Extraordinary Remedies - Litigation - Walker Mark PDF

Presented:
33rd Annual Page Keeton Civil Litigation Conference

October 29 30, 2009
EXTRAORDINARY REMEDIES:
Some Remedies Every Trial Lawyer Should Know,
Or, Overcoming Newtons Law of Inertia.
MARK C. WALKER
MARK C. WALKER, ESQ.

Brown McCarroll, L.L.P.
221 N. Kansas Street, Suite 2000
El Paso, Texas 79901
Co-Authors:
RHONDA MATES, ESQ.
CHASE C. HAMILTON, ESQ.
Brown McCarroll, L.L.P.
111 Congress Avenue, Suite 1400
Austin, Texas 78701
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TABLE OF CONTENTS
I. INTRODUCTION. ..................................................................................................................... 3
II. INJUNCTIVE RELIEF........................................................................................................... 4
A. Grounds for Relief: Statutes and Rules.............................................................................. 4
B. Procedure and Requirements: Injunctions Generally. ........................................................ 5
B. Temporary Restraining Order. .......................................................................................... 10
C. Temporary Injunction. ...................................................................................................... 11
1. Permanent Injunction. ................................................................................................... 14
D. Things to Consider.............................................................Error! Bookmark not defined.
II. RECEIVERSHIP...................................................................................................................... 16
A. Statutes and Rules. ............................................................................................................ 16
B. Procedure and Requirements. ........................................................................................... 16
C. Things to Consider............................................................................................................ 17
1. Suits Against the Receiver. ........................................................................................... 17
2. Constitutional Issues. .................................................................................................... 18
3. Receivers Fees. ............................................................................................................ 18
4. Alternative Remedies.................................................................................................... 18
III. ATTACHMENT ..................................................................................................................... 18
1. Wrongful Attachment. .................................................................................................. 21
IV. GARNISHMENT ................................................................................................................... 22
1. Property Exempt from Garnishment............................................................................. 22
2. Pre-judgment Writ of Garnishment. ............................................................................. 23
3. Post-judgment Writ of Garnishment............................................................................. 23
4. Defendants Response to Writ of Garnishment. ........................................................... 24
5. Garnishment Proceedings. ............................................................................................ 25
V. SEQUESTRATION ................................................................................................................. 26
1. Obtaining Writ of Sequestration. .................................................................................. 26
2. Defendants Response to Writ of Sequestration. .......................................................... 28
3. Plaintiffs Replevy if Defendant Fails to Replevy........................................................ 29
1. Wrongful Sequestration. ............................................................................................... 29
VI. QUO WARRANTO................................................................................................................ 30
VII. CONCLUSION ..................................................................................................................... 31
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I. INTRODUCTION.
Litigation as we know it is governed by Newtons First Law of Motion, or the Law of
Inertia:
A body at rest remains at rest and a body in motion continues to
move at a constant velocity unless acted upon by an external
force.
Newton, Isaac, Philosophiae Naturalis Principia Mathematica (1687).
What does Newtons Law of Inertia have to do with litigation? Everything.
We are all used to lawsuits taking a certain course, from the filing of suit, to answer,
motions, discovery deadlines, pretrial deadlines, all of which proceed at a certain pace, governed
by deadlines set for us by rules or agreements. To a large extent, the course of a lawsuit is
predictable, and continues along a predictable path. In other words, a typical lawsuit behaves in
a predictable manner, and either stays at rest or moves along at a certain pace. As litigators, we
grow accustomed to and comfortable with that pace. We can anticipate certain events occurring
at certain times, and the lawsuit will follow the path set by the rules of procedure.
Extraordinary remedies disrupt the pace of lawsuits, just as an external force disrupts the
rest or motion of an object. A request for temporary restraining order, for example, compresses
the achievement of some of the remedy sought to the time that the suit is filed, and the order can
be issued before the other party even knows about the suit! With that remedy, whatever
happened to the commonly accepted concepts of thoughtful pleading, analysis of legal issues,
and confronting witnesses and the accuser?
Whether you go for legal history to Blackstones Commentaries on the Laws of England,
or Oliver Wendell Holmes The Common Law, you will find that extraordinary remedies such as
injunctions have a long history in jurisprudence of not only changing the course of conduct of
persons and entities, but also inducing significant political controversy, as in the anti-labor
injunctions of the late nineteenth century. Extraordinary remedies were developed at first in the
common law as a method to correct wrongs and provide relief that ordinary damages could not.
Classic extraordinary remedies that have developed over time to provide an injured party with
proper relief include writs of habeas corpus, mandamus, and quo warranto.
In Texas, as well as most American jurisdictions, the Legislature has codified most
extraordinary remedies. This paper focuses on the remedies codified and labeled extraordinary
remedies in the Texas Civil Practices and Remedies Code: (1) injunction; (2) receivership; (3)
attachment; (4) garnishment; (5) sequestration; and (6) quo warranto. Many of these remedies are
closely related, and this paper is to highlight and review some important considerations for the
use of several extraordinary remedies.
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II.
INJUNCTIVE RELIEF.
When a person has committed and continues to commit wrongful acts, it may not be
enough to sue the person for damages. At times, it is as important or even more important to stop
the offensive conduct or preserve the status quo. Injunctive relief may be an option in such
circumstances. An injunction can be ancillary to a cause of action or an independent ground for
relief.
There are three types of injunctive relief: (1) temporary restraining orderdesigned to
provide immediate relief without notice or hearing; (2) temporary injunctionissued after a
hearing for the purpose of maintaining the status quo pending trial; and (3) permanent
injunctionpermanent relief after a trial on the merits.
A.
Grounds for Relief: Statutes and Rules.
Chapter 65 of the Texas Civil Practices and Remedies Code sets forth the basic
requirements for injunctive relief, and Texas Rules of Civil Procedure 69093 provide the
procedural rules. Courts may issue a writ of injunction in any of the following situations:
(1)
(2)
(3)
(4)
(5)
The applicant is entitled to the relief demanded and all or part of the
relief requires the restraint of some act prejudicial to the applicant.
A party performs or is about to perform or is procuring or allowing
the performance of an act relating to the subject of pending
litigation, in violation of the rights of the applicant, and the act
would tend to render the judgment in that litigation ineffectual.
The applicant is entitled to a writ of injunction under the principles
of equity and the statutes relating to injunctions.
A cloud would be placed on the title of real property being sold
under an execution against a party having no interest in the real
property subject to execution at the time of sale, irrespective of any
remedy at law.
Irreparable injury to real or personal property is threatened
irrespective of any remedy at law.
TEX. CIV. PRAC. & REM. CODE 65.011.

In addition, there are many statutes that provide additional grounds for injunctive relief.
Express statutory requirements supersede equitable requirements applicable to common law
injunctions. Mortgagebanc & Trust Inc. v. State, 718 S.W.2d 865, 869 (Tex. App.Austin 1986,
no writ). The statutory ground may have more, fewer, or different elements than equitable
grounds. A party seeking injunctive relief based on statutory grounds must specify the statute
upon which he relies. Keep in mind that a petition and application for equitable injunctive relief
will not be interpreted to ask for statutory injunctive relief and does not preserve the unpleaded
statutory ground for appellate review. HILB, Rogal & Hamilton Co. v. Wurzman, 861 S.W.2d 30,
3435 (Tex. App.Dallas 1993, no writ).
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An injunction may be issued to protect both individual and property rights. Passel v.
Fort Worth Independent School District, 440 S.W.2d 61, 63 (Tex. 1969). But generally, courts
of equity do not have criminal jurisdiction and thus may not enjoin acts of omission merely on
the basis that they are violations of penal statutes. See Benton v. City of Houston, 605 S.W.2d
679, 681 (Tex. Civ. App. Houston [1st Dist.] 1980, no writ). And a private person generally
does not have standing to seek protection for a public right unless the plaintiff has suffered or is
threatened with a special injury. See, e.g., Pierce v. Southern Pacific Company, 410 S.W.2d
801, 802 (Civ. App.--Waco 1967, ref.) (no entitlement to injunctive relief when plaintiff's legal
interest in preserving park essentially same as that of general public).
However, injunctions are being sought on a variety of theories to restrain gang members
from public association, for example, are periodically utilized to try to prevent gang violence.
When considering an application for an injunction, look to all of the possible statutes that
may be relevant. In addition to the Civil Practices & Remedies Code, the following contain at
least one statutory injunction provision available to private litigants: Agriculture Code,
Alcoholic Beverage Code, Business & Commerce Code, Business Organizations Code, Code of
Criminal Procedure, Education Code, Election Code, Family Code, Finance Code, Government
Code, Health & Safety Code, Insurance Code, Labor Code, Local Government Code, Natural
Resources Code, Occupations Code, Probate Code, Property Code, Special District Local Laws
Code, Tax Code, Texas Business Corporation Act, Texas Revised Civil Statutes, Transportation
Code, and Water Code.
Because these statutes each have specific elements that must be met, this paper will focus
only on equitable injunctions.
B.
Procedure and Requirements: Injunctions Generally.
In order to obtain temporary or permanent injunctive relief, the plaintiff must

demonstrate four elements: (1) the existence of a wrongful act; (2) the existence of imminent
harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law.
Pinebrook Prop. v. Brookhaven Lake, 77 S.W.3d 487, 505 (Tex. App.--Texarkana 2002, pet.
denied).
1.
What Constitutes Sufficient Wrongful Conduct?
The applicant must show that the defendant has engaged or intends to engage in the
conduct for which the injunction is sought. The threat must not be merely speculative. Camarena
v. Tex. Employment Commn, 754 S.W.2d 149, 151 (Tex. 1988). Circumstantial evidence may
be sufficient to establish the required intention even when the defendant gives a solemn promise
that the conduct will not be committed. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 804
(Tex. 1979). Circumstantial evidence may be used to prove that the defendant intends to engage
in the conduct of which the plaintiff complains. When a jury finds violations occurring and
continuing up to or near the date of trial, the trial court may, in equity, determine that the
defendant has engaged in a settled course of conduct and may assume that it will continue absent
clear proof to the contrary. See, State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 804 (Tex.
1979).
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2.
What is Imminent Harm?
The underlying injury must be real and substantial. Parkem Indus. Servs., Inc. v. Garton,
619 S.W.2d 428, 430 (Tex. Civ. App.Amarillo 1981, no writ). Inconvenience is not sufficient.
Northcutt v. Waren, 326 S.W.2d 10, 10 (Tex. Civ. App.Texarkana 1959, writ refd n.r.e.). An
injunction will not issue to prevent merely speculative harm. See, e.g., Camarena v. Tex.
Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988).
3.
What is Irreparable Injury?
An injunction is not appropriate when the party can be adequately compensated with
damages. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). "Irreparable injury"
occurs when the injury is of such a nature that the injured party cannot be adequately
compensated for it in damages, or the damages cannot be measured by any certain pecuniary
standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ; Rimes v. Club Corp. of
Am., 542 S.W.2d 909, 911 (Civ. App.--Dallas 1976, ref. n.r.e.) (showing of irreparable injury
required).
An irreparable injury may be presumed in certain circumstances, such as an abrogation of
constitutional rights of speech or association. See, Iranian Muslim Org. v. City of San Antonio,
615 S.W.2d 202, 208 (Tex. 1981).
The injury will be considered in light of the circumstances, such as a trespass to mining
property, in which minerals may be destroyed, as opposed to just trespassing across someones
land. See, e.g., Hastings Oil Co. v. Tex. Co., 149 Tex. 416, 234 S.W.2d 389, 398 (1950).
4.
What Does No Adequate Remedy at Law Mean?
A plaintiff will be entitled to an injunction only if it appears from all the circumstances
that the plaintiff "has no adequate remedy at law for prevention or redress of wrongs and
grievance of which complaint is made." Hancock v. Bradshaw, 350 S.W.2d 955, 957 (Civ.
App.--Amarillo 1961, no writ) (adequate remedy of damages available). Plaintiff should pursue
a legal remedy, not an injunction, if pecuniary damages can be ascertained. Garland Grain Co. v.
D-C Homeowners Improvement Assn, 393 S.W.2d 635, 643 (Tex. Civ. App.Tyler, 1965, writ
refd n.r.e.). The plaintiff must show that no other remedy, such as a specific statutory or
administrative remedy, is available to fully compensate him for his injury. See, e.g., El Paso
Electric Co. v. Public Utility Commn, 727 S.W.2d 283, 286-287 (Tex. App. Austin 1987, no
writ). However, injunctive relief may be available if a legal remedy is less practical and
efficient. See Jeter v. Associated Rack Corp., 607 S.W.2d 272, 278 (Tex. Civ. App.Texarkana
1980, writ refd n.r.e.).
The question of whether a party has an adequate remedy at law is a question of law for
the court. The mere existence of a remedy at law is not a ground for denial of injunctive relief
unless the legal remedy is as practical and efficient to the ends of justice as the equitable remedy.
Jeter v. Associated Rack Corp., 607 S.W.2d 272, 278 (Civ. App.--Texarkana 1980, writ refd
n.r.e.). A plaintiff is not required to pursue the administrative process before obtaining injunctive
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relief if the agency cannot provide an adequate remedy. See, e.g., Houston Fed. of Teachers v.
Ind. Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987). Also, in an attachment case, the legal remedy
was held inadequate and injunctive relief was proper in a case in which the defendants had
followed a pattern of transferring funds to corporations that were under their control but outside
the court's jurisdiction. See Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 567-568 (Tex.
App.--Dallas 1984, no writ).
The determination of whether an adequate legal remedy exists appears to be a continuing
source of appellate litigation and a major point of contention at the trial court level.
5.
Doing Equity and Clean Hands.
In determining whether to grant injunctive relief, the court will also consider whether the
party seeking relief comes with clean hands. A person who would have equity must do equity.
Riley v. Davidson, 196 S.W.2d 557, 559 (Tex. Civ. App.--Galveston 1946, writ refd n.r.e)
(plaintiff who established water supply illegally was not entitled to enjoin removal of certain
pipes). In other words, a plaintiff may not obtain injunctive relief if his own wrongful conduct
created the problem. See Vaughan v. Kizer, 400 S.W.2d 586, 590 (Civ. App.--Waco 1966, writ
refd n.r.e.)(former employer who wrongfully refused to cover certain employee expenses was
barred by the unclean hands doctrine from obtaining injunctive relief to enforce a covenant not to
compete that was in the employment contract).
The clean hands requirement is not absolute, and the complaining party must have been
the party who was injured by the allegedly improper conduct. Omohundro v. Matthews, 341
S.W.2d 401, 410, 161 Tex. 367, 381 (1960).
6.
Balancing the Equities.
As a general rule, a court will apply a balancing doctrine when considering a plaintiffs
application for an injunction. The court will weigh any possible injury to the defendant and to
the public against the injury the plaintiff would sustain if the relief is not granted. Storey v. Cent.
Hide & Rendering Co., 226 S.W.2d 615, 61819 (Tex. 1950). The court may consider any
relevant factors to determine if the balance tips for or against an injunction. The balancing
doctrine does not factor into the courts analysis for statutory injunctive relief.
The balancing of equities may examine competing legal and constitutional rights. See
Right to Life Advo. v. Aaron Women's Club, 737 S.W.2d 564, 566-569 (Tex. App.--Houston
[14th Dist.] 1987, writ denied), cert. denied, 488 U.S. 824 (1988) (balancing constitutional
rights of free expression against property rights and right to conduct lawful business); see, e.g.,
Valenzuela v. Aquino, 763 S.W.2d 43, 45 (Tex. App.--Corpus Christi 1988, no writ) (right to free
speech and right to privacy). An injunction that limits constitutionally protected activities must
be narrowly drawn. Valenzuela v. Aquino, 763 S.W.2d 43, 45 (Tex. App.--Corpus Christi 1988,
no writ) (injunction permitted, but could not prohibit all picketing within half-mile radius from
the plaintiffs home).
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Injunctive relief is often sought in the employment context, in which one employer seeks
to enforce noncompetition agreements. For the most part, injunctions are available to protect a
former employer against employees who supposedly benefit from special training or inside
information and then depart to compete against the employer in violation of contractual
commitments. See Unitel Corp. v. Decker, 731 S.W.2d 636, 641 (Tex. App.--Houston [14th
Dist.] 1987, no writ) (continued breach of noncompetition agreement by highly trained employee
constitutes prima facie proof of probable injury). Three criteria must be meet if a noncompetition
agreement is to be considered enforceable. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 681682 (Tex. 1990) (on motion for rehearing):
(1) The agreement must be ancillary to an otherwise valid transaction or
relationship. See Martin v. Credit Protection Ass'n, Inc., 793 S.W.2d 667, 669
(Tex. 1990) (on motion for rehearing).
(2) The restraint created by the agreement must not be greater than necessary to
protect the promisee's legitimate interest.
(3) The promisee's need for protection must not be outweighed by hardship to the
promisor or injury to the public.
And the balancing of equities is not always required, such as in cases in which there is
statutorily authorized injunctive relief. See State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 805
(Tex. 1979). The doctrine of balancing of equities has been held to be inapplicable when the acts
sought to be restrained are expressly proscribed by statute. See, e.g., Texas Pet Foods, Inc. v.
State, 529 S.W.2d 820, 830 (Tex. Civ. App. - Waco 1975, writ refd n.r.e.) (defendant who was
violating state pollution statute was not allowed to present evidence concerning number of
employees given work by operation).
As you can see, the balancing of the equities is also a ripe area of litigation
7.
Antisuit Injunctions.
An important, but seldom-encountered, injunction is one to maintain control over

pending litigation. A Texas court that has subject matter jurisdiction over a pending suit and
personal jurisdiction over the parties to the suit also has the jurisdictional power to proceed to
judgment, and may protect its jurisdiction by enjoining the parties to a suit filed in another Texas
court. Gannon v. Payne, 706 S.W.2d 304, 305-306 (Tex. 1986). But Texas courts may not
enjoin litigants from proceeding with a suit filed in federal court. See Moses H. Cone Hospital v.
Mercury Constr. Corp., 460 U.S. 1, 21 n.24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
An antisuit injunction is appropriate in four instances: (1) to address a threat to the court's
jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of
suits; or (4) to protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v.
Harper, 925 S.W.2d 649, 651 (Tex. 1996). A trial court, in the exercise of its plenary power, can
issue an anti-suit injunction only if it will serve at least one of the Golden Rule purposes. Id. Yet
once a trial court has only post-final judgment jurisdiction, the sole purpose of an anti-suit
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injunction, compared with the four Golden Rule purposes, is to prevent another suit from
interfering with the enforcement of the trial court's judgment. See Milam County Oil Mill Co. v.
Bass, 163 S.W. 577, 578, 106 Tex. 260 (1914) (orig. proceeding)
Different Texas courts may also have specific requirements regarding injunctions, so it is
important to review each courts local rules before filing the petition. Every petition for
injunctive relief must be verified. TEX. R. CIV. P. 682. Every order granting injunctive relief must
set forth the reasons for its issuance, be specific in terms, and describe reasonable detail the act
or acts sought to be restrained. A person who participates in an injunction suit may be bound by
the order even if he is not named as a party. See id. at 683. If the enjoined party fails to obey the
courts injunctive order, the court may hold him in contempt.
8.
Jurisdiction.
Justice courts do not have power to issue permanent injunctive relief, but of course a
district court has power to grant all types of injunctive relief, if (1) the subject of the action or the
amount in controversy makes district court jurisdiction proper, or (2) there is no amount in
controversy. Tex. Const. art. 5 8; Tex. Civ. Prac. & Rem. Code 65.023; Tex. Gov't Code
24.007, 24.008, 24.011. A constitutional county court has the same power, provided that there is
an amount in controversy that is within its ordinary jurisdiction Tex. Const. art. 5 16; Tex.
Gov't Code 26.050, 26.051; Tex. Civ. Prac. & Rem. Code 65.023. A statutory county court
has the same power to grant injunctive relief, subject to restrictions on its subject matter
jurisdiction. Tex. Gov't Code 25.0004; Tex. Civ. Prac. & Rem. Code 65.023. Otherwise,
general rules of jurisdiction apply to injunction suits.
9.
Venue.
Chapter 65 of the Texas Civil Practice and Remedies Code generally governs venue.
Generally, writs of injunction against a party who is a resident of Texas must be tried in the
district or county court of the county in which the party is domiciled. If the writ is granted
against more than one party, it may be tried in the county in which any of these parties is
domiciled. Tex. Civ. Prac. & Rem. Code 65.023(a). An injunction suit to stay proceedings in
a suit or execution on a judgment must be tried in the court in which the suit is pending or the
judgment was rendered. Tex. Civ. Prac. & Rem. Code 65.023(b).
If the suit is not one primarily for injunctive relief, the standard venue rules apply, not
Section 65.023. See In Re Continental Airlines, Inc., 988 S.W.2d 733, 736 (Tex. 1998). And the
venue rules are not changed by contractual provisions to the contrary. Fidelity Union Life Ins.
Co. v. Evans, 477 S.W.2d 535, 537 (Tex. 1972).
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C.
Temporary Restraining Order.
A temporary restraining order is designed to provide emergency relief pending a hearing

on a temporary injunction. Tex. Aeronautics Commn v. Betts, 469 S.W.2d 394, 398 (Tex. 1971).
1.
Requirements of Application Sworn Pleading.
The petition for injunctive relief, including the TRO, must contain the elements outlined
above for declaratory relief generally. Since the relief is immediate, and must be based on
evidence, the petition must be sworn. Tex. R. Civ. P. 682. The affidavit must be based on
specific facts and may not be made on the basis of information and belief. Ex parte Rodriguez,
568 S.W.2d 894, 897 (Tex. Civ. App.--Fort Worth 1978, orig. proceeding).
2.
(No) Notice and Hearing.
The TRO may be granted without notice to the adverse party if it clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate and irreparable
injury, loss, or damage will result to the applicant before notice can be served and a hearing held.
Tex. R. Civ. P. 680.
3.
Bond Requirement.
A temporary restraining order issued without bond is void. Tex. R. Civ. P. 684. The rule
sets forth the requirements of the bond, but it must be in a penal amount fixed by the judge, and
generally with two or more sureties. The amount of the bond will typically be in at least the
amount that would compensate the opposing party for the delay in the event that the TRO was
improvidently granted.
4.
Time Period 14 Days.
Importantly, a temporary restraining order is issued for a period not to exceed 14 days,
but may be extended once for up to an additional 14 days with notice to the restrained party.
TEX. R. CIV. P. 680. It may be issued without notice and hearing when there is a threat of
immediate and irreparable injury. Id. The applicant must demonstrate immediate and irreparable
injury by specific facts set forth in an affidavit or verified petition. Id.
In other words, a TRO is generally good for only two weeks. The time calculation refers
to calendar days, not work days, and expires at the end of the day, not the exact time of the day
the order was signed.
5.
Requirements for the Order.
Rule 680 provides specific requirements that must be included in the temporary
restraining order. The order must be endorsed with date and hour of issuance, must be filed
immediately in clerks office, and must define the injury and state why it is irreparable and why
the order was granted without notice. Temporary restraining orders that fail to strictly comply
with these requirements are void. In re Office of the AG, 257 S.W.3d 695, 69798 (Tex. 2008).
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The restrained party may move to dissolve the temporary restraining order with two days
notice to the restraining party. TEX. R. CIV. P. 680.
6.
Appealability Not Usually.
The grant or denial of a temporary restraining order is ordinarily not appealable.

Nikolouzos v. St. Lukes Episcopal Hosp., 162 S.W.3d 678, 68081 (Tex. App.Houston [14th
Dist.] 2005, no pet.). However, a temporary restraining order that goes beyond protecting the
status quo pending hearing on a temporary injunction is appealable. Del Valle Indep. Sch. Dist. v.
Lopez, 845 S.W.2d 808, 809 n.2 (Tex. 1992).
D.
Temporary Injunction.
1.
General Requirements.
An application for a temporary restraining order must be accompanied by an application

for a temporary injunction, which must be set for hearing at the earliest possible date. The
temporary injunction picks up where a temporary restraining order leaves off, preserving the
status quo pending a trial on the merits and expires upon final judgment in the trial. A temporary
injunction order must set a date for a trial on the merits. TEX. R. CIV. P. 683. Most temporary
injunctions are prohibitory in nature, but a mandatory injunction, which requires some action
rather than prohibits it, is permitted in exceptional circumstances. Gunnels v. No. Woodland Hills
Cmty. Assn, 563 S.W.2d 334, 337 (Tex. Civ. App.Houston [1st Dist.] 1978, no writ).
The purpose of a temporary injunction is to preserve the status quo pending trial on the
merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). The status quo is often defined as
the last actual peaceable, noncontested status that preceded the controversy. Texas Aeronautics
Commission v. Betts, 469 S.W.2d 394, 398 (Tex. 1971), and may be a condition of action or of
rest. City of Garland v. Texas Power & Light Company, 342 S.W.2d 816, 820 (Civ. App.-Dallas 1961, no writ). The status quo that is preserved may not be a condition that is a violation
of law. Rattikin Title Company v. Grievance Committee, 272 S.W.2d 948, 955 (Civ. App.--Fort
Worth 1954, no writ).
As with an application for a temporary restraining order, in order to obtain a temporary
injunction, the applicant must plead and prove all three of the following specific elements:
(1) A cause of action against the defendant.
(2) A probable right to the relief sought.
(3) A probable, imminent, and irreparable injury in the interim.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
The applicant must make a prima facie case, but need not prove that he will ultimately
prevail. Henson v. Denison, 546 S.W.2d 898, 901 (Tex. Civ. App.Fort Worth 1977, no writ);
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Transp. Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 552 (Tex. 1953). The
temporary injunction does not have to be accompanied by an application for a permanent
injunction. Turcotte v. Alice Natl Bank, 402 S.W.2d 894, 896 (Tex. 1966). Typically, a
temporary injunction is accompanied by an underlying claim for damages, but that is not
necessary. Id.
A probable right of recovery is shown by alleging a cause of action and presenting
evidence tending to sustain it. Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex.
App.--Fort Worth 2003, no pet.).
2.
Hearing.
The court cannot issue a temporary injunction based only on sworn pleadings, but must
conduct a hearing. Goldthorn v. Goldthorn, 242 S.W.3d 797, 79899 (Tex. App.San Antonio
2007, no pet.). The applicant must give the adverse party notice of the hearing, which must be set
at the earliest possible date. See TEX. R. CIV. P. 680, 681, 686, 687. The parties may offer
testimony and cross-examine witnesses at the hearing. The hearing on the temporary injunction
must be set "at the earlie st possible date and takes precedence of all matters except older matters
of the same character." Tex. R. Civ. P. 680.
At a hearing on an application for a temporary injunction, the sole question before the
court is the right of the party seeking the injunction to the preservation of the status quo of the
suit's subject matter pending a final trial on the merits. Telephone Equip. Network v.
TA/Westchase Place, 80 S.W.3d 601, 607 (Tex. App.--Houston [1st Dist.] 2002, no pet. h.). The
applicant for the injunction has the burden of proof to make a prima facie case. Henson v.
Denison, 546 S.W.2d 898, 901 (Civ. App.--Fort Worth 1977, no writ); a showing of a probable
right to recovery and probable injury makes out the necessary prima facie case. Lambda Constr.
Co. v. Alice, 729 S.W.2d 377, 380 (Tex. App.--San Antonio 1987, no writ). It is an abuse of
discretion for a trial court to issue a temporary injunction if the party seeking the injunction has
failed to offer evidence of probable harm. Texas State Bd. of Educ. v. Guffy, 718 S.W.2d 48, 50
(Tex. App.--Dallas 1986, no writ).
3.
Bond Requirement.
As with a temporary restraining order, the applicant must execute and file a bond that is
guaranteed by at least two good and sufficient sureties and be conditioned that the applicant will
abide any decision that may be made in the cause and pay all sums of money and costs that may
be adjudged against him if the injunction is dissolved. Id. at 684. The bond requirement is
excused in the case of certain indigent applicants who meet the requirements set out in section
65.042 of the Texas Civil Practices and Remedies Code. The bond applicable to the TRO will
apply to the temporary injunction.
The bond provision is mandatory, and a temporary injunction issued without a bond is
void. Ex parte Lesher, 651 S.W.2d 734, 736 (Tex. 1983). Still, a bond that suffers from a form
defect that could have been corrected on motion will not necessarily void an injunction. Oil
Field Haulers Ass'n v. Railroad Commission, 381 S.W.2d 183, 190 (Tex. 1964).
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4.
Requirements of Order.
The same rules of specificity that apply to a TRO apply to the order granting a temporary
injunction, so the temporary injunction order must:
(1) Set forth the reasons for its issuance;
(2) Be specific in terms;
(3) Describe in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained;
(4) If granting a temporary injunction, include an order setting the cause for trial on the
merits with respect to the ultimate relief sought.
Tex. R. Civ. P. 683; see Bankler v. Vale, 75 S.W.3d 29, 33-35 (Tex. App.--San Antonio
2001, no pet.).
The specificity requirement may be met if the order recites that (1) the party seeking the
injunction had no adequate remedy at law, (2) the rights involved were unique and irreplaceable,
and (3) money damages would not be a sufficient remedy. Pinebrook Properties v. Brookhaven
Lake, 77 S.W.3d 487, 504-505 (Tex. App.--Texarkana 2002, pet. denied).
5.
Interlocutory Appeal.
An order granting a temporary injunction is subject to interlocutory appeal. TEX. CIV.

PRAC. & REM. CODE 51.014(a)(4). Furthermore, a temporary injunction is appealable if the
court denies a motion to dissolve or increases the amount of bond. Id. Appellate review is limited
to a determination of whether the applicant is entitled to a preservation of the status quo pending
trial, and is only overturned if the court finds a clear abuse of discretion. See Brooks v. Expo
Chem. Co., Inc., 576 S.W.2d 369, 370 (Tex. 1979); see also Tel. Equip. Network v.
TA/Westchase Place, 80 S.W.3d 601, 607 (Tex. App.Houston [1st Dist.] 2002, no pet.)
(appellate court will not substitute its judgment for that of trial court, but will only determine
whether trial courts action was so arbitrary as to exceed bounds of reasonable discretion).
The court may proceed with a trial on the merits while the appeal is pending. TEX. CIV.
PRAC. & REM. CODE 51.014(b). Should the parties choose not to appeal the temporary
injunction, the doctrine of res judicata has no effect at the trial on the permanent injunction.
Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). The reasoning for this rule is that the merits
of the case are not decided at the temporary injunction hearing. However, a party that appeals a
temporary injunction order is bound by any matters fully litigated at the hearing as if the appeal
were from a final judgment. Texaco Inc. v. Parker, 373 S.W.2d 870, 872 (Tex. Civ. App.El
Paso 1963, writ refd n.r.e.).
Be aware that courts frown on parties who attempt to use an interlocutory appeal as a
vehicle for getting an advance ruling on the merits of the case. See Hiss v. Great N. American
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Companies, 871 S.W.2d 218, 21920 (Tex. App.Dallas 1993, no writ) (appeal was improper
attempt to obtain advance ruling on the merits and was frivolous).
5.
Accelerated Hearing/Joint Hearing on Merits.
Often, the hearing on the temporary injunction is virtually the same as would be adduced at the
trial on the merits, and on the permanent injunction. In the interest of judicial and other
economy, the parties may agree to waive the right to a separate trial on the merits and instead
hear the temporary and permanent injunction at the same time. Indeed, the trial court may
eliminate two hearings and appeals and try all matters together. See Iranian Muslim Org'n v.
City of San Antonio, 615 S.W.2d 202, 208-209 (Tex. 1981).
E.
Permanent Injunction.
1.
Hearing.
Finally, a permanent injunction is the ultimate injunctive relief. Once it has held a trial
on the merits, the court may issue a permanent injunction. Gensco, Inc. v. Thomas, 609 S.W.2d
650, 651 (Tex. Civ. App.San Antonio 1980, no writ). A permanent injunction requires a
showing of the elements required for all injunctive relief, as discussed above. Triantaphyllis v.
Gamble, 93 S.W.3d 398, 401 (Tex. App.Houston [14th Dist.] 2002, pet. denied).
2.
No Bond.
Although the application for permanent injunction must state the specific grounds for the
relief sought, there is no requirement for a bond. TEX. R. CIV. P. 685. At trial, a jury determines
the ultimate issues of fact, but the court determines, based on the facts as determined by the jury,
whether to grant a permanent injunction. State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803
(Tex. 1979).
3.
Requirements of Order/Judgment.
An order for permanent injunction must describe the acts to be restrained in reasonable
detail, but need not set forth the reasons for its issuance. TEX. R. CIV. P. 683. The order must be
clear, definite, and precise in order to inform the defendant of the specific acts he is refrained
from doing. Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 22021
(Tex. App.Dallas 2005, no pet.). The order must not be so broad that it enjoins lawful conduct.
Id. The order granting the injunction must be specific in terms and must describe the acts to be
restrained in reasonable detail and not by reference to the complaint or any other document. See
Tex. R. Civ. P. 683. Orders granting injunctions require the defendants to act or refrain from
acting in a particular manner, and therefore must be definite, clear, and precise, and must inform
the defendant of the acts that the defendant is refrained from doing without requiring inferences
or conclusions about which persons might differ. Computek Computer & Office Supplies, Inc. v.
Walton, 156 S.W.3d 217, 220-221 (Tex. App.--Dallas 2005, no pet. h.).
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The trial court issuing the injunction retains jurisdiction to review, open, vacate, or
modify the order upon a showing of changed conditions. Kubala Public Adj., Inc. v. Unauth.
Prac. of Law, 133 S.W.3d 790, 79495 (Tex. App.Texarkana 2004, no pet.).
4.
Appellate Review.
A permanent injunction is subject to appellate review in the same manner as other

judgments, and is reviewed on a clear abuse of discretion standard. Pinebrook Props. v.
Brookhaven Lake, 77 S.W.3d 487, 505 (Tex. App.Texarkana 2002, pet. denied).
F.
How to Enforce an Injunction?
Of course the first and most direct method of enforcing an injunctive order is to seek an
order of contempt. See Tex. R. Civ. P. 692 (entitled Disobedience); Ex parte Smyers, 529
S.W.2d 769, 770 (Tex. 1975). This is why the orders have to be clear about what conduct is
prohibited.
G.
Wrongful Injunction Suits.
Yes, there is a catch to the filing of a suit for an in junction. The party filing the suit may
face a counterclaim for wrongful injunction. There are two causes of action for wrongful
injunction: an action on the injunction bond and an action for malicious prosecution. A cause of
action on the injunction bond requires proof that injunction order should not have been issued
and was later dissolved. It is not necessary to prove that it was obtained maliciously or without
probable cause, but recovery is limited to the amount of the bond. DeSantis v. Wackenhut Corp.,
793 S.W.2d 670, 68586 (Tex. 1990).
In addition, the enjoined party may sue for malicious prosecution when the injunction
was prosecuted maliciously and without probable cause, and was terminated in the partys favor.
Id. A suit for malicious prosecution for wrongful injunction can utilize the same damages as in
any other malicious prosecution case.
H.
Practical Considerations The External Force that Disrupts the Inertia of

the Lawsuit.
In addition to the concerns about the potential for a counterclaim for a wrongful
injunction, litigation counsel and their clients face a much more practical concern that, I suspect,
often dissuades the litigants from pursuing injunctive relief.
Since the TRO is generally only good for 14 days, and the temporary injunction hearing
must be held very quickly, the party filing the suit must be prepared to set aside all other cases
and problems in order to marshal and present evidence at the temporary injunction hearing. It is
possible to conduct expedited discovery prior to the temporary injunction hearing, particularly
depositions.
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Depending on the type of case, it is conceivable that the lawyers and clients will spend a
lot of time and money in conducting expedited investigations, interviews, and discovery prior to
the filing of the application for injunctive relief. The client and lawyers need to be prepared for
the effort and costs that are largely captured at the outset of a case, rather than over the course of
time.
It is also likely that a case in which injunctive relief is sought will resolve long before the
case gets to the permanent injunction stage. Permanent injunctions rarely get to trial.
II.RECEIVERSHIP
In certain situations, the law allows a court to appoint a disinterested third party, known
as a receiver, to hold possession of property at issue in litigation. The receiver takes control of
the property and acts in the propertys best interest, though the court retains exclusive
jurisdiction over the property. Because this extraordinary remedy deprives the owner of its
property and can effectively destroy ownership, courts consider it one of the harshest remedies
known to the law. Jones v. Strayhorn, 321 S.W.2d 290, 294 (Tex. 1959).
A.
Statutes and Rules.
Several different statutes authorize receivership under various circumstances. The general
controlling statute for receivership is chapter 64 of the Texas Civil Practices and Remedies Code,
as well as Rules 659 and 659a of the Texas Rules of Civil Procedure. But other specific statutory
receiverships include: business entities, TEX. BUS. ORGS. CODE 11.403 et seq.; religious
congregations, TEX. CIV. PRAC. & REM. CODE 126.001 et seq.; insurers, TEX. INS. CODE art.
21.28; marital property, TEX. FAM. CODE 6.502(5), 6.709(3); and mineral interests, TEX. CIV.
PRAC. & REM. CODE 64.09192. To determine the law that will control the receivership,
consider the nature of the parties and their relationship, as well as the purpose of the
receivership.
B.
Procedure and Requirements.
Unless otherwise prescribed by statute, in general, a party seeking the appointment of a

receiver must have a probable interest in or right to the property. TEX. CIV. PRAC. & REM. CODE
64.001(b). The property must also be in danger of being lost, removed, or materially injured. Id.
at 64.001(b), (c). The receiver can ordinarily be any citizen and qualified voter of Texas at the
time of appointment who is not a party, attorney, or other person interested in the action, and
maintains actual residence in Texas during the receivership. Id. at 64.021.
An interested party should file an application to appoint a receiver, but the application for
a particular corporation, partnership, or individual may not be brought by that same corporation,
partnership, or individual. Id. at 64.002(a). If the receivership is ancillary to another cause of
action, the party must file the application in the court in which the primary case is being litigated.
See Greenland v. Pryor , 360 S.W.2d 423, 425 (Tex. Civ. App.San Antonio 1962, no writ).
The application should include all persons or entities over whose properties the receivership is
sought. Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 747 (Tex. Civ. App.Corpus
Christi 1970, no writ). The party seeking the receivership should also provide at least three days
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notice to the adverse party. TEX. R. CIV. P. 695. Only in the most extreme circumstances,
showing a compelling emergency, will a court appoint a receiver ex parte. See N. Side Bank v.
Wachendorfer, 585 S.W.2d 789, 791 (Tex. Civ. App.Houston [1st Dist.] 1979, no writ);
Associated Bankers, 456 S.W.2d at 750.
The petition seeking the appointment of a receiver should state a cause of action within
the jurisdiction of the court, allege facts that entitle the applicant to relief under the appropriate
statute or usage of equity, and describe the property to be placed in the receivers control.
Associated Bankers , 456 S.W.2d at 749. The court should hold a hearing, where it may consider
allegations of a verified petition as evidence sufficient to authorize the appointment of a receiver,
unless the opposing party objects. Carroll v. Carroll , 464 S.W.2d 440, 447 (Tex. Civ. App.
Amarillo 1971, writ dismd). If the opposing party files a sworn denial, the plaintiff has the
burden of proof to establish the allegations in the petition by a preponderance of the evidence
Fradelis Frozen Food Corp. v. Gamble, 326 S.W.2d 293, 294 (Tex. Civ. App.San Antonio
1959, no writ). In addition to its petition, the party seeking appointment of a receiver must post a
bond payable to the defendant in the amount fixed by the court. An applicants bond is
conditioned on payment of all damages and costs in the suit, in case it is decided that the receiver
was wrongfully appointed.
If a receiver is appointed to take control of your property, you may move the appointing
court to vacate the appointment. The motion to vacate may be based either on some new matter
concerning the propriety of the order that was previously unknown to the trial court or on a
fundamental error that renders the order void. Couch Mortgage Co. v. Roberts, 544 S.W.2d 944,
94546 (Tex. Civ. App.Houston [1st Dist.] 1976, writ dismd). If you succeed in having the
appointment vacated, you may nullify the actions of the receiver and court orders directing the
receivership. Christie v. Lowrey, 589 S.W.2d 870, 873 (Tex. Civ. App.Dallas 1979, no writ).
Unlike many other extraordinary remedies, a person has the right to appeal from an
interlocutory order appointing a receiver or overruling a motion to vacate an order that appointed
a receiver. TEX. CIV. PRAC. & REM. CODE 51.014(a)(1) . Consequently, it may be advisable to
appeal an appointment rather than file a motion to vacate. Unlike an appeal, a motion to vacate
may constitute a waiver of irregularities in the original appointment Best Inv. Co. v. Whirley, 536
S.W.2d 578, 583 (Tex. Civ. App.Dallas 1976, no writ). Similarly, if circumstances change that
make the receivership unnecessary, the appropriate action is a motion to dissolve and terminate
the receivership, not a motion to vacate the receiver. Christie, 589 S.W.2d at 873.
C.
Things to Consider.
1.
Suits Against the Receiver.
Once appointed, a receiver steps into the shoes of the party for whom it is acting, and
may be sued in his or her official capacity. TEX. CIV. PRAC. & REM. CODE 64.033. Any
judgment against the receiver is a lien on all property held by the receiver, superior even to the
mortgage lien of a mortgagee who instituted the receivership. Id. at 64.054.
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2.
Constitutional Issues.
It is a violation of the due process clause of the Fourteenth Amendment to the United
States Constitution for a state to participate in the impoundment or taking of personal property
without prior notice and opportunity for hearing except in unusual circumstances Fuentes v.
Shevin, 407 U.S. 67, 82 (1972); Sniadach v. Family Fin. Corp., 395 U.S. 337, 33839 (1969).
However, as with the other statutory remedies in this paper, the Texas procedure for an ex parte
appointment of a receiver probably has sufficient safeguards to satisfy the Fourteenth
Amendment.
3.
Receivers Fees.
A receiver acts for the benefit of the property in the receivership, not any particular party. His or
her fees are considered part of the court costs and are generally payable out of the receivership or
its proceeds. Hodges v. Penden, 634 S.W.2d 8, 12 (Tex. App.Houston [14th Dist.] 1982, no
writ).
4.
Alternative Remedies.
A receivership is one of the harshest remedies available in Texas, and can destroy a
business whose assets are ordered into receivership. Other remedies may be more effective in a
particular case. If you have real and present ownership or security interest in specific property in
the debtors possession, you may be eligible for a writ of sequestration. See supra, Part VI. You
may also consider a temporary restraining order aimed at preserving the status quo of the
property until a hearing, but remember that the issuance of an ex parte temporary restraining
order requires proof that immediate and irreparable injury, loss, or damage will result before
notice can be served. See supra, Part II.
III.
ATTACHMENT
When litigation is pending, a plaintiff may be concerned that the defendant will dispose
of or conceal assets. Attachment, available as an ex parte remedy, allows a creditor who is suing
a debtor to secure the debt by levying on the debtors non-exempt property before judgment.
Attachment is not an independent cause of action, and a plaintiff may not obtain a writ of
attachment before filing suit or after judgment. Because attachment is an oppressive and harsh
remedy, it is subject to rigid rules of construction.
A.
Statutes and Rules.
Chapter 61 of the Texas Civil Practices and Remedies Code and Rules 592609 of the
Texas Rules of Civil Procedure govern writs of attachment. A plaintiff may obtain a writ of
attachment only if the defendant is justly indebted to the plaintiff, the attachment is not sought
for the purpose of injuring or harassing the defendant, the plaintiff will probably lose the debt
unless a writ of attachment is issued. TEX. CIV. PRAC. & REM. CODE 61.001. Additionally, at
least one of the following specific statutory grounds exists:
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(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
the defendant is not a resident of this state or is a foreign corporation or is

acting as such;
the defendant is about to move from this state permanently and has refused
to pay or secure the debt due the plaintiff;
the defendant is in hiding so that ordinary process of law cannot be served
on him;
the defendant has hidden or is about to hide his property for the purpose of
defrauding his creditors;
the defendant is about to remove his property from this state without
leaving an amount sufficient to pay his debts;
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;
the defendant has disposed of or is about to dispose of all or part of his
property with the intent to defraud his creditors;
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; or
the defendant owes the plaintiff for property obtained by the defendant
under false pretenses.
Id. at 61.002.
B.
Refer to Texas Rules of Civil Procedure 592609 to ensure strict compliance with the
procedural rules for issuing a writ of attachment. A verified application for attachment, which
should be filed after or contemporaneously with filing the original petition in the underlying suit,
should include the general grounds for issuance of writ, the specific grounds for issuance of writ
stated either conjunctively or disjunctively, and the amount of plaintiffs demand in underlying
suit. Additionally, the application must indicate the specific facts relied on to warrant specific
factual findings to support the statutory grounds, the maximum value of the property that may be
attached, the amount of the plaintiffs bond, and the amount of the defendants replevy bond.
TEX. R. CIV. P. 592. Support the application with affidavits based personal knowledge or on a
basis of information and belief if the grounds for the belief are specifically stated. If the
application is to be presented ex parte, assert that there is a reasonable fear that notice of motion
for writ will prompt defendant to do very act sought to be prevented by attachment.
The order authorizing issuance of writ of attachment should state: (1) that statutory
grounds are supported by specific findings of fact; (2) the maximum value of property that may
be attached; (3) the amount of bond required of plaintiff; (4) the amount of bond required of
defendant who wishes to replevy; (5) a command that attached property be kept safe and
preserved; and (6) command that writ issue or, if multiple writs are sought, that writs issue either
at same time or in succession. TEX. R. CIV. P. 592.
Before obtaining a writ of attachment, the plaintiff must execute a bond that is payable to
the defendant in an amount fixed by the court and conditioned on the plaintiff prosecuting the
suit to final judgment and paying any eventual damages and costs for wrongful attachment. TEX.
CIV. PRAC. & REM. CODE 61.023(a); see also TEX. R. CIV. P. 592a, 592b (form of attachment
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bond). The bond must name two or more good and sufficient sureties or, if the bond names a
licensed insurance company as surety, a single surety is sufficient. TEX. INS. CODE art. 7.19-1.
Deliver the bond to the officer issuing the writ for the officers approval, and then file it with the
papers of the case. TEX. CIV. PRAC. & REM. CODE 61.023(b).
Once the officer issues the writ, the sheriff or constable must immediately execute the
writ by levying on as much of the defendants property in the county as is necessary to satisfy the
amount specified in the writ. TEX. R. CIV. P. 597. As soon as possible after levy, serve the
defendant with copies of the writ of attachment, application, accompanying affidavits, and orders
of the court. If you obtain a writ, failure to prosecute the underlying action to final judgment may
result in liability to the owner for expenses of custody and for any other damages.
After execution, the officer must endorse and sign the writ and describe in writing the
action taken. The executing officer must return the writ to the issuing court at or before 10 a.m.
of the Monday immediately after the expiration of 15 days from the date on which the writ was
issued. TEX. R. CIV. P. 606. In making this return, the officer is required to (1) describe the
property that was attached with sufficient certainty to identify it; (2) state when the attachment
was made; (3) state whether any attached personal property remains in his or her hands; and, (4)
if no attached personal property remains in his or her hands, to indicate the disposition of the
property. Id..
An executed writ of attachment creates a lien on the property. TEX. CIV. PRAC. & REM.
CODE 61.061. The lien is created as of the date of the levy, but is contingent in nature until there
is an actual judgment against the defendant. Upon judgment against the defendant, the lien is
foreclosed and the court orders the foreclosure sale of the attached property. There must be a
sale of the property in order for you to become the owner of the attached property. 3-C Oil Co. v.
Modesto Pship, 668 S.W.2d 741, 748 (Tex. App.Austin, 1984, writ refd n.r.e.).
Under certain circumstances, a defendant may move the court for a substitution of
property of equal value to the property attached, and the court may then authorize the
substitution of one or more items of the defendants property for all or part of the property
attached. TEX. R. CIV. P. 599. When attempting to substitute property, the defendant has the
burden of proving facts that justify the substitution. See id. at 608. If successful, attachment of
substituted property is deemed to exist from the date of levy on the property that was originally
attached.
An alternative to substitution is replevy. At any time before judgment, the defendant may
replevy unclaimed and unsold attached property or proceeds from a court ordered sale of
property. To do so, the defendant must make a replevy bond, naming sufficient sureties. TEX Id.
at 599. Upon hearing with notice to the opposing party, the court may review and approve or
modify the amount of the replevy bond, the denial of a bond, the sufficiency of the sureties, and
the estimated value of the property. The officer is required to deliver the replevy bond to the
court and to file a signed, written return describing the disposition of the property, both of which
are required to be filed with the papers of the case. Id. at 606, 607.
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When a defendant has replevied attached personal property, the judgment against the
defendant, as well as his sureties, is either for the amount specified in the judgment plus interest
and costs, or for an amount equal to the value of the replevied property plus interest, according to
the terms of the replevy bond. TEX. CIV. PRAC. & REM. CODE 61.063.
It is important to note that if a defendant or third party who claims an interest in the
attached property files a motion to vacate, dissolve, or modify the writ, all proceedings under the
writ are stayed pending a hearing and ruling on the motion. At the hearing, the plaintiff will have
to prove the grounds relied on for the issuance of the writ. The defendant has the burden of proof
on allegations regarding the value of the property. An order vacating or dissolving the writ also
vacates the replevy bond and discharges the sureties. TEX. R. CIV. P. 608.
C.
Things to Consider.
1.
Wrongful Attachment.
A party claiming an interest in wrongfully attached property may assert a claim for
damages. A wrongful attachment occurs when (1) none of the statutory grounds in the
application for the writ and any supporting affidavits are found to exist; (2) the due process rights
of a party claiming an interest in the property have been violated; or (3) other defects appear in
the attachment pleadings, proceedings, or bond. See Gossett v. Jones, 123 S.W.2d 724, 725 (Civ.
App.Galveston 1939, no writ). While not statutory, a cause of action for wrongful attachment
exists as a deterrent to indiscriminate action by an attaching creditor. The court will not consider
the alleged good faith of a plaintiff in determining whether an attachment was wrongful, but will
take that into consideration when determining exemplary damages.
2.
There are constitutional questions to consider when seeking a writ of attachment. While
it appears that the Texas procedural rules governing attachment meet the due process
requirements of the United States Constitution, it is not clear to what extent the Texas statutory
grounds for ex parte attachment will pass constitutional muster. It is uncertain what kind of
extraordinary situation or exigent circumstance justifies a prejudgment, ex parte seizure of
property, and whether the Texas statutes specify constitutionally permissible grounds.
3.
Given the constitutional questions that concern the Texas ex parte attachment process,
you may prefer to use an alternative remedy. Other remedies may be more effective than
attachment in a particular case. If you have real and present ownership or security interest in
specific property in the debtors possession, you may be eligible for a writ of sequestration. See
infra, Part VI. You may also consider a temporary restraining order aimed at preserving the
status quo of the property until a hearing, but remember that the issuance of an ex parte
temporary restraining order requires proof that immediate and irreparable injury, loss, or damage
will result before notice can be served. See supra, Part II.
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IV.
GARNISHMENT
At times, a creditor may be unable to satisfy a judgment directly from a debtor because
the debtors property, money, or credits are in the possession of a third person. In such cases, the
creditor may garnish the property in possession of the third person and apply it to the payment of
a debt the debtor owes the creditor. Since garnishment proceedings bring a third party into the
lawsuit between the creditor and debtor, resulting in inconvenience to an innocent party, the
proceedings must be conducted in strict compliance with the statutory rules.
A.
Statutes and Rules.
Texas Rules of Civil Procedure provide the rules regarding garnishment. A writ of garnishment
is available under any of the following three circumstances:
(1)
(2)
(3)
An original attachment has been issued;

The plaintiff is suing for a debt and makes an affidavit stating that: (a) the
debt is just, due, and unpaid; (b) within the plaintiffs knowledge, the
defendant does not possess property in Texas subject to execution
sufficient to satisfy the debt; and (c) the garnishment is not sought to
injure the defendant or the garnishee; or
The plaintiff has a valid, subsisting judgment and makes an affidavit
stating that, within the plaintiffs knowledge, the defendant does not
possess property in Texas subject to execution sufficient to satisfy the
judgment.

B.
A writ of garnishment tells the garnishee when and where to appear to answer questions
concerning the garnishees indebtedness to the defendant, any effects of the defendants that are
in the garnishees possession, and any other potential garnishees. The writ also forbids the
garnishee from paying any debt to the defendant or delivering any of the defendants effects to
him or her. See TEX. R. CIV. P. 661.
To support the issuance of a writ of garnishment, the suit to which the garnishment
proceedings are ancillary must involve damages that are liquidated and certain, not contingent or
within the discretion of a jury. Most writs of garnishment issue after judgment in the underlying
suit, and, due to Constitutional implications, there are additional requirements for pre-judgment
writs.
1.
Property Exempt from Garnishment.
Some entities and some types of funds and assets are protected by restrictions on their
garnishment or are exempt from garnishment altogether. Governmental entities are generally
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immune from garnishment, but may waive immunity by statute. Veterans Admin. v. Kee, 706
S.W.2d 101, 101 (Tex. 1986). Certain personal property that does not exceed an aggregate fair
market value of $30,000 for a single adult, or $60,000 for a family, is exempt from garnishment.
See TEX. PROP. CODE 42.001. In addition, the following types of assets are typically exempt
from garnishment:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Current wages for personal services, except for the enforcement of courtordered child support payments. TEX. CIV. PRAC. & REM. CODE 63.004.
Retirement benefits. TEX. PROP. CODE 42.0021(a).
Insurance benefits. TEX. INS. CODE 1108.051(b), 1108.053.
Workers compensation benefits. TEX. LAB. CODE 408.201.
Money payable under the state medical assistance program. TEX. HUM.
RES. CODE 32.036.
Bonds of personal representatives of estate. TEX. PROB. CODE 194(9).
Proceeds of the sale of a homestead (for six months after sale). TEX. PROP.
CODE 41.001(c).
Money subject to mechanics lien laws. Id. at 53.151.
Funds that have been deposited with a court clerk. Houlle v. Martin, 35
S.W.2d 785, 78687 (Tex. Civ. App.Texarkana 1931, no writ).
2.
Pre-judgment Writ of Garnishment.
To obtain a pre-judgment writ of garnishment, there must be a hearing and written order
granting the application for a writ to issue before final judgment. The hearing may be ex parte.
The order must include: (1) specific fact findings to support the statutory grounds for issuance of
the writ; (2) the maximum value of property or indebtedness that may be garnished; (3) the
amount of bond required of the plaintiff; and (4) the amount of bond required of the defendant to
replevy. TEX. R. CIV. P. 658.
You must file a bond with the officer authorized to issue the writ. Id. at 658a. The amount
set by the court must adequately compensate the defendant in the event you do not prosecute the
suit to effect and pay all damages and costs for wrongful attachment. Id. The bond must be
payable to the defendant and have sufficient sureties. Id.
Upon hearing and payment of the bond, the procedure for obtaining a pre-judgment writ
of garnishment is the same as for a post-judgment writ of garnishment.
3.
Post-judgment Writ of Garnishment.
Typically, judgment in a garnishment action must await a final judgment in the

underlying suit. A judgment is final from and after the date it is signed, unless a supersedeas
bond has been approved and filed in accordance with Texas Rule of Appellate Procedure 24.
TEX. R. CIV. P. 657; see TEX. CIV. PRAC. & REM. CODE 63.001(3). In addition to proving that
the underlying judgment is final, the garnishor must prove that the judgment is unsatisfied at the
time of trial in the garnishment case and that the garnishor owns the judgment.
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You may file an application for a writ of garnishment, supported by affidavits, at the
commencement of or anytime during a suits progress. In the application, state the grounds for
issuing the writ and the specific facts you relied on to warrant the required findings by the court.
TEX. R. CIV. P. 658. The court will be docket the case as a separate case from the underlying
action, in the name of the garnishor as plaintiff and garnishee as defendant. Id. at 659. Once the
writ is delivered to the sheriff or constable, he will execute the writ by delivering a copy to the
garnishee. Id. at 663. You must serve the debtor as soon as practicable with the writ and include
notice that his property has been garnished and he has the right to replevy the property or move
to dissolve the writ. Id. at 663a.
Upon serving the writ of garnishment, the garnishee may not deliver any effects or pay
any debt to the debtor. The writ impounds any indebtedness of the garnishee to the defendant
that is in the hands of the garnishee at the time the writ is served and any that accrues between
the date of service of the writ and the date of the answer. Once a writ of garnishment has been
served, the garnishee holds the funds or assets as an officer or receiver for the court, and the
debtor may not assign or otherwise dispose of the funds. The garnishee will be liable to the
garnishor for any funds wrongfully transferred during the pendency of the suit.
Remember that a debtors discharge in bankruptcy during the garnishment proceedings
will preclude the creditor from garnishing funds. And a garnishee who is also a creditor of the
defendant has a right to set off that indebtedness against the property or fund garnished. The
garnishee will not be held liable to the defendant for conversion when detaining goods as
required by the writ. Service of a writ of garnishment establishes a priority in favor of the
garnishor. If there are multiple garnishors, they will be paid in the order in which the writs were
served. A replevy bond assumes the liability of the garnishee, but stands in place of the funds
held by the garnishee for purposes of paying the judgment against the defendant.
4.
Defendants Response to Writ of Garnishment.
If the property has not been claimed or sold before judgment in the garnishment
proceeding, the defendant may replevy all or part of his property. He may replevy the proceeds
from the sale of the property. The defendant is required to give bond with sufficient surety
payable to the plaintiff. The bond must be conditioned that the garnishee will satisfy any
judgment against him.
The defendant or any party with an interest in the garnished property may move to
vacate, dissolve, or modify the writ of garnishment, alleging Constitutional or procedural defects.
TEX. R. CIV. P. 664a. Such a motion stays proceedings under the writ pending the determination
of the motion. Id. Upon a motion to dissolve a writ of garnishment, the garnishor has the burden
to prove each requirement for the issuance of the writ has been met. Id.
An order vacating or dissolving a writ of garnishment serves to vacate any replevy bond
that has been given and to discharge the sureties on any such bond. Id. A court does not have
authority to dismiss a writ of garnishment on its own motion.
In a motion to modify, the movant has the burden of proving that the reasonable value of
the garnished property exceeds the amount necessary to secure the debt, interest for one year,
4334346.1
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and probable costs. Id. If the order to issue the writ or the writ is modified, the court must make
further orders with respect to any replevy bond that are consistent with the modification. Id.
Upon defendants motion, the court may authorize substitution of one or more items of
the defendants property for all or part of the garnished property, after making findings as to the
value of the property to be substituted. Id. at 664.
The garnishee must file an answer to the writ in a signed writing, under oath, answering
all inquiries set forth in the writ or risk default judgment. Id. at 665. The garnishee may answer
after the due date, as long as default judgment has not been rendered against it. Id. at 667. The
garnishee may answer before the due date, but doing so will not protect funds received before the
answer due date from garnishment. The garnishees answer is presumed to be true, but a plaintiff
or defendant may file a controverting affidavit. Id. at 673.
If multiple parties have an interest in funds held by a garnishee, the garnishee may
deposit the funds in question into court and interplead all claimants to the funds in order to
protect itself against double liability. Each claimant then has to prove its own claim and its
relative priority as to all other claimants.
5.
Garnishment Proceedings.
A garnishees answer is presumed true unless controverted by plaintiff. If uncontroverted,

the court will render judgment based on a garnishees answer. If controverted, the garnishment
action proceeds in the county in which garnishee resides. If the court finds that the garnishee is
indebted to the defendant, it will render judgment for the garnishor against the garnishee for the
amount of indebtedness found. TEX. R. CIV. P. 668. If the garnishee has possession of any effects
of the defendant subject to execution, the court will order the sale of those effects under
execution in satisfaction of the plaintiffs judgment and directing the garnishee to deliver them,
or so much of them as is necessary to satisfy the plaintiffs judgment, to the proper officer for
that purpose. Id. at 669.
The garnishor is responsible for the costs of the garnishment proceeding, including
reasonable compensation to the garnishee, if the garnishee is discharged on its answer. If
judgment is rendered against the garnishee on an uncontested answer, costs will be taxed against
the defendant in the underlying action and included in the execution in the garnishment
proceedings. If the case is contested, costs will be award to the prevailing party. Id. at 677.
C.
Things to Consider.
When seeking to garnish property in the possession of a third person, the garnishor
should carefully adhere to statutory requirements. An action for wrongful garnishment may be
based on failure to comply with the statutory requirements or stating untrue facts in the affidavit
filed with the application. Chandler v. Cashway Bldg. Matls, Inc., 584 S.W.2d 950, 952 (Tex.
Civ. App.El Paso 1979, no writ). The damages for wrongful garnishment are measured by the
loss sustained as a result of the garnishment. Absent an award for actual damages, the measure of
damages is the legal rate of interest on the money for the period of its wrongful detention.
Attorneys fees are not recoverable as actual damages in a wrongful garnishment suit.
4334346.1
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V.
SEQUESTRATION
Sequestration is an extraordinary remedy that allows for specified, disputed property to
be taken from the possession of one party to a suit and placed in the custody of the court until a
final judgment is made determining who is entitled to the property. Sequestration is most
commonly used by creditors who have title to property or a lien upon property, and is available
against real property, personal property, or fixtures. TEX. CIV. PRAC. & REM. CODE 62.001.
Sequestration is an ancillary remedy, and as such, a plaintiff may not obtain a writ of
sequestration before filing suit. Id. at 62.002. Likewise, because the procedure is ancillary to
another cause of action, an order to preserve property by means of sequestration or an order to
dissolve a writ of sequestration is interlocutory and not appealable. See Rexford v. Holliday, 807
S.W.2d 356, 357 (Tex. App.Houston [1st Dist.] 1991, no writ).
A.
Statutes and Rules.
Texas Rules of Civil Procedure govern writs of sequestration. A plaintiff may obtain a writ of
sequestration only when there is an underlying action for title or possession of the property; to
enforce or foreclose a security interest, lien, or mortgage; to remove a cloud to title; or for
partition. TEX. CIV. PRAC. & REM. CODE 62.001. The statute also requires that the plaintiff
demonstrate one or more of the following:
(1)
(2)
(3)
(4)
A reasonable conclusion may be drawn that there is an immediate danger

that the defendant or the party in possession of personal property will
conceal, dispose of, ill-treat, waste, or destroy the property, or remove it
from the county during the suit;
A reasonable conclusion may be drawn that there is an immediate danger
that the defendant or the party in possession of disputed real property will
use his possession to injure or ill-treat the property or to waste or convert
to his or her own use the timber, rents, fruits, or revenue of the property;
The plaintiff has been ejected from the property by force or violence; or
The suit is for real property and the plaintiff makes an oath that one or
more of the defendants is a nonresident of the state.
Id.
B.

1.
Obtaining Writ of Sequestration.
After meeting the statutory prerequisites, Texas Rules of Civil Procedure 696716 govern
the procedure to apply for a writ of sequestration. A plaintiff may file an application for writ of
sequestration upon commencement of the suit or at any time during its progress. TEX. R. CIV. P.
4334346.1
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696. The court must hold a hearing before issuing a writ, but the hearing can be ex parte, id. at
696, so it is often a good idea to file the application concurrently with the original petition.
The application must be made under oath and must state: (1) facts showing the nature of
the plaintiffs claim in the underlying action; (2) the amount in controversy in that action; and (3)
facts justifying issuance of the writ. TEX. CIV. PRAC. & REM. CODE 62.022. It should also
describe the property to be sequestered with such detail that is sufficient to identify it and
distinguish it from similar property, state the value of each article of property, and list the county
in which the property is to be found. TEX. R. CIV. P. 696; cf. Marrs v. South Texas Nat. Bank,
686 S.W.2d 675, 678 (Tex. App.San Antonio 1985, writ refd n.r.e.) (a creditor may allege the
value of the total inventory and need not allege the value of each item). The plaintiff must
support the application with an affidavit based on personal knowledge made by the plaintiff, the
plaintiffs agent, the plaintiffs attorney, or other persons having knowledge of relevant facts, and
should be made on personal knowledge. TEX. R. CIV. P. 696.
Once the plaintiff files his application, the court must hold a hearing and sign a written
order authorizing the writ if appropriate. The order must include specific findings of facts that
demonstrate the existence of statutory grounds justifying issuance of the writ. TEX. R. CIV. P.
696. It also must specify the amount of the sequestration bond required of the plaintiff as well as
the replevy bond required of the defendant. Id. at 696, 698, 70104. The bond must name two or
more good and sufficient sureties or, if the bond names a licensed insurance company as surety, a
single surety is sufficient. TEX. INS. CODE art. 7.19-1. The amount of the bond must adequately
compensate the defendant if the plaintiff fails to prosecute the suit to effect or if the plaintiff
becomes liable to the defendant for wrongful sequestration. TEX. R. CIV. P. 696, 698. After being
set, the amount may be modified by motion. Finally, if the property sought is in different
counties, the order may authorize the issuance of several writs at the same time or in succession.
Id. at 696.
The contents of the writ itself must be addressed To the Sheriff or any Constable within
the State of Texas, not naming a specific county. Id. at 699. It must describe property in the
same way as the application or affidavits, and direct the executing officer to take and keep the
property unless it is replevied. Id. The writ must also, on its face, prominently display in tenpoint type:
YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY
FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN
POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A
MOTION TO DISSOLVE THIS WRIT.
Id.
As Rule 699 implies, only a sheriff or constable may levy a writ of sequestration. A
private process server may not. Lawyers Civil Process, Inc. v. State ex rel. Vines, 690 S.W.2d
939, 944 (Tex. App.Dallas 1985, no writ). However, a private process server, or anyone else
authorized under Rule 21a, may serve a copy of the writ on the defendant or its attorney. TEX. R.
CIV. P. 700a; see also TEX. R. CIV. P. 21a.
4334346.1
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Though the court may amend clerical errors in its writ, Id. at 700, issuing the writ in a
name other than the defendants is not a clerical error, and renders the writ void. Watt. v. Parlin
& Orendorff, Co., 98 S.W. 428 (Tex. Civ. App.Austin, 1906, no writ). So to do differing
valuations of property between an application, amended petition, and final judgment. Shapiro v.
Sampson Bros. & Cooper, Inc., 334 S.W.2d 200, 20203 (Tex. Civ. App.Eastland 1960, no
writ). The only permissible amendments are those that do not change or add to the grounds for
sequestration stated in the affidavit. TEX. R. CIV. P. 700. To amend a clerical error in a writ, a
party must make a written application to the court in which the suit is filed and must notify the
opposing party. The court may order that the writ be amended on terms that the court authorizes
by an order entered in the minutes of the court. Id.
2.
Defendants Response to Writ of Sequestration.
If a plaintiff wrongfully secures a writ of sequestration, a defendant may by sworn

written motion seek to dissolve, vacate, or otherwise modify the writ of sequestration. TEX. CIV.
PRAC. & REM. CODE 62.041; TEX. R. CIV. P. 712a. Such a motion automatically stays all
proceedings under the writ until the issue is determined. TEX. CIV. PRAC. & REM. CODE 62.041.
Once a defendant files a motion against a writ of sequestration, unless the parties agree to an
extension, the court must hold a hearing and determine the issue within 10 days of the filing of a
motion against a writ of sequestration. TEX. CIV. PRAC. & REM. CODE 62.042.
At the hearing, the defendant has the burden to prove that the reasonable value of the
property exceeds the amount necessary to secure the debt, interest for one year, and probable
costs. TEX. R. CIV. P. 712a; see also Rexford v. Holliday, 807 S.W.2d 356, 358 (Tex. App.
Houston [1st Dist.] 1991, no writ). The court may determine the issue based on uncontroverted
affidavits, or on evidence submitted at the hearing. TEX. R. CIV. P. 712a. If, after the hearing, the
court dissolves the writ of sequestration, a cause of action for wrongful sequestration is a
compulsory counterclaim in the principal suit, and the party who sought dissolution can recover
damages and reasonable attorneys fees in association with the writ. TEX. CIV. PRAC. & REM.
CODE 62.044. As with the application itself, a courts decision on a motion to dissolve a writ is
interlocutory and not appealable. Monroe v. Gen. Motors Acceptance Corp., 561 S.W.2d 12, 13
(Tex. Civ. App.Waco 1978, no writ).
A defendant may also regain possession of sequestered property by replevy. At any time
before judgment, the defendant may replevy unclaimed and unsold sequestered property by
giving a bond made payable to the plaintiff and naming sufficient sureties, to be approved by the
officer who levied the writ TEX. R. CIV. P. 701. A replevy bond is subject to the same
requirements as the plaintiffs sequestration bond. See TEX. INS. CODE art. 7.19-1. The bond must
be for the amount stated in the courts order issuing the writ. TEX. R. CIV. P. 696. Though it need
not contain a description of the property, see Lindsey v. Williams, 228 S.W.2d 243, 247 (Tex.
Civ. App.Texarkana 1950, no writ), there are certain other conditions that are required. If the
property is real estate, the bond must require that the defendant will not injure the property and
that he or she will pay the value of the rents if required to do so by the courts judgment. TEX. R.
CIV. P. 703. If the bond is for personal property, it must guarantee that defendant will not move
the property out of the county, will not waste, ill-treat, injure, destroy, or dispose of the property,
and will pay the value of the property and its revenues, or the difference between the propertys
4334346.1
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value at the time of replevy and the time of judgment, plus any revenue, if required by the court
to do so. Id. at 702.
3.
Plaintiffs Replevy if Defendant Fails to Replevy.
Once the appropriate official levies the writ of sequestration, a defendant has ten days to
replevy the property before the plaintiff can do so. During that time the plaintiff may not seek to
obtain possession or use of the property from the court. After that ten day period, if the defendant
has not replevied the property, the plaintiff may post bond and replevy the property himself. TEX.
R. CIV. P. 708. The plaintiffs bond is subject to the same requirements and conditions as those
governing the defendants bond. Id. at 70203.
C.
Things to Consider.
1.
Wrongful Sequestration.
Either a dissolution of a writ of sequestration or a voluntary dismissal following

sequestration gives rise to a claim for wrongful sequestration. TEX. CIV. PRAC. & REM. CODE
62.044; Burnett Trailers, Inc. v. Polson, 387 S.W.2d 692, 69495 (Tex. Civ. App.San
Antonio 1965, writ refd n.r.e.) (voluntary dismissal entitles a debtor to return of property or a
judgment against obligors on a replevy bond). When a defendant prevails on a motion to dissolve
the writ, an action for wrongful sequestration is a compulsory counterclaim. Id. Furthermore, if a
court dissolves a writ of sequestration pertaining to consumer goods, the defendant can recover
reasonable attorneys fees plus statutory damages as outlined in section 62.045 of the Texas Civil
Practices and Remedies Code.
2.
Because sequestration is a carefully outlined statutory process with several procedural

safeguards, available only to a plaintiff who has a pre-existing property interest, it is unlikely that
even an ex parte writ of sequestration would violate the Fourteenth Amendment.
Nonetheless, the Supreme Court has held that the prehearing seizure of a defendants real
property by a tort claimant under a writ of attachment violated the defendants due process
rights. Connecticut v. Doehr, 501 U.S. 1 (1991). In Doehr, the Court held that a statute
authorizing the ex parte, prejudgment attachment of realty without bond and with no showing of
exigent circumstances was unconstitutional. Id. at 1618. The statutory grounds for sequestration
appear to satisfy Doehrs exigent circumstances requirement. TEX. CIV. PRAC. & REM. CODE
62.001. Moreover, there is no indication that the exigent circumstances requirement extends to
cases where a plaintiff has a pre-existing interest in the property, and the availability of a postseizure hearing and other safeguards probably ensure that Texass sequestration statute complies
with the due process requirements of the Fourteenth Amendment.
3.
Due to the ancillary nature of sequestration, possibility of replevy, and other

considerations, sequestration may not be an ideal remedy for all creditors. Another extraordinary
4334346.1
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remedy whereby a creditor can deprive an owner of use of property is receivership. See infra,
Part III. Receivership has its own requirements and considerations as explained above/below, but
places the property in the hands of a disinterested third party rather than the court, and can be
brought as an independent cause of action. Receivership is perhaps the most harsh of the
statutory remedies, and carries a substantial risk as well as procedural requirements. If your goal
is simply to compel or prevent certain use of property, without depriving the owner of
possession, injunctive relief may be appropriate. See infra, Part II.
VI.
QUO WARRANTO
A quo warranto proceeding is a unique extraordinary remedy provided by Chapter 66 of
the Texas Civil Practices and Remedies Code that is available only to the State. A private party,
however, may request that the State bring a quo warranto action in certain circumstances. Texas
Rules of Civil Procedure 77982 set forth the procedures for quo warranto actions.
Quo warranto actions are proceedings through which the state acts to protect itself and
the good of the public generally, through the duly chosen agents of the state. Staples v. State,
245 S.W. 639, 64041 (Tex. 1922). The purpose of quo warranto is to challenge the authority of
a person or corporation to exercise a public franchise or office. Alexander Oil Co. v. City of
Seguin, 825 S.W.2d 434, 43637 (Tex. 1991).
The Texas Civil Practices and Remedies Code sets forth seven circumstances in which a
quo warranto action is available:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
a person usurps, intrudes into, or unlawfully holds or executes a franchise

or an office, including an office in a corporation created by the authority
of this state;
a public officer does an act or allows an act that by law causes a forfeiture
of his office;
an association of persons acts as a corporation without being legally
incorporated;
a corporation does or omits an act that requires a surrender or causes a
forfeiture of its rights and privileges as a corporation;
a corporation exercises power not granted by law;
railroad company charges an extortionate rate for transportation of freight
or passengers; or
a railroad company unlawfully refuses to move over its lines the cars of
another railroad company.

In addition to the statutory circumstances, there are common-law claims in which quo
warranto is an available remedy. See e.g., Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434
(Tex. 1991) (challenge to citys annexation of property); Miller v. State, 866 S.W.2d 243 (Tex.
Crim. App. 1993) (challenge qualifications of an elected judge or appointed retired judge).
4334346.1
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VII.
CONCLUSION
Hopefully this paper has provided a useful overview of the traditional extraordinary
remedies that the Texas Legislature has codified in the Texas Civil Practices and Remedies
Code, and outlined the procedure for applying for those remedies. Depending on a partys
specific circumstances, injunctive relief, receivership, attachment, or sequestration may be useful
to secure property from which to satisfy any money judgment, or as the judgment itself. Each
remedy has specific requirements and considerations, but all can be useful depending the facts of
your case.
4334346.1
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Extraordinary Remedies - Litigation - Walker Mark PDF

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Presented:

33rd Annual Page Keeton Civil Litigation Conference

MARK C. WALKER, ESQ.

Grounds for Relief: Statutes and Rules.

TEX. CIV. PRAC. & REM. CODE 65.011.

Procedure and Requirements: Injunctions Generally.

In order to obtain temporary or permanent injunctive relief, the plaintiff must

What Constitutes Sufficient Wrongful Conduct?

What is Imminent Harm?

What is Irreparable Injury?

What Does No Adequate Remedy at Law Mean?

Doing Equity and Clean Hands.

Balancing the Equities.

An important, but seldom-encountered, injunction is one to maintain control over

Temporary Restraining Order.

A temporary restraining order is designed to provide emergency relief pending a hearing

Requirements of Application Sworn Pleading.

(No) Notice and Hearing.

Time Period 14 Days.

Requirements for the Order.

Appealability Not Usually.

The grant or denial of a temporary restraining order is ordinarily not appealable.

An application for a temporary restraining order must be accompanied by an application

An order granting a temporary injunction is subject to interlocutory appeal. TEX. CIV.

Accelerated Hearing/Joint Hearing on Merits.

A permanent injunction is subject to appellate review in the same manner as other

How to Enforce an Injunction?

Wrongful Injunction Suits.

Practical Considerations The External Force that Disrupts the Inertia of

Statutes and Rules.

Procedure and Requirements.

Unless otherwise prescribed by statute, in general, a party seeking the appointment of a

Suits Against the Receiver.

Statutes and Rules.

the defendant is not a resident of this state or is a foreign corporation or is

Procedure and Requirements.

Statutes and Rules.

An original attachment has been issued;

TEX. CIV. PRAC. & REM. CODE 63.001.

Procedure and Requirements.

Property Exempt from Garnishment.

Pre-judgment Writ of Garnishment.

Post-judgment Writ of Garnishment.

Typically, judgment in a garnishment action must await a final judgment in the

Defendants Response to Writ of Garnishment.

A garnishees answer is presumed true unless controverted by plaintiff. If uncontroverted,

Statutes and Rules.

A reasonable conclusion may be drawn that there is an immediate danger

Procedure and Requirements.

Obtaining Writ of Sequestration.

Defendants Response to Writ of Sequestration.

If a plaintiff wrongfully secures a writ of sequestration, a defendant may by sworn

Plaintiffs Replevy if Defendant Fails to Replevy.

Either a dissolution of a writ of sequestration or a voluntary dismissal following

Because sequestration is a carefully outlined statutory process with several procedural

Due to the ancillary nature of sequestration, possibility of replevy, and other

a person usurps, intrudes into, or unlawfully holds or executes a franchise

TEX. CIV. PRAC. & REM. CODE 66.001.

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