Chapter 8-7 Attachment

• Jurisdiction: United States

8-7 Attachment

8-7:1 Overview

A proceeding to obtain a writ of attachment is ancillary to a pending lawsuit and is essentially a prejudgment execution on property; in Texas, the writ of attachment is purely of statutory origin.²²⁵ Such a writ may only be issued after a suit is filed but before judgment is rendered.²²⁶ The extraordinary remedy of attachment is purely statutory and is therefore strictly construed.²²⁷

8-7:1.1 Related Causes of Action

Garnishment, Sequestration, Receivership, Injunction: Temporary

8-7:2 Elements²²⁸

(1) The defendant is justly indebted to the plaintiff.²²⁹

• For resident defendants, the debt must be:

• Liquidated, as opposed to contingent;
• Based upon an express or implied contract; and
• Not based upon debt arising from tort liability.²³⁰

• For defendants whom personal service cannot be accomplished:

• The debt could be based on contract, tort or another unliquidated debt.²³¹

(2) The attachment is not sought for the purpose of injuring or harassing the defendant.²³²

(3) The plaintiff will probably lose his debt unless the writ of attachment is issued.²³³

(4) Specific grounds for the writ exist.²³⁴ There are nine listed specific grounds, but a plaintiff need only satisfy one.²³⁵

(4)(a) The defendant is not a resident of this state or is a foreign corporation or is acting as such;²³⁶

(4)(b) The defendant is about to move from this state permanently and has refused to pay or secure the debt due the plaintiff;²³⁷

(4)(c) The defendant is in hiding so that ordinary process of law cannot be served on him;²³⁸

(4)(d) The defendant has hidden or is about to hide his property for the purpose of defrauding his creditors;²³⁹

(4)(e) The defendant is about to remove his property from this state without leaving an amount sufficient to pay his debts;²⁴⁰

(4)(f) The defendant is about to remove all or part of his property from the county in which the suit is brought with the intent to defraud his creditors;²⁴¹

(4)(g) The defendant has disposed of or is about to dispose of all or part of his property with the intent to defraud his creditors;²⁴²

(4)(h) The defendant is about to convert all or part of his property into money for the purpose of placing it beyond the reach of his creditors;²⁴³

(4)(i) The defendant owes the plaintiff for property obtained by the defendant under false pretenses²⁴⁴ and the plaintiff must have relied upon the false pretenses.²⁴⁵

8-7:3 Damages and Remedies

8-7:3.1 Issuance of the Writ

The plaintiff may obtain a writ of attachment.²⁴⁶

The following form of writ may be issued:

"The State of Texas. To the Sheriff or any Constable of any County of the State of Texas, greeting: "We command you that you attach forthwith so much of the property of C. D., if it be found in your county, repleviable on security, as shall be of value sufficient to make the sum of __________ dollars, and the probable costs of suit, to satisfy the demand of A. B., and that you keep and secure in your hands the property so attached, unless replevied, that the same may be liable to further proceedings thereon to be had before our court in__________, County of __________. You will true return make of this writ on or before 10 a. m. of Monday, the __________ day of __________, 20 ___, showing how you have executed the same."²⁴⁷

8-7:3.2 Levy upon the Writ

The sheriff or constable may levy upon the writ in the same way that the sheriff or constable would levy upon a writ of execution.²⁴⁸

8-7:3.3 Sale of Perishable Personal Property

A plaintiff may submit an application to sell attached property if the attached property is perishable personal property.²⁴⁹

8-7:3.4 Costs and Interest

The plaintiff may recover costs and interest if:

• The plaintiff is successful in the underlying action and the defendant has replev-ied the property;²⁵⁰

8-7:4 Defenses

8-7:4.1 Replevy Bond

The defendant may replevy attached property.²⁵¹

8-7:4.2 Failure to Strictly Comply with Statutes

A plaintiff seeking a writ of attachment must strictly comply with both the statutes and rules governing attachments.²⁵²

Substantial compliance (generally found when there has been a typographical error or small omission) is sufficient.²⁵³

8-7:4.3 Exemption from Execution

A defendant may assert that the property is exempt from attachment because it is exempted from execution.²⁵⁴

Property that is exempt from attachment includes:

• Homestead property;²⁵⁵
• Certain personal property;²⁵⁶
• Certain money owed to original contractors or subcontractors;²⁵⁷
• Money owed under certain types of retirement, pension or savings plans;²⁵⁸
• Property acquired after the levy of a writ of attachment is not subject to the writ of attachment.²⁵⁹

8-7:5 Procedural Implications

8-7:5.1 Sworn Application

A plaintiff may only obtain a writ of attachment via a written application supported by affidavit.²⁶⁰

8-7:5.2 Posting of Bond

A plaintiff must post a bond before obtaining a writ of attachment.²⁶¹

The bond must be:

• Made payable to the defendant;²⁶²
• In an amount fixed by the court;²⁶³
• With two or more sureties;²⁶⁴ and
• Conditioned on the fact that the plaintiff will prosecute his suit to effect and pay to the extent of the penal amount of the bond all damages and costs as may be adjudged against him for wrongfully suing out such writ of attachment.²⁶⁵

The amount of the bond may be increased or reduced.²⁶⁶

Defects in bonds are not fundamental or jurisdictional and must be objected to.²⁶⁷

8-7:5.3 Ex Parte Relief

A plaintiff may obtain a writ of attachment in an ex parte hearing.²⁶⁸

8-7:5.4 Service

Service of the writ of attachment is a separate undertaking from levying upon the writ.²⁶⁹

Service of the writ on the defendant is to be accomplished in the manner for serving citation or as...