Five Tips for Filing an Application for a Post-Judgment Writ of Garnishment
by: Y.W. Peter Chen
Pursuant to CPRC §63.001(3), a post-judgment writ of garnishment is available if “a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” In light of what appear to be relatively simple requirements, the process often becomes routine and relegated to a form filing. However, Texas courts have long held that garnishment is a summary and harsh remedy, requiring strict compliance with the statutory provisions and related rules. See Beggs v. Fite, 106 S.W.2d 1039 (Tex. 1937).
Unlike a writ of execution, a post-judgment writ of garnishment may be applied for and issued immediately after entry of a final judgment. TRCP 657. Thus, post-judgment garnishment actions are often quick-strike opportunities, as a debtor will likely withdraw assets from any suspected target of collection actions. Accordingly, it is vitally important that a post-judgment garnishor get it right the first time around. The following are five common, though not exclusive, errors to be avoided:
1) Affidavits that merely regurgitate the statutory language are insufficient. The rules require that the affidavit be either based on personal knowledge, “set[ting] forth such facts as would be admissible in evidence;” or based on information and belief, provided “the grounds of such belief are specifically stated.” Often, affidavits merely state that “within the plaintiff's knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” Unsupported, this assertion is inadequate, and any garnishment premised on such a bald assertion cannot be sustained. Wilson v. HPSC, Inc., 2010 WL 1713998 (Tex. App.—Dallas April 28, 2010, no pet.).
2) In cases where the underlying judgment is against multiple defendants, an affidavit that addresses only one defendant is insufficient. In such cases, “the application for garnishment must state that the garnishment has not been brought to injure either of the defendants and that neither of the defendants has property within the affiant's knowledge, subject to execution, within the State, which was sufficient to satisfy the garnisher’s claim.” Kisro v. Heard, 547 S.W.2d 322 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ).
3) A writ of garnishment that does not issue from the court that issued the underlying judgment is defective. Post-judgment garnishment rights derive from the existence and validity of the underlying judgment; accordingly, proceedings may be “brought in no other court than the one in which the original suit was brought.” King & King v. Porter, 252 S.W. 1022 (Tex. 1923). Note that when instituting garnishment proceedings that arise from a judgment rendered in another state, this requirement necessitates domestication of the foreign judgment under the Uniform Enforcement of Foreign Judgments Act, CPRC chapter 35.
4) A writ served on the garnishee by a private process server cannot be sustained. Only a sheriff or constable may serve the writ of garnishment on the garnishee. Absent proper service, a garnishee “never [has] control or custody of any funds belonging to the judgment debtors.” Moody National Bank v. Riebschlager, 946 S.W.2d 521 (Tex. App.—Houston [14th Dist.] 1997, no writ). Likewise, the trial court does not acquire jurisdiction over any funds until the writ is properly served.
5) Without service on the debtor, a garnishment cannot be sustained. The rules require that a copy of the writ be served on the judgment debtor “as soon as practicable following the service of the writ.” Although this rule does not provide an explicit deadline, a fifteen-day delay before serving the debtor does not satisfy the strict requirements of rule 663a. Lease Finance Group, LLC v. Childers, 310 S.W.3d 120 (Tex. App.—Fort Worth 2010, no pet.). In contrast to the requirements for service on the garnishee, the rules allow for service on the debtor as provided in TRCP 21a. And, it is worth noting that “[a]ctual knowledge or a voluntary appearance by the debtor is insufficient and does not waive rule 663a’s requirement of service.”
Y.W. Peter Chen is an associate at Munsch Hardt Kopf & Harr, P.C. and an active member of the Dallas Asian American Bar Association. He can be reached at email@example.com.