CHAPTER 34. EXECUTION ON JUDGMENTS

State Codes and Statutes

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CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE C. JUDGMENTS

CHAPTER 34. EXECUTION ON JUDGMENTS

SUBCHAPTER A. ISSUANCE AND LEVY OF WRIT

Sec. 34.001. NO EXECUTION ON DORMANT JUDGMENT. (a) If a writ

of execution is not issued within 10 years after the rendition of

a judgment of a court of record or a justice court, the judgment

is dormant and execution may not be issued on the judgment unless

it is revived.

(b) If a writ of execution is issued within 10 years after

rendition of a judgment but a second writ is not issued within 10

years after issuance of the first writ, the judgment becomes

dormant. A second writ may be issued at any time within 10 years

after issuance of the first writ.

under the Family Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

767, Sec. 31, eff. June 19, 2009.

Sec. 34.002. EFFECT OF PLAINTIFF'S DEATH. (a) If a plaintiff

dies after judgment, any writ of execution must be issued in the

name of the plaintiff's legal representative, if any, and in the

name of any other plaintiff. An affidavit of death and a

certificate of appointment of the legal representative, given

under the hand and seal of the clerk of the appointing court,

must be filed with the clerk of the court issuing the writ of

execution.

(b) If a plaintiff dies after judgment and his estate is not

administered, the writ of execution must be issued in the name of

all plaintiffs shown in the judgment. An affidavit showing that

administration of the estate is unnecessary must be filed with

the clerk of the court that rendered judgment. Money collected

under the execution shall be paid into the registry of the court,

and the court shall order the money partitioned and paid to the

parties entitled to it.

issued does not abate the execution, and the writ shall be levied

and returned as if the plaintiff were living.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.003. EFFECT OF DEFENDANT'S DEATH. The death of the

defendant after a writ of execution is issued stays the execution

proceedings, but any lien acquired by levy of the writ must be

recognized and enforced by the county court in the payment of the

debts of the deceased.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.004. LEVY ON PROPERTY CONVEYED TO THIRD PARTY. Property

that the judgment debtor has sold, mortgaged, or conveyed in

trust may not be seized in execution if the purchaser, mortgagee,

or trustee points out other property of the debtor in the county

that is sufficient to satisfy the execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.005. LEVY ON PROPERTY OF SURETY. (a) If the face of a

writ of execution or the endorsement of the clerk shows that one

of the persons against whom it is issued is surety for another,

the officer must first levy on the principal's property that is

subject to execution and is located in the county in which the

judgment is rendered.

(b) If property of the principal cannot be found that, in the

opinion of the officer, is sufficient to satisfy the execution,

the officer shall levy first on the principal's property that can

be found and then on as much of the property of the surety as is

necessary to satisfy the execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER B. RECOVERY OF SEIZED PROPERTY

Sec. 34.021. RECOVERY OF PROPERTY BEFORE SALE. A person is

entitled to recover his property that has been seized through

execution of a writ issued by a court if the judgment on which

execution is issued is reversed or set aside and the property has

not been sold at execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.022. RECOVERY OF PROPERTY VALUE AFTER SALE. (a) A

person is entitled to recover from the judgment creditor the

market value of the person's property that has been seized

through execution of a writ issued by a court if the judgment on

which execution is issued is reversed or set aside but the

property has been sold at execution.

(b) The amount of recovery is determined by the market value at

the time of sale of the property sold.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER C. SALE

Sec. 34.041. SALE AT PLACE OTHER THAN COURTHOUSE DOOR. If the

public sale of land is required by law to be made at a place

other than the courthouse door, sales under this chapter shall be

made at the place designated by that law.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.042. SALE OF CITY LOTS. If real property taken in

execution consists of several lots, tracts, or parcels in a city

or town, each lot, tract, or parcel must be offered for sale

separately unless not susceptible to separate sale because of the

character of improvements.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.043. SALE OF RURAL PROPERTY. (a) If real property

taken in execution is not located in a city or town, the

defendant in the writ who holds legal or equitable title to the

property may divide the property into lots of not less than 50

acres and designate the order in which those lots shall be sold.

(b) The defendant must present to the executing officer:

(1) a plat of the property as divided and as surveyed by the

county surveyor of the county in which the property is located;

and

(2) field notes of each numbered lot with a certificate of the

county surveyor certifying that the notes are correct.

executing officer before the sale at a time that will not delay

the sale as advertised.

(d) When a sufficient number of the lots are sold to satisfy the

amount of the execution, the officer shall stop the sale.

(e) The defendant shall pay the expenses of the survey and the

sale, and those expenses do not constitute an additional cost in

the case.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.044. STOCK SHARES SUBJECT TO SALE. Shares of stock in a

corporation or joint-stock company that are owned by a defendant

in execution may be sold on execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.0445. PERSONS ELIGIBLE TO PURCHASE REAL PROPERTY. (a)

An officer conducting a sale of real property under this

subchapter may not execute or deliver a deed to the purchaser of

the property unless the purchaser exhibits to the officer an

unexpired written statement issued to the person in the manner

prescribed by Section 34.015, Tax Code, showing that the county

assessor-collector of the county in which the sale is conducted

has determined that:

(1) there are no delinquent ad valorem taxes owed by the person

to that county; and

(2) for each school district or municipality having territory in

the county there are no known or reported delinquent ad valorem

taxes owed by the person to that school district or municipality.

(b) An individual may not bid on or purchase the property in the

name of any other individual. An officer conducting a sale under

this subchapter may not execute a deed in the name of or deliver

a deed to any person other than the person who was the successful

bidder.

name the successful bidder as the grantee and recite that the

successful bidder exhibited to that officer an unexpired written

statement issued to the person in the manner prescribed by

Section 34.015, Tax Code, showing that the county

assessor-collector of the county in which the sale was conducted

determined that:

(1) there are no delinquent ad valorem taxes owed by the person

to that county; and

(2) for each school district or municipality having territory in

the county there are no known or reported delinquent ad valorem

taxes owed by the person to that school district or municipality.

(d) If a deed contains the recital required by Subsection (c),

it is conclusively presumed that this section was complied with.

(e) A person who knowingly violates this section commits an

offense. An offense under this subsection is a Class B

misdemeanor.

(f) To the extent of a conflict between this section and any

other law, this section controls.

(g) This section applies only to a sale of real property under

this subchapter that is conducted in:

(1) a county with a population of 250,000 or more; or

(2) a county with a population of less than 250,000 in which the

commissioners court by order has adopted the provisions of this

section.

Acts 2003, 78th Leg., ch. 1010, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

86, Sec. 1, eff. May 17, 2005.

Sec. 34.045. CONVEYANCE OF TITLE AFTER SALE. (a) When the sale

has been made and its terms complied with, the officer shall

execute and deliver to the purchaser a conveyance of all the

right, title, interest, and claim that the defendant in execution

had in the property sold.

(b) If the purchaser complies with the terms of the sale but

dies before the conveyance is executed, the officer shall execute

the conveyance to the purchaser, and the conveyance has the same

effect as if it had been executed in the purchaser's lifetime.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.046. PURCHASER CONSIDERED INNOCENT PURCHASER WITHOUT

NOTICE. The purchaser of property sold under execution is

considered to be an innocent purchaser without notice if the

purchaser would have been considered an innocent purchaser

without notice had the sale been made voluntarily and in person

by the defendant.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.047. DISTRIBUTION OF SALE PROCEEDS. (a) An officer

shall deliver money collected on execution to the entitled party

at the earliest opportunity.

(b) The officer is entitled to retain from the proceeds of a

sale of personal property an amount equal to the reasonable

expenses incurred by him in making the levy and keeping the

property.

sufficient to satisfy the executions held by the officer, the

officer shall immediately pay the surplus to the defendant or the

defendant's agent or attorney.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.048. PURCHASE BY OFFICER VOID. If an officer or his

deputy conducting an execution sale directly or indirectly

purchases the property, the sale is void.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER D. DUTIES AND LIABILITIES OF EXECUTING OFFICER

Sec. 34.061. DUTY TOWARD SEIZED PERSONALTY; LIABILITY. (a) The

officer shall keep securely all personal property on which he has

levied and for which no delivery bond is given.

(b) If an injury or loss to an interested party results from the

negligence of the officer, the officer and his sureties are

liable for the value of the property lost or damaged.

(1) that the officer took actual possession of the injured

party's property; and

(2) the actual value of any property lost or damaged.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 3, eff. September 1, 2007.

Sec. 34.062. DUTY OF SUCCESSOR OFFICER. If the officer who

receives a writ of execution dies or goes out of office before

the writ is returned, his successor or the officer authorized to

discharge the duties of the office shall proceed in the same

manner as the receiving officer was required to proceed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 34.063. IMPROPER ENDORSEMENT OF WRIT. (a) If an officer

receives more than one writ of execution on the same day against

the same person and fails to number them as received or if an

officer falsely endorses a writ of execution, the officer and the

officer's sureties are liable to the plaintiff in execution only

for actual damages suffered by the plaintiff because of the

failure or false endorsement.

(b) The plaintiff in execution has the burden to prove:

(1) the officer failed to properly number or endorse the writ of

execution;

(2) the officer's failure precluded the levy of executable

property owned by the judgment debtor;

(3) the executable property owned by the judgment debtor was not

exempt from execution or levy; and

(4) the plaintiff in execution suffered actual damages.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 4, eff. September 1, 2007.

Sec. 34.064. IMPROPER RETURN OF WRIT. (a) An officer may file

an amended or corrected return after the officer has returned a

writ to a court.

(b) Once an officer receives actual notice of an error on a

return or of the officer's failure to file a return, the officer

shall amend the return or file the return not later than the 30th

day after the date of the receipt of notice.

may be subject to contempt under Section 7.001(b).

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 4, eff. September 1, 2007.

Sec. 34.065. FAILURE TO LEVY OR SELL. (a) If an officer fails

or refuses to levy on or sell property subject to execution and

the levy or sale could have taken place, the officer and the

officer's sureties are liable to the party entitled to receive

the money collected on execution only for actual damages

suffered.

(b) The judgment creditor seeking relief under this section has

the burden to prove:

(1) the judgment creditor has a valid judgment against the

judgment debtor;

(2) the writ of execution was issued to the judgment creditor;

(3) the writ was delivered to the officer;

(4) the judgment creditor's judgment was unpaid and unsatisfied;

(5) the property to be levied on was subject to execution;

(6) the officer failed or refused to levy under the writ; and

(7) the amount of actual damages suffered.

purposes of this section if the judgment creditor proves that the

judgment debtor owned the property at issue, the property was

accessible to the officer under the law, the property was

situated in the officer's county, and the property was not exempt

from execution.

(d) Before a court may find that an officer failed or refused to

levy under the writ for purposes of this section, the court must

find that the judgment creditor specifically informed the officer

that the property was owned by the judgment debtor and was

subject to execution and that the creditor directed the officer

to levy on the property.

(e) In this section, "actual damages" is the amount of money the

property would have sold for at a constable or sheriff's auction

minus any costs of sale, commissions, and additional expenses of

execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 4, eff. September 1, 2007.

Sec. 34.066. IMPROPER SALE. (a) If an officer sells property

without giving notice as required by the Texas Rules of Civil

Procedure or sells property in a manner other than that

prescribed by this chapter and the Texas Rules of Civil

Procedure, the officer shall be liable only for actual damages

sustained by the injured party.

(b) The injured party has the burden to prove that the sale was

improper and any actual damages suffered.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 4, eff. September 1, 2007.

Sec. 34.067. FAILURE TO DELIVER MONEY COLLECTED. If an officer

fails or refuses to deliver money collected under an execution

when demanded by the person entitled to receive the money, the

officer and the officer's sureties are liable to the person for

the amount collected and for damages at a rate of one percent a

month on that amount if proven by the injured party.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 4, eff. September 1, 2007.

Sec. 34.068. RULES GOVERNING ACTIONS UNDER THIS CHAPTER. (a)

This section applies to any claim for damages brought under

Section 7.001, 34.061, 34.063, 34.065, 34.066, or 34.067 or under

Section 86.023, Local Government Code.

(b) Suit shall be brought in the form of a lawsuit filed against

the officer in the county in which the officer holds office.

of the date on which the injury accrues.

(d) An officer or a surety may defend the action by stating and

proving any defenses provided by law, including any defense that

would mitigate damages.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.069. PAYMENT OF DAMAGES. A county, at the discretion of

the commissioners court, may pay any judgment taken against an

officer under Section 7.001, 34.061, 34.063, 34.064, 34.065,

34.066, or 34.067 or under Section 86.023, Local Government Code,

provided that this section does not apply if the officer is

finally convicted under Section 39.02 or 39.03, Penal Code.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.070. RIGHT OF SUBROGATION. An officer against whom a

judgment has been taken under Section 7.001, 7.002, 34.061,

34.063, 34.064, 34.065, 34.066, or 34.067 or under Section

86.023, Local Government Code, or a county that has paid the

judgment on behalf of the officer under Section 34.069, has a

right of subrogation against the debtor or person against whom

the writ was issued.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.071. DUTIES OF EXECUTING OFFICER. An officer receiving

a writ of execution does not have a duty to:

(1) search for property belonging to the judgment debtor;

(2) determine whether property belongs to a judgment debtor;

(3) determine whether property belonging to the judgment debtor

is exempt property that is not subject to levy;

(4) determine the priority of liens asserted against property

subject to execution; or

(5) make multiple levies for cash or multiple levies at the same

location.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.072. TIMING OF EXECUTION AND RETURN. (a) An officer

receiving a writ of execution may return the writ after the first

levy, or attempted levy, if the judgment creditor cannot

designate any more executable property currently owned by the

judgment debtor at the time of the first levy or first attempted

levy.

(b) Notwithstanding Rule 637, Texas Rules of Civil Procedure, an

attempt to levy on property may begin any time during the life of

the writ, provided that the officer shall allow enough time for

completing the sale of the property.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.073. TRANSFER OF WRIT; NO DUTY TO LEVY OUTSIDE OF

COUNTY. (a) An officer receiving a writ may transfer the writ

to another officer in another precinct, or to another law

enforcement agency authorized to perform executions, within the

county of the first officer who received the writ.

(b) An officer does not have a duty to levy on or sell property

not within the officer's county, unless it is real property that

is partially in the officer's county and partially within a

contiguous county.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.074. OFFICER'S SURETY. (a) An officer's surety may

only be liable for the penal sum of the surety bond minus any

amounts already paid out under the bond. In no event may an

officer's surety be liable for more than the penal sum of the

officer's surety bond.

(b) If the officer and the officer's surety are both defendants

in an action brought under this chapter, the surety may deposit

in the court's registry the amount unpaid under the surety bond

and the court shall determine the proper disposition of this sum

or order the return of the deposit to the surety in the court's

final judgment.

this chapter or under Section 7.001. Instead, a prevailing party

under these provisions may bring a separate action against a

surety failing to pay the amount remaining under the bond on a

final judgment. This action must be brought on or before 180

days after the date all appeals are exhausted in the underlying

action.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.075. WRONGFUL LEVY. Whenever a distress warrant, writ

of execution, sequestration, attachment, or other like writ is

levied upon personal property, and the property, or any part of

the property, is claimed by any claimant who is not a party to

the writ, the only remedy against a sheriff or constable for

wrongful levy on the property is by trial of right of property

under Part VI, Section 9, Texas Rules of Civil Procedure.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

Sec. 34.076. EXCLUSIVE REMEDY. This subchapter is the exclusive

remedy for violations of an officer's duties with regard to the

execution and return of writs without regard to the source of the

duty prescribed by law.

Added by Acts 2007, 80th Leg., R.S., Ch.

421, Sec. 5, eff. September 1, 2007.

State Codes and Statutes

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