County and District Clerks Association February 9th, 2017 2017 CDCAT Winter Conference Civil Process John Steinsiek Chief Deputy (Retired) Author of LexisNexis Civil Process for Texas Copyright John Steinsiek

John Steinsiek – Instructor Qualifications LexisNexis author of Civil Process for Texas Sheriffs Association of Texas Civil Process Consultant Chair of the Civil Process and Liability Committee for the Texas Commission on Law Enforcement Developed and teach an Advanced 40 Civil Process Class that I teach all over the state Civil Process for Texas is in it’s 10 edition and is published apx. 3 months after the end of the legislative session. Starting my 5th year with the Sheriffs Association My committee is responsible for the course content for the BPO Civil Process and Liability class as well as the TECOLE 3131 Basic Civil Process class. The topics in the Basic Class maybe expanded for advanced classes. Copyright John Steinsiek

Copyright John Steinsiek In the beginning The legislature passed a law that the Supreme Court of Texas should write rules for the courts. They did put a safe guard in the legislations – if a rule conflicted with a law the legislature had passed---law prevails. County & District Courts may establish local rules (may not change state rule)—approved by the Supreme Court In the original legislations it said the court could not create law, that was the job of the legislature. A rule is law unless it is succeeded by a law. Copyright John Steinsiek

One book is rules - the rest are codes Codes are the laws passed by the legislature. I have two more book selves not in the picture. Copyright John Steinsiek

And then there is my book Order form in hand out. Copyright John Steinsiek

Copyright John Steinsiek E - Filing 1 Updated 09-13-16 Rule 107(g), Texas Rules of Civil Procedure, states: "The return and any documents to which it is attached must be filed with the court and may be filed electronically or by facsimile, if those methods of filing are available." The rule allows, but does not require, electronic filing of the return. Copyright John Steinsiek

Copyright John Steinsiek E-Filing Civil Mis. Docket 12-9206 Became mandatory July 1, 2016 for County and District Courts Attorneys must E-File all documents TexFile provided by Office of Court Administration Criminal Mis. Docket 15-9205 Probate “Wills” are the exception. Copyright John Steinsiek

Copyright John Steinsiek Court Clerks must not offer alternative electronic document filing transmission system (including fax filing) Except in the event of an emergency May want to check what is an emergency. Black’s Law is the legal reference definition for the legal works in this profession., not Webester’s Copyright John Steinsiek

According to the 09-13-2016 Update Officer may, but are not required to E-file returns An office did file a return by E-Filing the other day. The officer did get a call for the court clerk. She said she had never received one form a officer before and just called to make sure it was his return…… Copyright John Steinsiek

Copyright John Steinsiek Returns 2 The Civil Practice and Remedies Code Sec. 17.030 RETURN OF SERVICE Governs the minimum information required on a return. A lot more may be needed. All rules and codes dealing with returns are directed to server, not the court. This is the server’s report to the court. Many returns do not meet the minimum requirements. Many do not provide sufficient space for necessary information. When you try and put a seizure and sale information on a ½ pages form there just isn’t enough room. Copyright John Steinsiek

From the Server’s Perspective They are reporting what took place A standard form will work a lot of the time, but not all of the time If you serve a paper by mail when requested to do so by the plaintiff or his attorney “You must complete a return”. The green card can not act as a return. Laidlaw vs Waco. Copyright John Steinsiek

Copyright John Steinsiek Abstract of Judgment 3 Texas Property Code 52.002 Establishes a lien on the defendant’s property he currently owes, or may own at a later date. The judgment is good for 10 years (from the judgment date Government judgments is good for 20 years If the judgment becomes dormant the lien ceases to exist. (Tex Prop Code 52.006) Copyright John Steinsiek

Copyright John Steinsiek How to Renew A Judgment 1st - Have an execution issued and it is returned Nulla Bona. 2nd – Have a second execution near the end of the 10 years- The second execution renews the judgment for an additional 10 years-Gov. 20 years. 3rd - Way to renew-within two years file for a Writ of Scire Facias The writ of Scire Facias may also be used to remove a judgment. Renewal by issuing 2 Executions. CPRC 34.001 An Abstract does not renew—only records a non dormant judgment lien. Copyright John Steinsiek

Copyright John Steinsiek Writ of Restitution 4 1987 or so—Name changed to Writ of Possession by the legislature in the property code Was issued when an eviction was appealed to County Court. If rent was not paid into the court the Writ could issue Supreme Court did not up date the appeal rule when the legislature changed the name. There have been three languages changes in the Writ of Possession to date. Present one has been in effect over 10 years. Copyright John Steinsiek

Copyright John Steinsiek Writ of Restitution When the court didn’t change their rule on the appeal--- Legislature put a new section in Chapter 24 of the property code—appeal of the eviction---payment of rent into the court If payment was not made the court will issue a Writ Of Possession (standard language) Remember law trumps rule. Copyright John Steinsiek

Copyright John Steinsiek Writ of Restitution The new 500 series of JP rules abolished the last of the old 700 rules governing landlord and tenant eviction Writ of Restitution is no longer in any of the rules for appeal of evictions. “Gone from everywhere” Copyright John Steinsiek

FOR ALL MONEY JUDGMENTS OF ALL COURTS OF THIS STATE “TEXAS” Finance Code FOR ALL MONEY JUDGMENTS OF ALL COURTS OF THIS STATE “TEXAS” Copyright John Steinsiek

Finance Code Chapter 304 (114) 304.001 Requires the judgment interest rate be stated in the judgment. (Rule 630 also) The “Legal Highest Interest” is not defined in this code There are guide lines for the minimum and maximum rates the court may award. Handout #8 - Execution with “Legal Highest Interest Rate. These minimum and maximum setout in the code are guidelines for the consumer credit commissioner to determine the rate on the 15th of the month to publish by the Secretary of State in the Texas Registry for the next month. If the suit falls in this type of debt the attorney or the court should take judicial notice of that rate and should enter it into the judgment. (Finance Code 302.007 1/11/2019 2015-16 Copyright John Steinsiek

2015-16 Copyright John Steinsiek Failure to communicate 1/11/2019 2015-16 Copyright John Steinsiek

Interest Rates or Time Price Differential in Contract Page 112 Students will follow in the book. Handout-14-Consummer Credit commissioner instruction in this writ. Interest Rates or Time Price Differential in Contract (Tex. Fin. Code §304.002) A money judgment of a court of this state on a contract that provides for interest or time price differential earns postjudgment interest at a rate equal to the lesser of: (1) the rate specified in the contract, which may be variable rate; or (2) 18 percent a year. Fin. Code 304.002 1/11/2019 2015-16 Copyright John Steinsiek

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Judgment Interest Rate Fin. Code 304.003 Judgment Interest Rate (Tex. Fin. Code §304.003) (The time price differential not in a contract) (a) A money judgment of a court of this state to which Section 304.002 does not apply, including court costs awarded in the judgment and prejudgment interest, if any, earns postjudgment interest at the rate determined under this section. (b) The 15th of each month the consumer credit commissioner shall determine the postjudgment interest rate for money judgments rendered during the succeeding calendar month. (c) The postjudgment interest rate is (1) The prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation. (2) The rate for a judgment may not go below 5 percent (3) or above 15 percent. Sections 304.002 and 304.003 are directions to the court on how to determine the interest rate applicable to the judgment they are awarding. For example: the rate in the contract is 10% compounding daily. The 10% rate will apply for judgment purpose. But the compounding daily will not apply because 304.002 only allows the court to use this interest rate in the judgment, not other provisions of the contract.(Mercantile Bank & Trust v. Cunov, 749 S.W.2d 545, 1988 Tex. App. Lexis 3464, 6 U.C.C. Rep. Serv. 2d (CBC) 1001 (Tex. App. San Antonio 1988)). All money judgments are compound annually. 1/11/2019 2015-16 Copyright John Steinsiek

Publication of Judgment Interest Rate Fin. Code 304.004 (Tex. Fin. Code §304.004) The consumer credit commissioner shall send the rate to the Secretary of State for the post judgment interest rate for publication and the secretary shall publish the rate in the Texas Register. Note the date of computation and the responsibility for computation of this interest rate is the responsibility of the consumer credit commissioner — not the officer executing a writ. The rate will be in the Texas Register. The party who will receive a money judgment should request the applicable rate for that judgment based on the published rate in the Texas Register. 1/11/2019 2015-16 Copyright John Steinsiek

Accrual of Post Judgment Interest Fin. 304.005 (Tex. Fin. Code §304.005) Judgment interest accrues during the period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied. This is not calculated on a declining balance — interest accrues on the entire judgment from the date of the judgment until the judgment is paid. 1/11/2019 2015-16 Copyright John Steinsiek

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Compounding of Interest Judgments Fin. Code 304.006 Handout #9 – Interest rate attorney put on his fees was “Per Annum”. The correct interest was “Compound Annual”. (Tex. Fin. Code §304.006) Post judgment interest on a judgment of a court in this state compounds annually. Judgments before September 1, 1987 are calculated as simple interest. Officers may see these when a judgment is being renewed with the issuance of an execution. Kimsey v. Kimsey, 965 S.W.2nd 690, 1998 Tex. App. The divorce decree award should have provided for interest at the legal rate, compounded annually, in accordance with Tex. Fin. Code §§304.003 and 304.006. 1/11/2019 2015-16 Copyright John Steinsiek

Simple Interest-Prejudgment Fin. Code 304.104 Note: Ends the day before Judgment (Tex. Fin. Code §304.104) Prejudgment interest is computed as simple interest and does not compound. The court may state the amount of prejudgments interest within the judgment. Or the court may give instructions to the officer to calculate the prejudgment interest. Example: “Prejudgments interest is awarded at the rate of 8% on the amount of the judgment from August 1, 2009 until the date of the judgment September 3, 2009”. In this example, the officer would calculate the prejudgment interest as simple interest. 1/11/2019 2015-16 Copyright John Steinsiek

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Accrual of Prejudgment Interest Fin. Code 302.104 Accrual of Prejudgment Interest (Tex. Fin. Code §304.104) Prejudgment accrues during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date of judgment. If prejudgment interest is awarded, the judgment will state the start date and the rate awarded. 1/11/2019 2015-16 Copyright John Steinsiek

Copyright John Steinsiek Judicial Notice of Judgment Interest Rate Fin. Code 304.007 A court of this state shall take judicial notice of a published post judgment interest rate. If the plaintiff or his attorney doesn’t put the rate in the judgment the court is instructed to take notice of the rate on the date the judgment is awarded. We so not know what type of suit this was. Copyright John Steinsiek

Copyright John Steinsiek Law vs Policy 6 An agency’s policy is not a law. Attachment of Real Property requires the attachment be delivered to the county clerk and placed in deed records. An Execution has no such requirement—However you may have someone bring in their execution levy on a Writ of Execution This can be done, but it is not required. There are some parts of the state where this is being done and has been taught as the law. There is a move to get this enacted into law during this session. Copyright John Steinsiek

Thanks for Your Invitation Questions Thanks for Your Invitation Copyright John Steinsiek