2013 Copyright John SteinsiekCopyright 2009-John Steisniek 1 Civil Process Pre Judgment Writs John Steinsiek Chief Deputy (Retired) Tarrant County Pct.

The Difference in Criminal and Civil

32013 Copyright John Steinsiek

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 4 Objectives The student will be able to identify prejudgment writs Their purpose Their issuing requirements How they are severed or executed And the requirements when the writ is return of the court.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 7 (1)The commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 8 (2)The enforcement against the debtors or the property of the estate of a judgment obtained before the commencement of the case (3)Obtain possession of property of the estate or to exercise control over property

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 9 (4)Create, perfect or enforce any lien against property (5)To create, perfect or enforce any lien to the extent such lien secures a claim that arose before the commencement of the case (6)Any act to collect, assess, or recover a claim against the debtor that arose before the commencement

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 10 (7)The setoff of any debt owing to the debtor that arose before the commencement (8)The commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 11 (b)(1) The stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate;

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 12 (2)the stay of any other act under subsection (a) of this section continues until the earliest of: (A)The time the case is closed (B)The time the case is dismissed; or (C)The time a discharge is granted or denied.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 14 An injunction or temporary restraining order will stop a civil action. It should be filed in the county where the suit is pending. TRCP 680-693a, TCPRC 65.001-045 25

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 15 A supersedeas bond suspends a judgment and will stop the execution of the document. These bonds are posted with the court having jurisdiction over the matter in question and the court issues a Writ of Supersedeas. The court should advise the officer when the bond has been filed. (Rule of Appellate Procedure—Rule 24) 25

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 17 Members of the military service may be granted a stay of a court action. This includes families and support personal in the military service of this county. The court may, on its own motion, grant a stay to a service member or family member. 26

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 18 If you become aware the person you are delivering judgment enforcement documents to may be eligible for a stay under the Service Member Relief Act, the court should be advised.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 20 Return Requirements TRCP – Rule 16 Shall Endorse All Process. Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 21 TRCP – 105 Duty of Officer or Person Receiving The officer or authorized person to who process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay. 21

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 22 TRCP – 107 Return of Service The return of the officer or authorized person execution of the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. 22

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 23 Signature on Documents in the officer’s official capacity is Self-Authentication -- False are inaccurate statements in documents sighed in the officer’s official capacity may be prosecuted as if they were notarized. Texas Rules of Evidence Rule 902 (2)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 24 When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee’s signature. 24

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 25 When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 29 3.The return must identify the person who was served. If the person served was not the person the officer was directed to serve, Name that person and why the officer was permitted to deliver the paper to this person. When alternate service is granted by the court it may allow the officer to deliver the document to anyone over 16 at the defendant’s usual residence or business. 29

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 30 An example in this case could be the officer delivered the paper to the defendant’s residence and Bill Jones, over the age of 16, was served. The return would name Bill Jones (over the age of 16) as the person the document was delivered to under the court granted Motion for alternate service, when the defendant was Tom Jones. 30

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 31 4.Where service was made. The return must show the street address and city where service occurred. If service was in an unincorporated part of the county the county name maybe used in place of the city. 31

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 32 If the service was made at an address other than the one shown on the paper for service give a brief explanation of where and why service was made at that location. Service was made at 724 E. Border St., No Name City (Picked up at the Constable’s office).

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 33 5.The return must identify “the manner of service.” In person to the defendant is the best. The other methods are alternate service, mail, publication and by any other means determined by the court. If service was to someone else, the return should state why that person is capable of accepting service. 33

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 34 6.The return must identify who delivered the document. When service is done by a deputy, the return must state the name and title of the elected official. Example: Bill Smith, Sheriff, Smith County, Texas or for a constable Bill Smith, Constable Pct. 2, Smith County, Texas. 34

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 35 The return is signed by the server in his official capacity as a deputy of the elected official. When courts have been unable to read the signature of the server, service has been ruled invalid. It is recommended that the name should be printed below the signature.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 37 7.Certified server must have the return verified (notarized) and their certification number must be on the return. 8.Service by mail requires the green card, with the signature, be attached to the return. 9.Service by publication requires a copy of the published document (cut out from one publication) with the dates published. 37

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 38 10. The document must be returned to the court without delay when service has been made. The court will file marked the document in order for the suit to proceed. Only after the return has been on file for 10 days can the District or County courts issue a default judgment. (TRCP 107) The return must be on file 3 days before a Justice of the Peace court may issue a default judgment. (TRCP 536a) (TRCP 105) 38

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 42 Prejudgment Writs Things that are generally true An ExPate hearing was conducted Grounds were established in the hearing that caused the court to take control of the property The Plaintiff Posted a Bond to have the writ issued

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 43 A replevy bond was set for the defendant A pre judgment writ rules may establish special time frames when the Writ must be returned to the court. Note: When rules or codes establish time frames for returns or responses they will run from the date of issue in almost all cases. Not the date the officer receives the document.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek Copyright 2009-John Steisniek45 Perishable Property TRCP 710, 711, 712 If the property you are order to seize is perishable------ Notify the court promptly!! The court may order it sold other that in the normal way. Follow the court’s order when this occurs

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 46 If you are order to take property – but can not find the defendant – Take the property – then serve the defendant using rule 21a Execute or serve the writ in a timely manor. The First Duty – What is it?

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 47 Service Rule – 21a (Page 59) Service for Orders and Writs from any court May be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party’s last known address, 47

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 48 or by telephonic document transfer to the recipient’s current telecopier number, or by such other manner as the court in its discretion may direct. Service is complete upon deposit in the post office. Service is complete for faxed orders before 5:00 pm on the day they are faxed, after 5:00 pm service is considered to be complete on the next day.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 49 Three Types of Attachments Attachment—Personal Property (Page 61) Attachment—Real Property (Page 65) Attachment---Person (civil arrest warrant) (Page 67)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek Copyright 2009-John Steisniek50 Attachments for Personal or Real Property -- Return (61-65) Returnable—15 days from the issue date on the First Monday (TRCP 606) Executed any day of the week “No in place levy” for the personal property Personal property must be taken into the officers possession

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 51 How long do I keep the property Until the defendant post a replevy bond The court orders it sold The court orders it released to one side or the other

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 52 Attachment for Dollar Amount Any personal or real non exempt property belonging to the defendant may be seized to satisfy the amount designated in the court’s writ. Value of Property seized is calculated as resale value at a Sheriff/Constable Sale— Apx. 10 cents on the dollar.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 53 Real Property Attachment (65) TRCP 597 Real property is subject to deed Therefore a copy of the writ is delivered to the County Clerk. The County Clerk puts the attachment in the deed records for that property. The writ is completed and returned to the court

2013 Copyright John SteinsiekCopyright 2009-John Steisniek Copyright 2009-John Steisniek54 Requirements 1.Styled “The State of Texas” 2.Directed to the Sheriff or Constable of any county of the State of Texas —or to any peace officer—depending under which code the writ is issued 3.Shall command the officer to bring the person before the court, magistrate or grand jury while in session Attachment of Person (Page 67) Can be pre or post judgment

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 55 4.Option: The court can included in the order a statement that allows the person to be placed in jail when the court is not in session and brought before the court when it is session. 5.It shall be dated and signed officially by the officer issuing it. (TRCP 594 - CCP 24.11)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 56 Manufactured Home It may be real property or personal property The status is determined in the “Statement of Ownership and Location” – the new name for the title If it was declared at the time of purchase or filed later with the county clerk it can become a structure on the land. 177

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 57 In both criminal and civil law there are provisions for enforcement of court orders by holding the person in Contempt of Court in Chapter 21 (Sec. 21.001) of The Government Code. Courts are granted broad authority to ensure the proceedings are conducted with dignity and in an orderly and expeditious manner. (6)(6)(6)(6) Contempt of Court

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 58 Most Common Use To bring a person before the court to answer contempt of court charges Two Kinds of Contempt 1. Criminal – Fine and or jail time 2. Constructive (civil) – The defendant must do something to purge themselves of the contempt.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 59 This can include setting standards for wearing apparel during court proceeding. Section 21.002 provides for the following punishment ranges: County Courts and higher—A fine of not more than $500.00 or 6 month in jail or both fine and jail (Sec. 21.002(b). Justice Courts and Municipal Courts—A fine of $100.00 or 3 days in jail or both fine and jail (Sec 21.002(c).

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 60 These sections do not affect the court’s power to confine a commenter to compel the commenter to obey a court order (Sec. 21.002(e). If a person has fail to obey a court’s orders a Show Cause (Notice) can be issued and served to the person

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 61 This allows the defendant to present evidence why he should not be held in Contempt of Court. If the person fails to appear the court can issue an Attachment or a Capias to have the defendant brought before the court. Contempt for “Child Support” are governed by C.C.P. Article 42.033 and Chapter 157 of the Family Code.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 63 May Be Issued By: County Courts District Courts May Not Be Issued By Justice Court Injunctions and Restraining Orders CPRC §65.021 Jurisdiction Of Proceeding(79)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 65 Temporary Restraining Order (TRO) An Emergency Relief of Short Duration May Be Issued Ex Parte May Be Issued at Commencement of Suit or While It Is Pending (may require plaintiff to post bond before issuing) (RCP 684 Not To Exceed Fourteen (14) Days, With One Extension – Unless additional extensions are unopposed (RCP 687(e) Must Include A Date For Hearing (RCP 687(e) Injunction Served By Sheriff or Constable (RCP 688)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 66 Temporary Injunctions Temporary Injunctions are returnable at or before ten o’clock a.m. on the Monday next after the expiration of twenty (20) days from the date of service thereof, as in the case of ordinary citations. (RCP 687 (e))

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 67 Punishment For violation of a TRO or Temporary Injunction the punishment is contempt of court. One TRO with arrest powers (77) --------- Issued under the Family Code 262.1015—Provides for the removal of person who commits sexual abuse of a child from the home—Class A Misdemeanor up to a Third Degree Felony

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 68 Sequestration Also Known to many as a repossession writ Business and Commerce Code Sec. 9.609 (b) A secured party may proceed under Subsection (a): (1) pursuant to judicial process; or (2) without judicial process, if it proceeds without breach of the peace (72)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 70 These writs may only be executed by sheriffs and constables The purpose is to keep the property safe until the court can determine ownership Use caution—People attempting to repossess property have been assaulted, shot and killed.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 71 Black’s Law Definition— The dollar amount in question determines the court for filing The writ is directed to the sheriff or the constable Commands him to take possession And keep the property subject to further order of the court Defendant has sole replevy right for first 10 days – after that either party may replevy.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 72 How long do you keep the property? Until it is replevied Released by order of the court An order of sale is issued to sale the sequestrated property

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 73 1. A garnishment is a pre or post judgment writ 2. Child support payment are the only thing wages may be garnished for in Texas 3. The property is in possession of a third party The writ directs the party to respond to the court what, if anything, he is indebted to the defendant for when the writ was served and what effects of the defendant he has in his possession. Response is the same as a citation RCP 659 RCP 657 – 679 (76)

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 75 4. The garnishment should be served at once. The department and the officer assumes the liability if service is delayed. Rule 663 The sheriff or constable shall immediately proceed to execute the writ 5. You serve the person you are directed to serve. You may also have a writ and or a citation to served on the defendant - serve Garnishee first. Rule 663a

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 76 CPRC §63.008 - Service of a writ of garnishment on a financial institution named as the garnishee is governed by Section 59.008, Finance Code. (Page 10) CPRC §63.007 - Inmate Trust Fund- Texas Department of Criminal Justice.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 77 The officer takes nothing in most cases. There have been some instants in years past where an officer was order to take the property garnished into his possession— But I am unaware of any in recent years.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 78 Distress Warrant (173) For Commercial and Agricultural Property only – Not Residential (Property Code 54.006/65.0025) Note—Only a Justice of the Peace may issue a Distress Warrant – No exceptions The dollar amount of the back rent determines were the suit is filed. Over $10,000 is filed in County Court at Law or District Court

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 79 Distress Warrant The tenant may be locked out – the landlord only has to give a new key and entry after the back rent is paid. Rental agreement of Commercial and Agricultural property establish a lien on all contents and crops etc.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 81 Distress Warrant This is a lien enforcement— You do not have to set aside exempt property – all property in the rented unit (or agricultural crops) are subject to the lien Must take – No in place levy Keep until court orders sold or released or replevy bond is posted – court approves bond. TRCP 612/613 Delivery to the defendant is under rule 21a

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 82 Writ of Mandamus Black’s Law Defines--- A writ issued by a superior court to compel a lower court or a governmental officer to perform mandatory or purely ministerial duties correctly. 130

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 84 Subpoena (53) Civil Delivery—in person By Sheriff, Constable or other Witness Fee $10.00 Document only- $1.00 to certify record subpoenaed Good for 150 miles form county of issuance. Criminal By reading to witness Deliver copy to witness Electronically transmitted Certified Mail No witness fee Good any where in state 7/9/2016

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 85 Preventing Execution of Civil Process Penal Code 38.16 (a)A person commits an offense if he intentionally or knowingly by words or physical action prevents the execution of any process in a civil cause. (b)It is an exception to the application of this section that the actor evaded service of process by avoiding detection. (c)A offense under this section is a Class C misdemeanor.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 86 Communication All of your communications are public record This includes emails, text message on county phones, radio transmission, video camcorders, computer communication from your vehicle Nothing you say to a reporter is off the record.

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 87 Summary Prejudgment writ can be issued anytime before final judgment There is an Ex Parte hearing to determine the necessity of the writ and to establish the required bonds. Either party can replevy after the officer has possession of the property

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 88 Most prejudgment writ have to be executed within a required time If the seized property is perishable the court must be notified right away and the court can order special sale procedures for the perishable property. Two of these prejudgment writs where generally used to enforcement liens— Distress Warrant & Sequestrations

2013 Copyright John SteinsiekCopyright 2009-John Steisniek 1 Civil Process Pre Judgment Writs John Steinsiek Chief Deputy (Retired) Tarrant County Pct.

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2013 Copyright John SteinsiekCopyright 2009-John Steisniek 1 Civil Process Pre Judgment Writs John Steinsiek Chief Deputy (Retired) Tarrant County Pct.

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