Blog 6:

COVID-19 does not stop the rule of law.

Writs of Execution without notice are still coming.

by Andrew R. Korn, Esq.

April 16, 2020

“The law's behests must be obeyed, if civilized government is to endure.”
McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753 (1922)


Receivers and other officers of the Court must continue to enforce judgments during the COVID-19 pandemic.

While debtors may be sheltering in place, officers charged with enforcing writs of execution and obeying receivership orders should still be coming for debtor property.

On March 26, 2020, the State of Texas Office of Court Administration published Attorneys and Staff under Stay-at Home Orders, Travel Authorization, which provides in part:

 

Legal services are essential to the justice system, which is itself essential to the people. The need for legal services only increases in a disaster like the current COVID-19 pandemic… lawyers must …be permitted to practice law free from local stay-at-home orders and other restrictions on travel and business practices. Lawyers and staff may travel and engage in activities reasonably necessary to provide legal services, as is permitted for other essential services.

“As long as every effort is made to avoid risks to the public health” (See id.), Clerks, Sheriffs, Constables, and Turnover Receivers must continue to aid the courts by enforcing their judgments, orders and decrees. A review of the relevant authority below leads to the conclusion that the current pandemic does not excuse these officers of the court from their duties to the judiciary.


Enforcement of a final judgment is essential to judicial power. See Dallas Cnty. Constable Precinct 5 v. KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 610 (Tex. App.—Dallas 2007, no pet.) (Enforcing its judgments is a “core function” of the Court); McHugh v. Santa Monica Rent Control Bd., 777 P.2d 91, 106 (Cal. 1989) (“The power to make enforceable, binding judgments is an “essential” judicial power); Anway v. Grand Rapids R. Co., 179 N.W. 350, 354 (Mich. 1920) (The power “to enter a final judgment and enforce such judgment by process, [is] an essential element of the judicial power.”); Nat’l Bank of N. Am. v. IBEW, Local No. 3, 69 A.D.2d 679, 680-683 (N.Y. App. 1979) (“mechanisms of levy and garnishment… are concerned with the fundamental problem of enforcing money judgments. Such mechanisms are absolutely essential to insure the integrity of our courts’ judgments and without such procedures judicial redress would be frequently no more than an empty gesture.”); See also Basaldua v. Forest Woods Subdivision Prop. Owners Ass’n, 2012 Tex. App. LEXIS 5305, at *11 (Tex. App.—San Antonio July 5, 2012, pet denied) (trial court’s core functions also include enforcement of its orders).


Judgments are enforced by writs of execution. See Raymond K. Oukrop, DDS, P.C. v. Tatsch, 2014 Tex. App. LEXIS 7873, at *4 (Tex. App.—Austin Jul. 23, 2014, no pet.) (“A writ of execution is the principal process for the collection of money judgments.”); Rollins v. Am. Express Travel Related Servs. Co., 2006 Tex. App. LEXIS 4943, at *2, n.1 (Tex. App.—Houston [1st Dist.] 2006, no pet.). (“A ‘writ of execution’ is sought by a judgment creditor to enforce judgments.”); Andrews v. Roadway Express Inc., 473 F.3d 565, 568 (5th Cir. 2006) (“To enforce a judgment, judgment creditors must file a writ of execution…”); cf. Daniels v. Yelverton, 79 S.E.2d 311, 314 (N.C. 1953) (“The general rule is that the issuance of a writ of execution is an essential step in the process by which title may be acquired at an execution sale”). See generally Case v. Lazben Fin. Co., 99 Cal. App. 4th 172, 185 (2002) (“Among the judiciary branch’s “core” or “essential” functions is the power to resolve specific controversies between parties and declare the law.”).


Clerks have no discretion to refuse to issue writs of execution. See McClaflin v. Winfield, 279 S.W. 877, 878 (Tex. Civ. App. 1926, no writ) (The duty of the clerk to issue a writ of execution on application of the judgment creditor is “purely ministerial, and, where the application for the writ proceeds from a proper party, the clerk has no judicial discretion to exercise…”); Cre8Int’l, LLC v. Rice, 2015 Tex. App. LEXIS 5613, at *9-10 (Tex. App.—Dallas June 3, 2015, no pet.) (Clerk has “a ministerial duty to issue” a writ of execution)


Sheriffs and Constables have no discretion to refuse to obey writs of execution. See Lockridge v. Baldwin, 20 Tex. 303, 307 (1857) (“A writ of execution is the imbodied power of the Court, in the shape of a command to a ministerial officer, respecting the rights of the parties to the judgment; and imposing upon the officer certain duties and liabilities prescribed by law.”); BALLENTINE’S LAW DICTIONARY (3d ed. 1969) (“Writ of execution. A direct command of the court to the sheriff to carry out the mandate of the writ which normally is the enforcement of a judgment.”); Spradley v. State, 56 S.W. 114, 115 (Tex. Civ. App. 1900, no writ) (“it is the duty of the sheriff to enforce the judgment.”); Richardson v. Parker, 903 S.W.2d 801, 806 (Tex. App.—Dallas 1995, no pet.) (“The constables had a duty to levy on the writ of execution and could have been held liable if they failed or refused to levy if the levy could have taken place. The constables were required to levy on the writ of execution that was directed to them by legal authority…”).


Conclusion: Because issuing and following writs of execution, are essential functions of the Court, officers of the court charged with these functions may not outright refuse to perform them because of COVID-19 concerns. To the contrary, these officers must be proceeding in every possible way to safely enforce civil money judgments.