.011(1) for the requirements for affidavits. The application at form 8-26 in this chapter includes an affidavit. The court could consider an unsworn declaration under Tex. Civ. Prac. & Rem. Code § 132.001 in lieu of an affidavit.
“No temporary injunction shall be issued without notice to the adverse party.” Tex. R. Civ. P. 681. Tex. R. Civ. P. 680 allows temporary restraining orders to issue without notice if it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had on the matter. The adverse party must be given notice before the required hearing on the temporary injunction.
Before the injunction issues, the applicant must execute and file a bond to the adverse party in the amount fixed by the court. Tex. R. Civ. P. 684. For a discussion of the bond, see section 8.38 below.
§ 8.37Temporary Restraining Order
Temporary restraining orders have the same procedural requirements as temporary injunctions discussed in section 8.36 above, except that notice to the adverse party is not required if “it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” Tex. R. Civ. P. 680.
§ 8.38Bond for Injunctive Relief
Before issuance of a temporary injunction or temporary restraining order, the applicant must execute and file a bond to the adverse party in the amount fixed by the court. The bond is “conditioned that the applicant will abide the decision which may be made in the cause, and that he will pay all sums of money and costs that may be adjudged against him if the restraining order or temporary injunction shall be dissolved in whole or in part.” The bond must have “two or more good and sufficient sureties, to be approved by the clerk.” Tex. R. Civ. P. 684. The execution of an obligation by a surety company is in full compliance with a rule that requires the obligation to be executed by one or more sureties. Tex. Ins. Code § 3501.002(b)(1). See generally Tex. Ins. Code §§ 3503.001–.005. A bond given for a temporary restraining order is sometimes continued for a succeeding temporary injunction, but more often the plaintiff must execute a new bond.
For a bond, see form 8-31 in this chapter.
§ 8.39Order for Injunctive Relief
The order granting a temporary injunction or temporary restraining order must meet the requirements of Tex. R. Civ. P. 683 precisely. Rule 683 states in relevant part: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.” See Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App.—El Paso 1995, no writ) (temporary injunction dissolved when it did not identify harm appellees would have suffered if it had not issued; injunction did not comply with rule 683). If a court issues an order that does not conform to the rule, the nonconformity constitutes an abuse of discretion and mandates reversal. Smith v. Hamby, 609 S.W.2d 866, 868 (Tex. Civ. App.—Fort Worth 1980, no writ) (citing Charter Medical Corp. v. Miller, 547 S.W.2d 77, 78 (Tex. Civ. App.—Dallas 1977, no writ); Board of Equalization of City of Plano v. Wells, 473 S.W.2d 88, 91 (Tex. Civ. App.—Dallas 1972, no writ). The injunction is void even if the defendant does not bring the order’s nonconformity to the court’s attention. Fasken, 901 S.W.2d at 593 (“An injunction that fails to identify the harm that will be suffered if it does not issue must be declared void and be dissolved . . . even when the complaining party fails to bring the error to the trial court’s attention”); University Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ. App.—San Antonio 1981, no writ) (failure of temporary injunction order to meet strict requirements of rule 683 on its face renders order fatally defective and void, whether specifically raised by point of error or not) (citing State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971); Hamby, 609 S.W.2d at 868; Charter Medical Corp., 547 S.W.2d at 78; Holt v. City of San Antonio, 547 S.W.2d 715, 716 (Tex. Civ. App.—San Antonio 1977, writ ref’d n.r.e.)). Requirements for temporary injunctions and temporary restraining orders are generally the same, but the latter have some additional requirements, discussed at section 8.40 below. An order for issuance of a temporary injunction is at form 8-29 in this chapter.
In stating the reasons for its issuance, the order must be “specific in terms.” Tex. R. Civ. P. 683. The stated reasons must be legally sufficient and must not be mere conclusory statements. Martin v. Linen Systems for Hospitals, 671 S.W.2d 706, 710 (Tex. App.—Houston [1st Dist.] 1984, no writ). The court need not explain its reasons for believing that the applicant will prevail on the merits, but it must explain why the applicant will be injured if the injunction is denied. If the order fails to meet the requirement of rule 683 that the reasons for issuance be specifically stated, the order will be invalid. Courtlandt Place Historical Foundation v. Doerner, 768 S.W.2d 924, 925 (Tex. App.—Houston [1st Dist.] 1989, no writ).
§ 8.39:3Statement of Acts Enjoined
The order must “describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.” Tex. R. Civ. P. 683. The description of enjoined acts must be clear, definite, and precise, so that the defendant need not make inferences or draw conclusions about matters that persons might differ on. Villalobos v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948).
Rule 683 state in relevant part that “[e]very order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Tex. R. Civ. P. 683.
§ 8.39:5Setting for Trial Date
Every order granting a temporary injunction must include an order setting a date for trial on the merits with respect to the ultimate relief sought. Tex. R. Civ. P. 683. If the order granting an injunction fails to include the trial setting, the order must be dissolved. InterFirst Bank San Felipe v. Paz Construction Co., 715 S.W.2d 640, 641 (Tex. 1986) (judgment reversed without oral hearing and injunction order found void because it did not include order setting cause for trial on merits; rule 683 requirement that “[e]very order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought” is mandatory and must be strictly followed); Higginbotham v. Clues, 730 S.W.2d 129 (Tex. App.—Houston [14th Dist.] 1987, no writ).
§ 8.40Additional Requirements for Temporary Restraining Order
Temporary restraining orders must meet requirements in addition to those described in section 8.39 above. Every such order must define the threatened injury, state why the injury would be irreparable, state why the order was granted without notice, set the date for a hearing on the application for a temporary injunction, and be endorsed with the date and hour of issuance. Tex. R. Civ. P. 680.
An order for issuance of a temporary restraining order is at form 8-27 in this chapter, and a temporary restraining order is at form 8-28.