The attorney should consult sections 8.11 through 8.15 in this chapter before using the prejudgment garnishment remedy.
The application must be accompanied with one or more affidavits. Tex. R. Civ. P. 658. Both the garnishee and the defendant must be served. See Tex. R. Civ. P. 659, 661, 663a. The application is discussed at section 8.12:4 in this chapter, and an affidavit is at form 8-2. See section 14.2 in this manual regarding exercising caution in pleading conditions precedent.
The clerk will docket the application to show the garnishee as the defendant, but the prejudgment garnishment proceeding should be conducted as an ancillary part of the underlying cause. See Tex. R. Civ. P. 659. In most counties, the clerk will prepare the writ of garnishment and the return. In some cases, the attorney may wish to prepare them for the clerk.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
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Use the same docket number and court designation as in the original petition (unless the cause has been transferred), but include the garnishee’s name in the style, as in “Carl Creditor, Plaintiff, v. Dan Debtor, Defendant and LastNational Bank, Garnishee.” |
Application for Prejudgment Writ of Garnishment
1.Parties. [Name of plaintiff], Plaintiff, whose address is [address, city, state], makes this Application for Prejudgment Writ of Garnishment. Garnishee is [name of garnishee], who can be served with citation at [address, city, state]. Defendant is [name of defendant], who can be served with citation at [address, city, state].
2.Facts. Plaintiff has reason to believe that Garnishee has property belonging to Defendant or is indebted to Defendant. Within Plaintiff’s knowledge, Defendant does not possess property in Texas subject to execution sufficient to satisfy the debt. This garnishment is not sought to injure Defendant or Garnishee.
3.Affidavit. Plaintiff is entitled to the issuance of a writ of garnishment before judgment on the grounds stated in the attached affidavit. The affidavit is incorporated in this application by reference.
4.Conditions Precedent. All conditions precedent have been performed or have occurred.
5.Prayer. Plaintiff prays that a writ of garnishment issue before judgment and that Plaintiff be granted all further relief to which Plaintiff may be entitled.
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
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Attach affidavit(s) (form 8-2). Prepare the following, as necessary, to take to the hearing: form 8-3 (order for issuance of writ of garnishment), form 8-4 (bond to defendant), form 8-5 (writ to be served on garnishee), and form 8-6 (officer’s return) with a copy of the writ, application, and affidavit(s) to be served on the defendant. |