Pretrial Extraordinary Remedies

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 769-812

19-1

Chapter 19

PRETRIAL EXTRAORDINARY

REMEDIES

QUICK VIEW

Definitions:

Attachment is a pre-judgment remedy by which a sheriff or constable takes possession of an alleged debtor’s

property up to the approximate amount of the debt for the purpose of securing payment of the judgment.

Receivership is an action brought to take possession of some or all of a debtor’s property and have it actively

managed or disposed by the receiver. Garnishment is an action brought against a third party who owes money

or property to the defendant debtor to have the money or property held for the creditor on the debtor’s account.

Sequestration is a pre-judgment remedy whereby a sheriff or constable takes possession of specified property

of a debtor. Filing of lis pendens is notice to the world of the claims made in pending litigation to specific real

property, thus rendering any transfer or encumbrance of the property thereafter subject to challenge.

Scope of chapter:

In General: Statutory and constitutional considerations; exemptions from extraordinary remedies.

Attachment: Grounds and procedure for attachment; responses and third party claims in attachment proceedings;

suit for wrongful attachment.

Garnishment: Grounds and procedure for garnishment; response to garnishment by defendant, garnishee, and

third parties; suit for wrongful garnishment.

Receivership: Grounds and application for receivership; qualifications of receiver; litigation by or against

receiver.

Sequestration: Grounds and procedure for sequestration; response to sequestration by defendant and third par-

ties; suit for wrongful sequestration.

Lis Pendens: Nature of and filing lis pendens; motion to cancel lis pendens; absolute privilege.

Strategies and tactics:

Pretrial remedies are usually cumbersome, expensive, and strictly reviewed. Contractual remedies and self-help

are usually preferable. Other alternatives include a temporary injunction against waste, or a quick trial date.

Statutes and rules:

Exemptions: CPRC 41.001-42.005

Attachment: TRCP 592-609; CPRC 61.001-61.082

Garnishment: TRCP 657-679; CPRC 63.001-63.008

Receivers: TRCP 695-695a; CPRC 64.001-63.108

Sequestration: TRCP 696-716; CPRC 62.001-62.063

Trial of Right to Property: TRCP 717-734

Lis Pendens: CPRC 12.007-13.004

Related topics: Presuit Activities, Ch. 2; Personal Jurisdiction, Ch 8; Motion Practice, Ch 16.

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE 19-2

TABLE OF CONTENTS

I. Overview

A. Types of Remedies

§19:01 In General

§19:02 Extraordinary Remedies Available

§19:03 Alternative Remedies: Repossession

§19:04 Alternative Remedies: Interpleader

§19:05 Compare: Post-Trial Remedies

B. Statutory and Constitutional Considerations

§19:20 Constitutionality of Pre-Trial Extraordinary Remedies

§19:21 Amendments to Meet Due Process Considerations

§19:22 Strict Construction of Statutory Requirements

C. Property Exempt From Extraordinary Remedies

§19:30 In General

§19:31 Exempt Property: In General

§19:32 Exempt Property: Current Wages

§19:33 Exempt Property: In Custodia Legis

§19:33.1 Exempt Property: Governmental Property

§19:34 Exempt Property: Insurance and Retirement Benefits

§19:35 Exempt Property: Other

§19:36 Secured Property Not Exempt

§19:37 Self-Settled Trusts Not Exempt

§19:38 Exempt Property: Conveyances and Proceeds

D. Trial and Appeal of Pretrial Remedies

§19:50 Interim Orders That Do Not Affect Final Trial

§19:51 No Interlocutory Appeal

§19:52 Mandamus May Be Available

II. Attachment

A. Nature of Remedy

§19:60 Seizing and Holding Unspecified Property of the Debtor

§19:61 Property That May Be Attached: Local Non-Exempt Real or Personal Property

B. Grounds

§19:70 In General: Probable Loss of Debt Without Attachment

§19:71 In General: Only for Liquidated Damages Due on Contract

§19:72 Nonresident Defendants and Foreign Corporations

§19:73 Concealing Person or Property

§19:74 Removing Person or Property from the State

§19:75 Removing Property from the County

§19:76 Selling or Disposing of Property

§19:77 False Pretenses

19-3 PRETRIAL EXTRAORDINARY REMEDIES

C. Issuance of Writ

§19:90 Time for Application Between Filing and Judgment

§19:91 Jurisdiction

§19:92 Plaintiff’s Motion and Affidavit

§19:93 Hearing

§19:94 Written Order Stating Findings, Maximum Value, and Bonds

§19:95 Plaintiff’s Issuance Bond: Damages from Attachment

§19:96 Service of Writ

§19:97 Levy

§19:97.1 Deadline for Levy

§19:98 Duties of Officer Executing Writ

§19:99 Sale of Perishable Property

§19:100 Leave Required to Amend Affidavit, Bond, Writ, or Return

D. Defendant’s Motion to Dissolve, Modify, or Substitute Property

§19:110 Defendant’s Verified Motion to Dissolve or Modify

§19:111 Hearing and Decision Within Ten Days

§19:112 Defendant’s Motion to Substitute Other Property

E. Replevy

§19:120 Replevy by Defendant

§19:121 Replevy Bond by Defendant: Lesser of Claim or Property Value

§19:122 No Replevy by Plaintiff

F. Claims by Third Parties: Trial of Right of Property

§19:130 Intervention by Competing Creditors or Interest Owners

§19:131 Intervenor’s Sworn Motion

§19:132 Hearing

§19:133 Written Order Stating Findings and Bond

§19:134 Bond

§19:135 Duties of Officer Upon Issuance of Order

§19:136 Order Directing Joinder of Issues

§19:137 Trial

G. Remedies for Wrongful Attachment

§19:150 Suit for Wrongful Attachment

§19:151 Damages

§19:152 Suit for Malicious Prosecution

H. Final Judgment

§19:160 Judgment Forecloses Lien on Attached Property

§19:161 Property Replevied by Defendant

§19:162 Judgment Against Third Party Holding Property

III. Garnishment

A. Nature of Remedy

§19:170 Impounding Debtor’s Property in the Hands of Third Parties

§19:171 Property That May Be Garnished: Non-Exempt Personal Property

§19:172 Property Coming to Garnishee After Answer Not Included

§19:173 Property Subject to Superior Lien

(Rev. 10, 4/13)