Form 33-31

This form may be used to enforce a withholding order or writ against an employer under Tex. Fam. Code § 158.206 when the employer is alleged to have failed to withhold or to have withheld but not remitted.

NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Motion to Enforce Withholding from Earnings

This Motion to Enforce Withholding from Earnings is brought by [name of movant], Movant, [capacity], in accordance with chapter 158 of the Texas Family Code. [The last three numbers of Movant’s driver’s license number are [numbers]./Movant has not been issued a driver’s license.] [The last three numbers of Movant’s Social Security number are [numbers]./Movant has not been issued a Social Security number.]

1.Discovery in this case is intended to be conducted under [level 2/level 3] of rule 190 of the Texas Rules of Civil Procedure. [If level 3, see form 5-1.]

Preservation of Evidence: Respondent is put on notice to preserve and not destroy, con­ceal, or alter any evidence or potential evidence relevant to the issues in this case, including tangible documents or items in Respondent’s possession or subject to Respondent’s control and electronic documents, files, or other data generated by or stored on Respondent’s home computer, work computer, storage media, portable systems, electronic devices, online reposi­tories, or cell phone.

2.Movant objects to the assignment of this matter to an associate judge for a trial on the merits or presiding at a jury trial.

3.This Court has continuing jurisdiction of this suit as a result of prior proceedings. Movant seeks enforcement of prior orders or process issued by this Court against Respondent, who is the employer of [name of obligor], Obligor.

4.The parties entitled to notice are as follows:

a.[Employer’s name, mailing address, city, state, zip], “Employer.” Employer is a [corporation/partnership/sole proprietorship] doing business in Texas. Employer may be served with process by serving [name, capacity], [include if applicable: its registered agent for service of process,] at [address, city, state].

b.[Name], Obligor, Social Security number [number], who was born on [birth date] and who has been ordered to make child support payments by this Court.

Process should be served at [address, city, state, zip code].

No service is necessary at this time.

c.[Name], Obligee, Social Security number [number], who is the person enti­tled to receive payments on behalf of the child[ren] under prior orders.

Process should be served at [address, city, state, zip code].

No service is necessary at this time.

5.After complying with all conditions precedent required by law, [name], in accor­dance with chapter 158 of the Texas Family Code, filed a request with the clerk of this Court for issuance of a writ of income withholding. On [date] the clerk of this Court issued a writ of income withholding to Employer. The writ was served on Employer’s agent on or about [date].

6.On [date] this Court ordered that any employer of Obligor withhold from Obli­gor’s disposable earnings the [current child support/medical child support/attorney’s fees and costs] of $[amount] per [period] and a specified amount to be applied to arrearages. On [date] the clerk of this Court issued a certified copy of that order, which was served on Employer’s agent on or about [date].

7.More than twenty days have elapsed since service of the [order/writ] of income withholding on Employer, and no motion for hearing on the applicability of the [order/writ] has been filed.

8.Employer has failed and refused to comply with the [order/writ] described above by failing to pay amounts ordered to be withheld for [number] pay periods since service of the [order/writ] in accordance with the [order/writ]. As of [date], Employer is liable to Obligee for $[amount], that amount having not been paid in compliance with the [order/writ].

8.Employer has failed and refused to comply with the [order/writ] described above by failing to pay amounts ordered to be withheld for [number] pay periods since service of the [order/writ] in accordance with the [order/writ]. As of [date] Employer is liable to Obligor for $[amount], that amount having been withheld from the wages of Obligor but not paid in com­pliance with the [order/writ], and an amount equal to the amount of accrued interest on the amount withheld and not paid.

9.There have been repeated past violations of the [order/writ], and future violations of a similar nature may occur before hearing. Judgment and all appropriate relief should be granted for each violation from the date the withholding order was signed to the date of hear­ing on this motion.

10.As of [date] Employer has knowingly violated the withholding statutes by failing to [withhold earnings/remit withheld income within the time required] for [number] pay peri­ods as ordered. Movant requests that Employer be fined $200 for each such failure to [with­hold income/remit withheld income within the time required] and for each failure to [withhold/remit withheld] income through the date of trial and that all such fines be paid to Obligee and credited against Obligor’s arrearages.

11.Movant requests that the Court enter a clarifying order, specify in that clarifying order the duties imposed on the respondent Employer, specified agents of Employer, or both, and provide a reasonable time within which compliance will be required.

12.Employer has in Employer’s possession, custody, or control documents that will demonstrate the nature and extent of noncompliance with the [order/writ] of income withhold­ing, and Employer should be ordered to produce at the offices of [name and address of attor­ney] on or before [time] on the fiftieth day following the date of service of this motion, to be inspected, sampled, photographed, tested, or copied, the originals or true copies of the follow­ing documents in Employer’s possession, custody, or control: all payroll records, including stubs, vouchers, and records of commissions, and all other written records or evidence of dis­posable earnings owed or paid to [name], Social Security number [number], since [date].

13.It was necessary to secure the services of [name of attorney], a licensed attorney, to enforce and protect the rights of [name] and the child[ren] the subject of this suit. Employer should be ordered to pay reasonable attorney’s fees, expenses, and costs, and a judgment should be rendered in favor of the attorney and against Employer and be ordered paid directly to the undersigned attorney, who may enforce the judgment in the attorney’s own name. Movant requests postjudgment interest as allowed by law.

Movant prays that Employer be found to be in violation of the orders of the Court and of chapter 158 of the Texas Family Code, [specify other relief based on pleadings chosen], and that the Court grant a judgment in accordance with that statute and this motion and all other relief that may be proper.

   
[Name]
Attorney for Movant
State Bar No.:
[Email address]
[Address]
[Telephone]
[Fax]

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Order to Appear

[Motion to Enforce Withholding from Earnings]

IT IS ORDERED that the hearing on Motion to Enforce Withholding from Earnings is set before the Court at [time] on [date].

All participants, including Employer, [name], are ORDERED to appear on the date and at the time set for the hearing physically in the courtroom of this Court at [address, city], Texas. Participants may appear before the Court by other means only if permitted by court order. The Court’s designated contact information [is [court’s designated contact informa­tion]/can be found at [specify where the court publishes this information]].

All participants, including Employer, [name], are ORDERED to appear on the date and at the time set for the hearing by [state method, e.g., Zoom, telephone] using the following information: [information for accessing meeting, e.g., Zoom meeting ID and passcode, confer­ence call number]. Participants may appear before the Court by other means only if permitted by court order. The Court’s designated contact information [is [court’s designated contact information]/can be found at [specify where the court publishes this information]]. Any partic­ipant who cannot participate by the electronic means set forth in this notice, has a technologi­cal issue preventing effective electronic participation, or needs assistance joining the hearing is ORDERED to contact the Court as soon as the issue is discovered.

All participants, [including/except] Employer, [name], are ORDERED to appear on the date and at the time set for the hearing either physically in the courtroom of this Court at [address, city], Texas, or by [state method, e.g., Zoom, telephone] using the following infor­mation: [information for accessing meeting, e.g., Zoom meeting ID and passcode, conference call number]. [Include if applicable: Employer is ORDERED to appear on the date and at the time set for the hearing physically in the courtroom.] Participants may appear before the Court by other means only if permitted by court order. The Court’s designated contact information [is [court’s designated contact information]/can be found at [specify where the court publishes this information]]. Any participant who cannot appear physically in the courtroom and who cannot participate by the electronic means set forth in this notice, has a technological issue preventing effective electronic participation, or needs assistance joining the hearing is ORDERED to contact the Court as soon as the issue is discovered.

Failure to appear as directed may result in sanctions being entered, up to and including default judgment or dismissal of claims.

Instructions for submitting evidence: [See the Court’s instructions attached to this order./See the Court’s instructions available at [specify where the court publishes this infor­mation].]

Additional instructions for participating in the hearing: [None/See the Court’s instruc­tions attached to this order./See the Court’s instructions available at [specify where the court publishes this information].]

The purpose of this hearing is to determine whether the relief requested in the Motion to Enforce Withholding from Earnings should be granted.

The Court ORDERS Employer to comply with the request for production contained in paragraph [number] of the Motion to Enforce Withholding from Earnings by producing at the offices of [name and address of attorney] on or before [time] on the fiftieth day following the date of service of the motion, to be inspected, sampled, photographed, tested, or copied, the originals or true copies of the following documents in Employer’s possession, custody, or control: all payroll records, including stubs, vouchers, and records of commissions, and all other written records or evidence of disposable earnings owed or paid to [name], Social Secu­rity number [number], since [date].

SIGNED on ________________________________.

   
JUDGE PRESIDING