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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
O P I=20 N I O N Appellants/Cross-Appellees Constable Jack F. Abercia and Old = Republic=20 Surety Company (collectively, "Appellants") appeal the trial = court's Final=20 Order Granting Motion to Recover Full Amount of Judgment in favor = of=20 Appellee/Cross-Appellant Kingvision Pay-Per-View, Ltd. = ("Kingvision"), in=20 which the trial court found Appellants jointly and severally = liable for=20 damages for failure to levy on the writ of execution issued on a = default=20 judgment pursuant to Section 34.065 of the Texas Civil Practice = &=20 Remedies Code and also fined Constable Abercia for contempt = pursuant to=20 Tex.Loc.Gov't Code Ann. =A7 86.024. Appellants bring six issues on = appeal,=20 in which they challenge the trial court's jurisdiction and the = legal and=20 factual sufficiency of the trial court's findings that they = violated=20 Sections 34.064 and 34.065 of the Texas Civil Practice & = Remedies Code=20 and Section 86.024 of the Local Government Code. Appellants also = argue=20 Constable Abercia proved, as a matter of law, that he was entitled = to good=20 faith immunity under Tex.Civ.Prac.& Rem.Code Ann. =A7 7.003 = and to=20 judicial immunity under common law and that, as a matter of law, = Old=20 Republic Surety Company ("Old Republic Surety") was not jointly = and=20 severally responsible for the judgment beyond the penal sum of the = bond.=20 By cross-appeal, Kingvision asserts that the trial court's = September 8,=20 2004 order is the valid order, not its January 14, 2005 order, = which is=20 the subject of this appeal. Kingvision also argues the trial court = erred=20 by awarding it less than the full amount of the underlying = judgment=20 debt. For the reasons stated below, we affirm the trial court's = judgment in=20 part, reverse in part, and remand the case to the trial court for = further=20 proceedings consistent with this opinion. FACTUAL AND PROCEDURAL = BACKGROUND On June 30, 2003, Kingvision obtained a default judgment = against Mario=20 Antonio Baltazar, individually, and d/b/a Gloria's, d/b/a Gloria's = Bar,=20 and d/b/a Gloria's Nite Club in the amount of $150,175. On August = 20,=20 2003, the county clerk issued a ninety-day writ of execution for = the=20 judgment. On or about August 27, Kingvision sent the writ to = Constable=20 Abercia of Precinct 1 of Harris County, Texas, along with payment = of the=20 $60 service fee and public records information showing Mr. = Baltazar as=20 owner and operator of Gloria's Nite Club, located at 8810 Jensen = Drive,=20 Houston, Texas. An accompanying letter instructed Constable = Abercia to=20 "seize all cash and coin" and requested service of the writ "on a = Friday=20 or Saturday, after 11:00 p.m., or at any time likely to maximize=20 recovery." On September 4, the Constable's office sent a letter to = Mr.=20 Baltazar, notifying him to contact their office immediately to = discuss=20 payment of the judgment and stating, "[i]f we do not hear from you = immediately, we will proceed to collect this judgment by SEIZING = any=20 non-exempt property found belonging to you according to law." On September 25, Deputy Kathryn Inman went to Gloria's and = attempted to=20 make a personal demand on the debtor, but found the establishment = was=20 closed, and instead left a business card on the door. On October = 1, Andrew=20 Korn, Kingvision's attorney, sent an inquiry letter requesting the = Constable's office execute the writ in the evening hours and to = make more=20 than one attempt to satisfy the judgment. On October 3, Mr. Korn = sent a=20 fax transmittal to Sergeant Albert Lui, requesting that the = deputies levy=20 on the debtor's cash and coin, but instructed them that until = otherwise=20 requested, not to levy on any other property in connection with = the writ=20 of execution. At 10 p.m. on the same date, Deputy Inman and three = other=20 deputies went to Gloria's and seized the money found in the cash = register=20 of the business, which totaled $112.50. By fax transmittals on = October 7=20 and November 9, Mr. Korn informed Sergeant Lui that U.S. Marshals = seized=20 $648.75 in cash and coin at Gloria's on October 4 and over $500 in = cash,=20 coin, and cigarettes on November 8. In the November 9 = correspondence, Mr.=20 Korn requested that the Constable's office continue to execute the = writ by=20 returning to Gloria's to seize cash and coin and/or executing a = "Keeper's=20 Levy." On November 10, Mr. Korn sent another fax transmittal, = providing=20 the Constable's office with public record information about real = property=20 and vehicles owned by Mr. Baltazar. Mr. Korn suggested the = Constable go to=20 the residence and seize non-exempt property such as cash or = firearms in=20 excess of two and to consider levying any non-exempt property at = Gloria's=20 such as stereo speakers, televisions, and other electronic = devices, if the=20 storage and sales fee would not exceed the likely sale price of = the items.=20 On November 19, 2003, the Constable's office issued a check for = $107.01 to=20 Kingvision and returned the writ to the court as expired. The = file-stamped=20 copy of the writ indicates the court received the returned writ on = December 1. On March 18, 2004, Kingvision filed its Motion to Recover Full = Amount=20 of Judgment, requesting the court command Constable Abercia and = his=20 surety, Old Republic Surety, to pay Kingvision the full amount of = the=20 judgment debt in the case, plus interest and costs, pursuant to=20 Tex.Civ.Prac.& Rem.Code Ann. =A7=A7 34.064, 34.065. Over = several days, the=20 trial court conducted a hearing on the motion. On September 8, = 2004, the=20 trial court entered an order granting Kingvision's motion, finding = Appellants jointly and severally liable for the full amount of the = judgment debt, plus interest and costs, and imposed a fine of $100 = on=20 Constable Abercia for contempt. Subsequently, Constable Abercia, = joined by=20 Old Republic Surety, filed a motion to modify or reform the = judgment or=20 alternatively to grant a new trial. On December 22, 2004, the = trial court=20 vacated the September 8 order. On January 14, 2005, the trial = court signed=20 the Final Order Granting Motion to Recover Full Amount of = Judgment. The=20 final order held Appellants jointly and severally liable to = Kingvision for=20 $109,690.98, plus interest and costs, and imposed a fine of $100 = on=20 Constable Abercia for contempt. On February 11, 2005, Old Republic = Surety=20 filed a motion to reform the final order, arguing that it was only = liable=20 for the amount of the penal sum of its bond, which was in the = amount of=20 $1,500. After a hearing, the trial court denied Old Republic = Surety's=20 motion. This appeal and cross-appeal now follow. DISCUSSION WRIT OF EXECUTION Execution is governed by rule and statute. Kuo Kung Ko v. =
Pin Ya=20
Chin, 934 S.W.2d 839, 841 (Tex.App.--Houston [14th Dist.] =
1996, no=20
writ); Hickey v. Couchman, 797 S.W.2d 103, 107 =
(Tex.App.--Corpus=20
Christi 1990, writ denied). Rule 637 imposes a duty on the sheriff =
to=20
"proceed without delay to levy . . . upon the property of the =
defendant=20
found within his county not exempt from execution . . . ." See Tex.R.Civ.P. 637. Section 34.065 of the Texas =
Civil=20
Practice and Remedies Code provides sanctions if the sheriff fails =
or=20
refuses to execute upon the debtor's non-exempt property. =
See=20
Tex.Civ.Prac.& Rem.Code Ann. =A7 34.065 (Vernon 1997). When a =
judgment=20
creditor asks that the constable be liable for non-execution, he =
or she=20
must plead a prima facie case alleging: (1) an execution based on =
a valid=20
judgment issued and delivered to the sheriff; (2) property of the =
debtor=20
subject to the execution in the county where the sheriff had the =
writ; (3)=20
failure of the sheriff to seize the non-exempt property; and (4) =
an=20
unsatisfied judgment. Ko, 934 S.W.2d at 841; =
Hickey, 797=20
S.W.2d at 107-108, citing Henry S. Miller Co. v. Evans, =
452=20
S.W.2d 426 (Tex. 1970). Once a prima facie case has been pled, the =
burden=20
shifts to the sheriff to disprove an element of the plaintiff's =
case or=20
prove one of several defenses of mitigation, such as proof that =
the fair=20
market value of the property was less than the underlying =
judgment.=20
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at =
108. In=20
addition, under Section 7.003 of the Texas Civil Practice and =
Remedies=20
Code an officer is not liable for damages if the officer executes =
the writ=20
in good faith and uses reasonable diligence in performing his =
official=20
duties. See Tex.Civ.Prac.& Rem.Code Ann. =A7 7.003 =
(Vernon=20
2002). NOTICE In Issue One, Appellants argue the trial court lacked =
jurisdiction over=20
the action because Kingvision failed to give notice of its suit =
against a=20
county official in his official capacity as mandated by =
Tex.Loc.Gov't Code=20
Ann. =A7 89.0041 (Vernon Supp. 2006). Appellants assert that since =
notice to=20
governmental entities and officials sued in their official =
capacities is a=20
jurisdictional requisite under Tex.Gov't Code Ann. =A7 311.034, =
the trial=20
court lacked subject matter jurisdiction over the proceeding and =
this=20
Court must vacate the court's judgment and dismiss the action. We =
reject=20
Appellants' argument for two reasons. First, Section 89.0041 is not applicable because this action =
was a=20
statutory proceeding brought pursuant to Tex.Civ.Prac.& =
Rem.Code Ann.=20
=A7=A7 34.064 and 34.065, not a "suit" against a governmental entity. See =
Tex.Civ.Prac. &=20
Rem.Code Ann. =A7 34.065; see also Hickey, 797 S.W.2d at =
107 n.1.=20
The motion was not a new suit, but rather a post-judgment =
proceeding in=20
the initial suit by which the judgment was gained and thus, the =
trial=20
court necessarily takes its jurisdiction from the underlying suit. =
See=20
Evans v. Henry S. Miller Co., 413 S.W.2d 954, 955-56=20
(Tex.Civ.App.--Austin 1967, no writ); see, e.g., =
McLane v.=20
Kirby & Smith, 54 Tex.Civ.App. 113, 117, 116 S.W. 118, =
119=20
(1909)("[j]urisdiction over attachment proceedings is part of the =
general=20
jurisdiction conferred on the courts in which they are =
cognizable"). Second, effective September 1, 2005, the Legislature made =
"[s]tatutory=20
prerequisites to a suit, including the provision of notice . . .=20
jurisdictional requirements in all suits against a governmental =
entity."=20
Tex.Gov't Code Ann. =A7 311.034; Act of May 25, 2005, 79th Leg., =
R.S., ch.=20
1150, =A7 1, 2005 Tex. Gen. Laws 3783, 3783 (establishing =
effective date);=20
see Tex.Gov't Code Ann. =A7 311.022 (Vernon 2005)("A =
statute is=20
presumed to be prospective in its operation unless expressly made=20
retrospective."). Kingvision filed its motion to recover full =
amount of=20
judgment on March 18, 2004 and the court's final order granting =
that=20
motion was signed January 14, 2005. Prior to the change in the =
law,=20
failure to comply with analogous notice provisions in the Code did =
not=20
deprive a court of subject matter jurisdiction. See Univ. of =
Tex. Sw.=20
Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 364-65 =
(Tex.=20
2004)(discussing notice requirements of Tex.Civ.Prac.& =
Rem.Code Ann.=A7=20
101.101). Likewise, failure to give notice of a claim pursuant to =
Section=20
89.0041 would not have deprived the trial court of jurisdiction =
over this=20
action. See id. at 362. Thus, even assuming that Section =
89.0041=20
applied to this action, we could nevertheless find that the change =
in the=20
law would not apply to this case because of its effective date. =
Issue One=20
is overruled. SUFFICIENCY POINTS In Issues Two through Five, Appellants challenge the legal and =
factual=20
sufficiency to support the trial court's findings of fact and =
conclusions=20
of law. By their Issues Two through Five, Appellants challenge the =
following findings of fact and conclusions of law: . . . FF5. Mario Antonio Baltazar, Defendant and judgment debtor=20
("Defendant") had property subject to execution (i.e. =
ownership=20
of non-exempt assets) in Constable Abercia's Precinct when =
Constable=20
Abercia had the Writ. FF6. Constable Abercia failed to seize Defendant's non-exempt=20
property. FF7. Constable Abercia failed to levy on property subject to=20
execution. FF8. Constable Abercia refused to seize Defendant's non-exempt=20
property. FF9. Constable Abercia refused to levy on property subject to=20
execution. FF10. Levy could have taken place. FF11. Constable Abercia was aware of Defendant's non-exempt =
assets.=20
Constable Abercia was able to seize these assets. However, =
Constable=20
Abercia did not do so. . . . FF13. The full amount of the debt is $152,675.00. FF14. Plaintiff was injured by Constable Abercia's failure to =
execute=20
in the amount of $109,690.98. Plaintiff suffered damages in the =
amount of=20
$109,690.98 as the proximate result of Constable Abercia's failure =
to=20
levy. . . . FF16. Constable Abercia and Old [Republic] Surety failed to =
identify=20
any property of Defendant that was exempt from execution. . . . CL3. Constable Abercia violated Tex.R.Civ.P. 621. CL4. Constable Abercia violated Tex.R.Civ.P. 636 & 637. CL5. Constable Abercia violated Tex.R.Civ.P. 651 & 654. CL6. Constable Abercia neglected and refused to return a writ =
of=20
execution as required by law and made a false return on a writ of=20
execution. Therefore, Constable Abercia and Old [Republic] Surety =
are=20
liable to Plaintiff for the full amount of the debt, plus interest =
and=20
costs pursuant [to] Tex.Civ.Prac. & Rem. Code =A7 34.064. CL7. Constable Abercia failed and refused to levy on property =
subject=20
to execution and the levy or sale could have taken place. =
Therefore,=20
Constable Abercia and Old [Republic] Surety are liable to =
Plaintiff for=20
the full amount of the debt, plus interest and costs pursuant to=20
Tex.Civ.Prac.& Rem.Code =A7 34.065. CL8. Constable Abercia both failed and refused to execute and =
return=20
according to law a process, warrant or precept lawfully directed =
and=20
delivered to him. Plaintiff was the person injured by Constable =
Abercia's=20
failure and refusal. [Citation omitted] CL9. Constable Abercia failed to use due diligence regarding =
the Writ.=20
Constable Abercia was neither careful nor persistent in =
effort. CL10. Constable Abercia did not use reasonable diligence in =
performing=20
his official duties. CL11. Constable Abercia did not execute the Writ in good =
faith. CL12. Constable Abercia willfully disobeyed the command of the =
Writ.=20
This disobedience was not justified or excused. CL 13. Plaintiff's claims are not barred, in whole or in part, =
by any=20
and all of the defenses plead by Constable Abercia and Old =
[Republic]=20
Surety (e.g., sovereign immunity, official immunity and judicial =
immunity,=20
etc.). Standards of Review Findings of fact in a bench trial have the same force and =
dignity as a=20
jury's verdict upon questions and are reviewed for legal and =
factual=20
sufficiency of the evidence by the same standards. Ortiz v.=20
Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City =
of Seven=20
Points, 806 S.W.2d 791, 794 (Tex. 1991). We review the trial =
court's=20
legal conclusions de novo. BMC Software Belgium, N.V. =
v.=20
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). In our review we consider the evidence in a light that tends to =
support=20
the jury's finding and disregard all evidence and inferences to =
the=20
contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 =
S.W.3d=20
269, 274 (Tex. 2002). We will sustain a no-evidence challenge only =
when:=20
(1) the record discloses the complete absence of a vital fact; (2) =
the=20
court is barred by rules of law or of evidence from giving weight =
to the=20
only evidence offered to prove a vital fact; (3) the evidence =
offered to=20
prove a vital fact is no more than a mere scintilla; or (4) the =
evidence=20
establishes conclusively the opposite of the vital fact. =
Marathon=20
Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The =
evidence is no=20
more than a scintilla "[w]hen the evidence offered to prove a =
vital fact=20
is so weak as to do no more than create a mere surmise or =
suspicion of its=20
existence . . . ." Kindred v. Con/Chem, Inc., 650 S.W.2d =
61, 63=20
(Tex. 1983). More than a scintilla exists when the evidence "rises =
to a=20
level that would enable reasonable and fair-minded people to =
differ in=20
their conclusions." Transp. Ins. Co. v. Moriel, 879 =
S.W.2d 10, 25=20
(Tex. 1994). When appealing the legal sufficiency of the evidence supporting =
an=20
adverse finding on which the party had the burden of proof, the =
appellant=20
must show that the evidence establishes, as a matter of law, all =
vital=20
facts in support of the issue. Dow Chemical Co. v. =
Francis, 46=20
S.W.3d 237, 241 (Tex. 2001); Anderson, 806 S.W.2d at 794. =
In=20
reviewing a "matter of law" challenge, we must first examine the =
record=20
for evidence that supports the finding, then we will examine the =
entire=20
record to determine if the contrary proposition is established as =
a matter=20
of law. Francis, 46 S.W.3d at 241. The point of error =
should be=20
sustained only if the contrary proposition is conclusively =
established.=20
Id. When reviewing the factual sufficiency of the evidence =
supporting an=20
adverse finding upon which the party did not have the burden of =
proof, the=20
appellant must show that the evidence is insufficient to support =
the=20
finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. =
1983). In=20
our review, we may not substitute our own judgment for that of the =
trier=20
of fact nor pass upon the credibility of the witnesses. See =
Maritime=20
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); =
see=20
also GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, =
615-16=20
(Tex.App.-- Houston [14th Dist.] 2001, pet. denied)(trier of fact =
is the=20
sole judge of the credibility of the witnesses and the weight to =
be given=20
to their testimony). After considering and weighing all the =
evidence, we=20
set aside the verdict only if it is so contrary to the =
overwhelming weight=20
of the evidence as to be clearly wrong and unjust. Ellis, =
971=20
S.W.2d at 406-07; Pool v. Ford Motor Co., 715 S.W.2d 629, =
635=20
(Tex. 1986). When appealing the factual sufficiency of the =
evidence=20
supporting an adverse finding on which the party had the burden of =
proof,=20
the appellant must show that the adverse finding is against great =
weight=20
and preponderance of the evidence. Southwestern Bell Tel. Co. =
v.=20
Garza, 164 S.W.3d 607, 620-21 (Tex. 2004); Francis, =
46=20
S.W.3d at 242. Evidence Deputy Kathryn Inman testified that she received the writ on =
September=20
4 and the same day sent out a "demand letter," to which she =
received no=20
reply. On September 25 at 4:15 p.m., Deputy Inman went to Gloria's =
to make=20
a personal demand and to try to work something out or get payment =
from Mr.=20
Baltazar. However, the business was closed, so she left a business =
card on=20
the door. According to Deputy Inman, she had a conversation with =
Mr. Korn,=20
in which they discussed the fact that he wanted to seize cash and =
coin=20
only. It was Deputy Inman's understanding that Mr. Korn in all his =
letters=20
from August 27 to October 3, had instructed them not to seize =
anything=20
other than cash and coin. Deputy Inman also recalled discussing =
the=20
problem with execution being scheduled in the evening and told Mr. =
Korn he=20
would have to speak with Sergeant Lui because it would involve =
overtime.=20
She explained that most executions and levies are done about =
noon--during=20
the daytime so that the defendant has the opportunity to pay while =
the=20
banks are open. On October 3, Deputy Inman and three other deputies went to =
Gloria's at=20
10 p.m. At Gloria's, one deputy watched the front door while =
Deputy Inman=20
and Deputy Eddy Valderrama, serving as a translator, went behind =
the bar.=20
The fourth deputy stood watch over Deputies Inman and Valderrama =
because=20
the nightclub is in a very bad part of town. Deputy Inman =
described the=20
establishment as a "low income bar" that only sells beer. Property =
in the=20
bar consisted of old tables, chairs, bar stools, some pool tables, =
a=20
cigarette machine, a jukebox, and a bandstand. The furnishings =
looked very=20
cheap, and according to Deputy Inman, nothing looked like it would =
bring=20
$154,000 at auction. Deputy Inman also noted that the Harris =
County=20
Appraisal District valued the entire establishment at $17,000, =
which she=20
said would not have made a dent in the judgment since they would =
only get=20
ten cents on the dollar at auction. That night the deputies stayed =
at=20
Gloria's for an hour and seized $112 from the cash register and =
found no=20
other money. Deputy Valderrama also called Mr. Baltazar, who =
stated the=20
only money that was in the bar was what was in the register. According to Deputy Inman, the writ of execution is a peaceful =
process=20
and it is against the law for the deputies to break the locks on =
the pool=20
table or vending machine. The only way they could take the cash =
out of the=20
machines was to seize them intact after first determining that =
they=20
belonged to the debtor. Deputy Inman stated that Mr. Korn never =
mentioned=20
the vending machines or pool tables. She also testified that they =
do not=20
usually take cigarettes. With regard to Mr. Korn's November 10 =
letter, in=20
which he mentioned seizing property from the defendant's home, =
Deputy=20
Inman stated she never received a copy of that letter because it =
was=20
addressed to Jim Savage with the County Attorney's office. Even if =
she had=20
been aware of the letter, nothing in it indicated to her that she =
could=20
seize that property. Deputy Inman's research showed that the =
address=20
mentioned was a homestead and of the two vehicles mentioned, Mr. =
Baltazar=20
had sold one of them. Mr. Korn testified about his correspondence and requests to the =
Constable's office. Mr. Korn explained that on October 1, he sent =
a letter=20
to the Constable explaining his dissatisfaction with their lack of =
action=20
on the writ of execution. In response, Mr. Korn was instructed to =
contact=20
Sergeant Lui. In a follow-up message, Mr. Korn implored Sergeant =
Lui to=20
stay on schedule for execution of the writ on October 3 because he =
knew=20
the U.S. Marshals would be returning on October 4 to execute on a =
federal=20
judgment. In a subsequent conversation, Sergeant Lui told Mr. Korn =
that he=20
was not going to take any real property if he went out on October =
3=20
because he did not have his bondsmen or mover ready, but if =
instructed to=20
take cash and coin, he would still go out. Per Sergeant Lui's =
instruction,=20
Mr. Korn sent the October 3 fax, requesting the levy on the =
debtor's cash=20
and coin only. After Sergeant Lui told him that they seized only =
$112.50,=20
Mr. Korn sent the sergeant receipts from the U.S. Marshals' =
seizures,=20
showing there was money available every night, and on November 9, =
he asked=20
the Constable's office to exercise diligence in the service of the =
writ=20
by, for example, returning to Gloria's to seize additional cash =
and coin=20
or employing a keeper's levy. By that point, Sergeant Lui had referred the matter to the =
County=20
Attorney's office. Mr. Korn had a conversation with Mr. James =
Savage, who=20
told him that it was their position that they did not have to go =
out to=20
that establishment unless they were reasonably likely to satisfy =
the=20
judgment. Mr. Savage told him to identify some property and in =
response,=20
Mr. Korn sent the November 10 fax, in which he suggested they go =
to the=20
debtor's home to see what property he had that was non-exempt and =
that=20
they take items such as televisions, speakers, and other =
electronic=20
devices from Gloria's. Despite Mr. Korn's November 10 letter, the =
deputies=20
never make any other attempts to execute on the judgment and =
instead,=20
issued a check for $107 on November 12 and never went back. On cross-examination, Mr. Korn admitted that he never =
identified=20
$154,000 worth of assets at Gloria's. Mr. Korn did not know who =
owned the=20
jukebox or the pool tables and he did not specifically tell the =
deputies=20
to take cigarettes. However, Mr. Korn maintained that he asked the =
Constable to take personal property like the vehicles and =
electronic=20
equipment. Mr. Korn also maintained that he had no duty to =
determine=20
whether personal property, like the car, was exempt or non-exempt, =
to give=20
any direction to the Constable, or designate property for the =
Constable to=20
levy on. Sergeant Albert Lui testified that he was the supervisor in =
charge of=20
the writ division for Constable Abercia's office. He explained =
that=20
executions are normally done during the day because the defendants =
can go=20
to the bank and pay the debt while the banks are open. Sergeant =
Lui stated=20
that a lot of times they will make a demand on the debt and then =
will work=20
something out and the defendant will go to the bank and get a =
check.=20
However, in the past they would go out to a bar at night and seize =
the=20
assets. According to Sergeant Lui, he told Mr. Korn that they were =
going=20
to do the whole levy, but Mr. Korn elected not to do so. Prior to =
the=20
November 10 letter, Mr. Korn never requested that they seize any =
property=20
other than cash and coin. Sergeant Lui explained that the deputies =
went to=20
Gloria's only one time because if there is a lot of merchandise or =
inventory, they will seize it all at one time, but if no other =
assets are=20
available, then they only go to the location one time. If they =
find some=20
assets or the plaintiff finds some through post-judgment =
discovery, then=20
they will go to a second location if it is available. As far as =
Sergeant=20
Lui knew, there were no other assets to seize after they went to =
Gloria's=20
one time. Mr. Korn had suggested that he conduct a keeper's levy, =
where he=20
would put a deputy at the door and collect money from patrons as =
they came=20
into the bar, but Sergeant Lui was not familiar with that and so =
he talked=20
with Mr. Savage who also was unfamiliar with that method. Sergeant =
Lui=20
recalled Mr. Korn telling them to go out there just to seize as =
much cash=20
and coin as they could and that he did not want to put them out of =
business. On cross-examination, Sergeant Lui testified that Deputy =
Inman's return=20
of service in this case was accurate even though it stated nothing =
about=20
looking for assets during the October 3 execution of the levy. As =
for why=20
they did not go to the debtor's house to made a demand on him or =
look for=20
assets there, Sergeant Lui stated that they did not have Mr. =
Korn's=20
November 10 correspondence, which was addressed to Jim Savage. =
Indeed, at=20
trial was the first time Sergeant Lui saw the November 10 letter, =
although=20
he stated Mr. Savage might have given it to Deputy Inman. Deputy U.S. Marshal George Hephner testified that he is =
assigned to the=20
civil section in Houston and has served writs of execution on at =
least 75=20
establishments in the past year. Deputy Hephner had executed writs =
on=20
Gloria's several times and had seized money at that location. On =
some of=20
the occasions, other law enforcement officers, specifically, TABC =
and=20
Houston police, come with them so that they can continue to levy =
if=20
illegal activity is occurring. Deputy Hephner explained that =
Houston=20
police wanted to go to Gloria's with them because they felt it was =
full of=20
drugs and TABC agents wanted to go along to check for violations =
of=20
license requirements. The first U.S. Marshal team that executed a =
writ at=20
Gloria's in April 2003 seized almost $1,900 from the cash =
registers,=20
change purses, coins in the pool table, and the owner's person. At =
Mr.=20
Korn's request, they went a second time on May 31 and recovered =
$421.=20
Between April 2003 to November 22, 2003, the U.S. Marshals went =
out to=20
Gloria's seven times. They recovered only $421 on May 31 because =
the=20
employees were hiding money from them. On the night of November =
22, they=20
employed a "double back," hitting the location twice in one night. =
While=20
at Gloria's they seized money from a jukebox and a pool table. =
Deputy=20
Hephner explained they first request that someone unlock the =
jukebox, and=20
if it is not unlocked, they will pry it open. In their first levy =
on=20
Gloria's, they broke the locks on the pool tables and gaming =
machines=20
after employees refused to tell them who owned the property. The =
marshals=20
then took the money and left their card with instructions for the =
owner of=20
that property to contact them. They have also taken cigarettes =
from=20
Gloria's. Deputy Hephner testified that he never identified assets =
at=20
Gloria's that would have been worth $154,000. Captain Cecil B. Lacey, division supervisor over civil and =
writs for=20
Constable Precinct 4 of Harris County, testified that his precinct =
is one=20
of the largest precincts and has the heaviest loads in the county. =
The=20
civil process department conducts most of the levies during its =
normal=20
business hours, 8 to 5 Monday through Friday, in order to avoid =
incurring=20
extra expenses and storage costs. In Captain Lacey's experience, =
multiple=20
trips to a location to do a levy occur under circumstances where =
there was=20
so much property that it could not be seized in one day. According =
to=20
Captain Lacey, if he was in a situation in which there was a =
$150,000=20
judgment, but when he went out to levy he only recovered $112, =
there would=20
have to be extenuating circumstances to warrant returning a second =
time.=20
In such a case, he would ask the plaintiff or plaintiff's counsel =
for=20
direction or assistance because otherwise the execution would not =
be=20
worthwhile. Captain Lacey would not break the locks on a vending =
machine=20
during a levy because that would be a criminal violation. He would =
also=20
not go beyond the command of the writ. Captain Lacey stated that =
it was=20
not worthwhile to seize cigarettes because of the restrictions on =
buyers=20
and the extra storage costs and inventory. Captain Lacey believed =
that=20
Constable Abercia's office could have been very well justified in =
not=20
wanting to go to Gloria's again because there was not anything =
there. In=20
his experience, only a small percentage of judgments are =
satisfied,=20
particularly executions on personal property. Lieutenant Frank Bromley, with the writ section of the Dallas =
County=20
Constable's Office, Precinct 1, testified that if he were in a =
situation=20
where there was a judgment for $150,000 on a writ of execution and =
he was=20
asked to go to a bar or tavern at night and he only recovered $112 =
and had=20
no reasonable expectation that more would be recovered, he would =
not make=20
successive trips to the location. Lieutenant Bromley explained =
that in his=20
office, they send a demand letter to the defendant and after no =
response,=20
they go out and try to collect on the judgment. They work the =
executions=20
in the order they receive them. They have one or two writ officers =
in=20
their office and a backlog of about a hundred writs. If they =
collected=20
only $112, they would return the writ showing that amount as =
collected and=20
return it nolo bono unless there was a turn over order or =
post-judgment=20
discovery that they could go out and levy on. Lieutenant Bromley =
has never=20
broken the locks on a vending machine on a writ of execution =
because it=20
could be leased property. If he were provided information from =
plaintiff's=20
attorney about the defendant's vehicles, his procedure would be to =
check=20
the registration information on the vehicles and then talk to the=20
defendant to determine whether that property was exempt. Violation of Section 34.065 In Issue Two, Appellants challenge the trial court's finding of =
a=20
violation of Section 34.065, arguing (1) there is no evidence or =
factually=20
insufficient evidence to support a finding that Constable Abercia =
failed=20
or refused to levy under the writ; (2) no evidence or factually=20
insufficient evidence of any property owned by the debtor upon =
which=20
Constable Abercia could have levied; and (3) the damage award was=20
arbitrary and not supported by legally or factually insufficient =
evidence,=20
particularly since Kingvision was not injured by the alleged =
failure to=20
execute. With regard to sub-point one, Appellants argue that Kingvision =
failed=20
to establish a prima facie case under Section 34.065, pointing to =
Sergeant=20
Lui's testimony that the deputies were specifically instructed to =
seize=20
only cash and coin and they intended to levy once if no other =
assets were=20
available. Appellants also point out that Deputy Inman did not =
receive the=20
November 10 letter that gave information about Mr. Baltazar's =
vehicles and=20
requesting that they execute on the non-exempt property at =
Gloria's.=20
Deputy Inman also believed that regardless, it would have been too =
late to=20
levy on that identified property because the writ was set to =
expire on=20
November 17, 2003. The evidence in the record, however, shows that =
Kingvision initially requested that the deputies seize only cash =
and coin,=20
but later during the life of the writ, requested on November 9 =
that the=20
deputies return to seize additional cash and coin and on November =
10 that=20
they levy on non-exempt property at Gloria's. Despite the deputies =
duty to=20
levy on and seize property subject to execution, which had been =
identified=20
by Kingvision, Appellants refused to do so. Indeed, Deputy Inman's =
testimony about the Constable's office procedure of levying only =
one time=20
before returning a ninety-day writ unless they arranged a multiple =
payment=20
plan with the defendant, squarely contradicts the command of a =
writ of=20
execution, which clearly imposes a duty on the constable to levy =
anew=20
where the execution does not satisfy the judgment. See=20
Tex.R.Civ.P. 637, 651. In sub-point two, Appellants contend that=20
Kingvision failed to prove the existence of non-exempt executable=20
property, thus there was no evidence of property which was =
executable that=20
was not executed on by Constable Abercia. As mentioned above, =
Kingvision=20
did identify property of the defendant subject to execution during =
the=20
life of the writ, therefore, this contention is without merit. We =
conclude=20
there was legally and factually sufficient evidence to support the =
trial=20
court's findings Nos. 5-11. In their third sub-point, Appellants argue that the trial =
court's=20
damage award is arbitrary and not supported by legally or =
factually=20
sufficient evidence, specifically challenging the trial court's =
finding=20
No. 14 that Kingvision was injured by Constable Abercia's failure =
to=20
execute in the amount of $109,690.98 and that Kingvision suffered =
damages=20
in that amount as the proximate result of the failure to levy. =
Under=20
Section 34.065, if an officer fails or refused to levy on property =
subject=20
to execution and the levy could have taken place, the officer and =
his=20
sureties are liable for the full amount of the debt, plus interest =
and=20
costs. See Tex.Civ.Prac.& Rem.Code Ann. =A7 34.065. =
However, if=20
the officer can establish, for example, that the plaintiff was not =
injured=20
by the failure to execute, that the defendant was insolvent, or =
that the=20
defendant's assets were exempt, there is generally no recovery.=20
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at =
107-08 (the=20
most important defense the Court has read into 34.065 is that the=20
plaintiff was not injured by the failure to execute). If there was =
non-exempt property that could have been seized, then the officer =
is=20
liable only to the extent of the value of the non-exempt property. =
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at =
108. To=20
establish this mitigation defense, the officer must show that the =
market=20
value of the defendant's non-exempt property is less than the =
amount of=20
the underlying judgment. Hickey, 797 S.W.2d at 108. In =
this case,=20
Appellants failed to plead or prove a defense of mitigation or to =
identify=20
property that had been designated as non-exempt by Mr. Baltazar.=20
See Tex.Civ.Prac. & Rem.Code Ann. =A7 34.065; =
Ko, 934=20
S.W.2d at 841. Because Appellants failed to meet their burden in=20
establishing a mitigation defense, the trial court did not err in=20
concluding that Constable Abercia and Old Republic Surety were =
liable for=20
Constable Abercia's failure to execute the writ. (Conclusion of =
Law No.=20
7). Further, there was legally and factually sufficient evidence =
to=20
support findings No. 14 and No. 16. Issue Two is overruled. Violation of Section 34.064 In Issue Three, Appellants argue the trial court erred in =
holding=20
Constable Abercia liable under Tex.Civ.Prac.& Rem.Code Ann. =
=A7 34.064=20
because the issue was never plead or tried and because neither =
legally nor=20
factually sufficient evidence support the trial court's finding or =
conclusion. Conclusion No. 6 states, "Constable Abercia neglected =
and=20
refused to return a writ of execution as required by law and made =
a false=20
return on a writ of execution. Therefore, Constable Abercia and =
Old=20
[Republic] Surety are liable to Plaintiff for the full amount of =
the debt,=20
plus interest and costs pursuant [to] Tex.Civ.Prac. & Rem. =
Code Ann. =A7=20
34.064." Despite issuing this challenged conclusion of law, the =
trial=20
court did not find Appellants liable under Section 34.064. Rather, =
the=20
trial court ordered that Kingvision recover against Constable =
Abercia and=20
Old Republic Surety, "pursuant to Tex. Civ. Prac. and Rem. Code =
34.065=20
(Failure to Levy or Sell)." Because we conclude the evidence was =
legally=20
and factually sufficient to support the trial court's finding of =
liability=20
under Section 34.065, we overrule Issue Three. Contempt Finding under Section =
86.024 In Issue Four, Appellants argue that because Constable =
Abercia's=20
deputies did not fail or refuse to execute Kingvision's writ, the =
trial=20
court's finding of contempt under Section 86.024 of the Texas =
Local=20
Government Code (Conclusions of Law No. 8 and No. 12) was in =
error.=20
Section 86.024 provides: If a constable fails or refuses to execute and return according =
to law=20
a process, warrant, or precept that is lawfully directed and =
delivered to=20
the constable, the constable shall be fined for contempt before =
the court=20
that issued the process, warrant, or precept on the motion of the =
person=20
injured by the failure or refusal. Tex.Loc.Gov't Code Ann. =A7 =
86.024=20
(Vernon 1999). Relying on their arguments as set forth in Issues Two and =
Three,=20
Appellants assert that the trial court's contempt order is not =
supported=20
by evidence because Constable Abercia did not fail or refuse to =
execute=20
Kingvision's writ. As discussed above in our disposition of Issue =
Two,=20
there was legally and factually sufficient evidence to support the =
trial=20
court's findings related to Constable Abercia's failure to levy =
upon=20
defendant's property subject to execution. Therefore, there was =
evidence=20
to support the trial court's contempt order under Section 86.024. =
Issue=20
Four is overruled. Good Faith Immunity and Judicial =
Immunity In Issue Five, Appellants contend Constable Abercia proved, as =
a matter=20
of law, that he was entitled to good faith immunity under =
Tex.Civ.Prac.=20
& Rem.Code Ann. =A7 7.003 and to judicial immunity under =
common law. An officer is generally not liable for damages resulting from =
the=20
execution of a writ if the officer in good faith executes the writ =
as=20
provided by law and uses reasonable diligence in performing his =
official=20
duties. Further, an officer is conferred with judicial immunity when =
executing=20
writs, subject to liability under Section 34.061. See Merritt =
v.=20
Harris County, 775 S.W.2d 17, 23 (Tex.App.--Houston [14th =
Dist.]=20
1989, writ denied). Under derived judicial immunity, an officer of =
a court=20
is entitled to the same immunity, that is, absolute immunity, as a =
judge=20
acting in his or her official judicial capacity, when the officer =
acts as=20
an "arm of the court" and when the court officer's conduct is like =
that of=20
the delegating or appointing judge. Dallas County v. =
Halsey, 87=20
S.W.3d 552, 554 (Tex. 2002); Delcourt v. Silverman, 919 =
S.W.2d=20
777, 781-83 (Tex.App.--Houston [14th Dist.] 1996, writ denied), =
cert=20
denied, 520 U.S. 1213, 117 S.Ct. 1698, 137 L.Ed.2d 824 =
(1997).=20
Judicial immunity for officers executing writs, however, is =
qualified by=20
Section 7.003, which requires good faith and reasonable diligence =
in the=20
execution. See Merritt, 775 S.W.2d at 23; Freeman v. =
Wirecut=20
E.D.M., Inc., 159 S.W.3d 721, 728-29 (Tex.App.--Dallas 2005, =
no=20
pet.)(interpreting the Merritt court's analysis of =
judicial=20
immunity in light of Section 7.003). Appellants assert that because Constable Abercia's deputies =
acted in=20
good faith and with reasonable diligence, they were entitled to =
immunity=20
under Section 7.003 as well as judicial immunity as a matter of =
law.=20
Specifically, Appellants point to testimony from Captain Lacey and =
Lieutenant Bromley, in which they both indicated that they would =
not have=20
gone back to levy again at Gloria's if they only recovered $112 =
during=20
their first attempt at execution. Each officer, however, also =
indicated=20
that under such circumstances they would have made contact with=20
plaintiff's attorney or the court to receive further instruction =
or would=20
have obtained additional information about assets identified by=20
plaintiff's attorney in post-judgment discovery. Here, the =
evidence showed=20
that after the first attempt at execution, Kingvision contacted =
Constable=20
Abercia's deputies and requested diligence on their part and at a =
minimum,=20
a second attempt to levy at Gloria's. Before the writ expired, =
Kingvision=20
requested that the deputies levy on non-exempt property at =
Gloria's beyond=20
its initial "cash and coin" request and further directed the =
deputies to=20
investigate non-exempt property at defendant's residence. Thus, =
there was=20
evidence that Constable Abercia was aware of property subject to =
execution=20
before the writ expired, but nevertheless his deputies did not act =
on=20
Kingvision's requests, which, in effect, cut short the life of the =
writ--simply because they did not feel it was worthwhile to levy a =
second=20
time. We conclude Appellants failed to establish their affirmative =
defense=20
of immunity as a matter of law. Issue Five is overruled. Penal Bond In Issue Six, Appellants argue the trial court erred in =
ordering=20
Constable Abercia and Old Republic Surety jointly and severally =
liable for=20
the full amount of the judgment because Old Republic Surety's =
liability=20
was limited to the statutory maximum penal sum of $1,500. Before entering office, a constable must execute a bond with =
two or=20
more good and sufficient sureties or with a solvent surety company =
authorized to do business in this state. See Tex.Loc.Gov't Code Ann. =A7 86.002(a), (c)(Vernon =
Supp.=20
2006). The bond must be payable to the governor and the governor's =
successors and is conditioned upon faithful performance of the =
duties=20
imposed by law. See id. Importantly, the bond must be =
approved by=20
the county commissioners court who must set the bond in an amount =
of not=20
less than $500 or more than $1,500. See id. =A7 =
86.002(a). Further,=20
under subsection (c), claims may be brought for recovery on the =
bond until=20
the whole amount of the bond is recovered, that is, the bond =
remains in=20
force until the penal sum is exhausted. See id. =A7 =
86.002(c). Constable Abercia executed the requisite bond with Old Republic =
Surety=20
in the amount of $1,500. Old Republic Surety does not dispute that =
it is=20
obligated to pay Kingvision under the bond if all or part of the =
trial=20
court's judgment is affirmed, but instead contends that it is only =
liable=20
up to the $1,500 maximum limit of the penal bond. Under Texas law, =
a=20
surety's liability is generally limited to the penal sum of the =
bond.=20
Great American Insurance Co. v. North Austin Municipal Utility =
District No. 1, 908 S.W.2d 415, 426 (Tex. 1995). Section =
86.002=20
specifically limits the penal sum for which a constable's surety =
will be=20
held liable for the constable's faithful performance of his or her =
duties.=20
Thus, by its plain language, Section 86.002 limits Old Republic =
Surety's=20
liability to the amount of the bond. Kingvision, however, argues that Old Republic Surety is =
asserting an=20
affirmative defense that it failed to plead and prove and thus, it =
has=20
waived its limited liability defense on appeal. We disagree. Rule =
94 of=20
the Texas Rules of Civil Procedure requires a party to plead the =
listed=20
affirmative defenses and "any other matter constituting an =
avoidance or=20
affirmative defense." See Tex.R.Civ.P. 94. As a matter of =
law,=20
Old Republic Surety is liable for only the penal sum of the bond. =
Contrary=20
to Kingvision's characterization of the statutory penal bond, Old =
Republic=20
Surety was not asserting a matter of avoidance, a policy exception =
under=20
an excess clause, a Section 3.606 defense, a statutory damages =
cap, an=20
immunity claim, lack of capacity, statute of limitations, an =
offset,=20
invalidity of a statute, unconstitutionality of a statute as =
applied, or=20
preemption. We conclude Kingvision's waiver contention is without=20
merit. Kingvision also contends that Old Republic Surety is fully =
liable=20
because Section 34.065 specifically states that a surety is liable =
"for=20
the full amount of the debt, plus interest and costs." Section =
34.065=20
states in pertinent part: If an officer fails or refuses to levy on or sell property =
subject to=20
execution and the levy or sale could have taken place, the officer =
and his=20
sureties are liable to the party entitled to receive the money =
collected=20
on execution for the full amount of the debt, plus interest and =
costs. See Tex.Civ.Prac.& Rem. Code Ann. =A7 34.065 =
(Vernon=20
1997). Kingvision argues that the plain language of Section 34.065 =
requires=20
that Old Republic Surety be held liable of the full amount of the=20
judgment, in excess of the penal bond. Such an interpretation, =
however,=20
would conflict with Section 86.002 and be contrary to the =
Legislature's=20
intent to limit the surety's liability to a maximum amount of =
$1,500 for=20
the constable's faithful performance of his or her duties. =
See=20
Tex.Gov't Code Ann. =A7 311.023 (Vernon 2005); Tex. Dep't of =
Transp.=20
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)(primary =
goal of=20
statutory construction is to ascertain and give effect to the=20
Legislature's intent in enacting it). To the extent that there is =
a=20
conflict between Section 34.065 and Section 86.002, we conclude =
that=20
Section 86.002 as the more specific statute controls. See =
Tex.Gov't Code Ann. =A7 311.026(b)(Vernon 2005). Issue Six is =
sustained. CROSS-APPEAL Kingvision raises two issues in its cross-appeal. In =
Cross-Issue One,=20
Kingvision argues that the trial court's September 8, 2004 order =
is the=20
valid order of this case, not its January 14, 2005 order. In =
Cross-Issue=20
Two, Kingvision argues that the trial court erred by awarding it =
less than=20
the full amount of the underlying judgment debt because Constable =
Abercia=20
and Old Republic Surety failed to plead and prove any defense to a =
full=20
award. With regard to its first cross-issue, the record shows that the =
trial=20
court entered an order granting Kingvision's motion to recover =
full amount=20
of judgment on September 8, 2004. Subsequently, Constable Abercia, =
joined=20
by Old Republic Surety, filed a motion to modify or reform the =
judgment or=20
alternatively to grant a new trial. On December 22, 2004, the =
trial court=20
vacated the September 8 order. On January 14, 2005, the trial =
court signed=20
the Final Order Granting Motion to Recover Full Amount of =
Judgment. The=20
final order held Appellants jointly and severally liable to =
Kingvision for=20
$109,690.98, plus interest and costs, and imposed a fine of $100 =
on=20
Constable Abercia for contempt. The trial court has plenary power to grant a new trial, or =
vacate,=20
modify, correct, or reform a judgment any time before the judgment =
becomes=20
final. See Tex.R.Civ.P. 329b(d), (e). If a judgment is =
modified,=20
corrected, or reformed in any respect, the time for appeal shall =
run from=20
the time the modified, corrected, or reformed judgment is signed.=20
See Tex.R.Civ.P. 329b(h). Even when a subsequent judgment =
differs=20
from the original judgment only by the signature date, the =
subsequent=20
judgment vacates the former judgment. Owens-Corning Fiberglas =
Corp. v.=20
Wasiak, 883 S.W.2d 402, 411 (Tex.App.--Austin 1994, no writ). =
Any=20
change, whether or not material or substantial, made in the =
judgment while=20
the trial court retains plenary power will restart the appellate =
timetable=20
from the date the modified judgment is signed. Check v. =
Mitchell,=20
758 S.W.2d 755, 756 (Tex. 1988). The only exception to this rule =
occurs=20
when the face of the record reveals that the trial judge signed a =
second=20
judgment for the sole purpose of extending the appellate =
timetables.=20
Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex. =
1994)(limiting the=20
holding of Anderson v. Casebolt, 493 S.W.2d 509, 510 =
(Tex.=20
1973)). In this case, the January 2005 judgment varied from the =
original=20
September 2004 judgment in the amount of the damages award. At the =
December 17, 2004 hearing on motion to modify or reform the=20
judgment/motion for new trial, the trial court expressed its =
concern over=20
the damages award. From the record of the hearing it is clear that =
the=20
trial court vacated the September 2004 judgment primarily to =
modify its=20
judgment on damages as well as to reconsider the surety and =
interest rate=20
issues. Therefore, we conclude the trial court did not sign the =
second=20
judgment for the sole purpose of extending the appellate =
timetable.=20
Cross-Issue One is overruled. In Cross-Issue Two, Kingvision contends the trial court erred =
by=20
awarding it less than the full amount of the underlying judgment =
debt. We=20
agree. In our disposition of Appellants' Issue Two, we concluded that=20
Appellants failed to meet their burden in establishing a =
mitigation=20
defense, therefore the trial court did not err in concluding that =
they=20
were liable for Constable Abercia's failure to execute the writ =
pursuant=20
to Section 34.065. Section 34.065 specifically states that the =
"full=20
amount of the debt, plus interest and costs" is recoverable and =
further=20
instructs that "[t]he total amount is recoverable on motion of the =
party=20
filed with the court that issued the writ, following five days' =
notice to=20
the officer and his sureties." See Tex.Civ.Prac.& =
Rem.Code=20
Ann. =A7 34.065. As noted above, Appellants failed to plead and =
prove any=20
mitigation defense, therefore, Constable Abercia was liable for =
the full=20
amount, with Old Republic Surety liable up to the maximum amount =
of the=20
penal bond. We sustain Kingvision's second cross-issue as to its=20
contention regarding Constable Abercia's liability. We overrule=20
Kingvision's second cross-issue to the extent that it is contrary =
to our=20
disposition of Appellants' Issue Six. DISPOSITION For the reasons stated above, we reverse the trial court's =
judgment=20
with respect to its damages award against Constable Abercia and =
Old=20
Republic Surety, and in all other respects, the trial court's =
judgment is=20
affirmed. We remand the case to the trial court for further =
proceedings=20
consistent with this opinion. DAVID WELLINGTON CHEW, Chief Justice February 15, 2007 Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.) Barajas, C.J. (Ret.), sitting by assignment, not =
participating 1. Specifically, Rule 637 provides: When an execution is delivered to an officer he shall proceed =
without=20
delay to levy the same upon the property of the defendant found =
within his=20
county not exempt from execution, unless otherwise directed by the =
plaintiff, his agent or attorney. The officer shall first call =
upon the=20
defendant, if he can be found, or, if absent, upon his agent =
within the=20
county, if known, to point out property to be levied upon, and the =
levy=20
shall first be made upon the property designated by the defendant, =
or his=20
agent. If in the opinion of the officer the property so designated =
will=20
not sell for enough to satisfy the execution and costs of sale, he =
shall=20
require an additional designation by the defendant. If no property =
be thus=20
designated by the defendant, the officer shall levy the execution =
upon any=20
property of the defendant subject to execution. Tex.R.Civ.P. 637. 2. Deputy Inman later testified that she =
checked the=20
vehicles owned by Mr. Baltazar after the writ expired in March =
2004, in=20
preparation for the hearing, because the transfer of title =
occurred in=20
February 2004. However, she maintained that even if the vehicle =
had been=20
seized, they would not have been able to sell it because the writ =
expired=20
seven days after the November 10 letter. In addition, there was no =
indication in the letter whether the vehicle was exempt or =
non-exempt.=20
3. Section 7.003 provides: (a) Except as provided by Section 34.061, an officer is not =
liable for=20
damages resulting from the execution of a writ by a court of this =
state if=20
the officer: (1) in good faith executes the writ as provided by law and by =
the Texas=20
Rules of Civil Procedure; and (2) uses reasonable diligence in performing his official =
duties. Tex.Civ.Prac.& Rem.Code Ann. =A7 7.003 (Vernon 2002).=20
|