Blog 2: Writ of Execution without notice (is coming)
by Andrew R. Korn, Esq.
February 21, 2020
A civil money judgment is enforced by a writ of execution. See Rollins v. Am. Express Travel Related Servs. Co., 219 S.W.3d 1, 3 n.1 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“A ‘writ of execution’ is sought by a judgment creditor to enforce judgments.”); Mitchell v. Sizemore, 536 Fed. Appx. 443, 444 (5th Cir. 2013) (“Federal Rule of Civil Procedure 69(a)(1) provides that ‘[a] money judgment is enforced by a writ of execution, unless the court directs otherwise.’”).
A writ of execution directs a court’s enforcement officers to seize a judgment debtor’s property. See Amron Int’l Diving Supply, Inc. v. Hydrolinx Diving Commun., 2014 U.S. Dist. LEXIS 57035, at *10 (W.D. Tex. Apr. 24, 2014) (Ezra, J.):
In Texas, the procedure for obtaining a writ of execution is governed by Texas Rules of Civil Procedure 621 through 656. An application for an issuance of a writ of execution is first made to the Clerk of the Court. Tex. R. Civ. P. 622. Then, the Clerk issues the writ, directing any sheriff or constable within the State of Texas to carry out the command of the writ by levy on certain property of the judgment debtor that is not exempt by law within thirty, sixty, or ninety days, whichever number of days the judgment creditor designates. Id. The writ shall require the officer executing it to comply with its terms, shall describe the judgment to be enforced, and must be signed by the Clerk. Tex. R. Civ. P. 629.
A writ of execution requires officers to seize property, and the Writ puts the officers “under some pressure” to do so. Richardson v. Parker, 903 S.W.2d 801, 805 (Tex. App.—Dallas 1995, no pet.); Chambers v. Hornsby, 21 S.W.3d 446, 450 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Notice is not required when a judgment creditor requests the Clerk to issue a writ of execution. See Gonzales v. Daniel, 854 S.W.2d 253, 257 (Tex. App. – Corpus Christi, 1993, orig. proceeding) (“Generally, an execution is issued by the clerk upon application without notice to the debtor. … No notice of the application for the writ was required.”); Accord Coonts v. Potts, 316 F.3d 745751 n.4 (8th Cir. 2003):
[U]nder Missouri law, it is not a prerequisite to an execution that an express order of the court be made for its issuance because the right to execute a judgment, unless validly stayed, accrues immediately upon rendition of that judgment… In essence, the judgment acts as the judge’s ‘signature’ on the writ of execution, and the clerk’s purely ministerial act of issuing the writ merely effectuates the court’s judgment.
Cf. John Deere Plow Co. v Brown, 264 S.W. 675, 675 (Mo. 1924) (“An execution is not a part of the record proper until after it is returned.”).
If a judgment creditor files a request for a writ of execution through a court’s electronic filing system – and fails to take measures to keep that filing ex parte or under seal – then a judgment debtor who has appeared in the case may receive a case event e-mail stating that a writ or process has been requested. The Clerk of the United States District Court for the Northern District of Texas provides the following warning on its civil forms page:
Writ of Execution (Note: Writ is noticed to all ECF users upon issuance unless request is submitted ex parte)
A previous version read as follows (color appeared in original):
Writ of Execution (Note: Writ is noticed to all ECF users upon issuance)
While the advent of electronic filing has increased the likelihood that a judgment debtor will learn that a judgment creditor applied to the Clerk for a writ of execution, steps can be taken by the judgment creditor to prevent disclosure of the application. That means a judgment debtor may not learn that a writ of execution has issued until the deputies arrive at the judgment debtor’s door. But once a judgment is signed, the judgment debtor is on notice that such a day would come. See Ex parte Johnson, 654 S.W.2d 415, 418 n.1 (Tex. 1983) (“The judgment rendered against Johnson in February 1982 put him on notice that post-judgment collection proceedings would follow.”); Trinity Fin. Servs., Inc. v. Crockett, 2000 Tex. App. LEXIS 871, at *7 (Tex. App.—Dallas Feb. 8, 2000, no pet.) (“A final judgment puts the debtor on notice that satisfaction will be pursued and that post-judgment proceedings will follow.”).