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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CONSTABLE JACK F. ABERCIA AND OLD REPUBLIC SURETY
COMPANY,

Appellants/Cross-Appellees,

v.

KINGVISION PAY-PER-VIEW, LTD.,

Appellee/Cross-Appellant.

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No. 08-05-00020-CV

Appeal from the

County Court at Law No. 3

of Dallas County, Texas

(TC# 03-03226-C)

O P I
N I O N

Appellants/Cross-Appellees Constable Jack F. Abercia and Old Republic
Surety Company (collectively, "Appellants") appeal the trial court's Final
Order Granting Motion to Recover Full Amount of Judgment in favor of
Appellee/Cross-Appellant Kingvision Pay-Per-View, Ltd. ("Kingvision"), in
which the trial court found Appellants jointly and severally liable for
damages for failure to levy on the writ of execution issued on a default
judgment pursuant to Section 34.065 of the Texas Civil Practice &
Remedies Code and also fined Constable Abercia for contempt pursuant to
Tex.Loc.Gov't Code Ann. § 86.024. Appellants bring six issues on appeal,
in which they challenge the trial court's jurisdiction and the legal and
factual sufficiency of the trial court's findings that they violated
Sections 34.064 and 34.065 of the Texas Civil Practice & Remedies Code
and Section 86.024 of the Local Government Code. Appellants also argue
Constable Abercia proved, as a matter of law, that he was entitled to good
faith immunity under Tex.Civ.Prac.& Rem.Code Ann. § 7.003 and to
judicial immunity under common law and that, as a matter of law, Old
Republic Surety Company ("Old Republic Surety") was not jointly and
severally responsible for the judgment beyond the penal sum of the bond.
By cross-appeal, Kingvision asserts that the trial court's September 8,
2004 order is the valid order, not its January 14, 2005 order, which is
the subject of this appeal. Kingvision also argues the trial court erred
by awarding it less than the full amount of the underlying judgment
debt.

For the reasons stated below, we affirm the trial court's judgment in
part, reverse in part, and remand the case to the trial court for further
proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On June 30, 2003, Kingvision obtained a default judgment against Mario
Antonio Baltazar, individually, and d/b/a Gloria's, d/b/a Gloria's Bar,
and d/b/a Gloria's Nite Club in the amount of $150,175. On August 20,
2003, the county clerk issued a ninety-day writ of execution for the
judgment. On or about August 27, Kingvision sent the writ to Constable
Abercia of Precinct 1 of Harris County, Texas, along with payment of the
$60 service fee and public records information showing Mr. Baltazar as
owner and operator of Gloria's Nite Club, located at 8810 Jensen Drive,
Houston, Texas. An accompanying letter instructed Constable Abercia to
"seize all cash and coin" and requested service of the writ "on a Friday
or Saturday, after 11:00 p.m., or at any time likely to maximize
recovery." On September 4, the Constable's office sent a letter to Mr.
Baltazar, notifying him to contact their office immediately to discuss
payment of the judgment and stating, "[i]f we do not hear from you
immediately, we will proceed to collect this judgment by SEIZING any
non-exempt property found belonging to you according to law."

On September 25, Deputy Kathryn Inman went to Gloria's and attempted to
make a personal demand on the debtor, but found the establishment was
closed, and instead left a business card on the door. On October 1, Andrew
Korn, Kingvision's attorney, sent an inquiry letter requesting the
Constable's office execute the writ in the evening hours and to make more
than one attempt to satisfy the judgment. On October 3, Mr. Korn sent a
fax transmittal to Sergeant Albert Lui, requesting that the deputies levy
on the debtor's cash and coin, but instructed them that until otherwise
requested, not to levy on any other property in connection with the writ
of execution. At 10 p.m. on the same date, Deputy Inman and three other
deputies went to Gloria's and seized the money found in the cash register
of the business, which totaled $112.50. By fax transmittals on October 7
and November 9, Mr. Korn informed Sergeant Lui that U.S. Marshals seized
$648.75 in cash and coin at Gloria's on October 4 and over $500 in cash,
coin, and cigarettes on November 8. In the November 9 correspondence, Mr.
Korn requested that the Constable's office continue to execute the writ by
returning to Gloria's to seize cash and coin and/or executing a "Keeper's
Levy." On November 10, Mr. Korn sent another fax transmittal, providing
the Constable's office with public record information about real property
and vehicles owned by Mr. Baltazar. Mr. Korn suggested the Constable go to
the residence and seize non-exempt property such as cash or firearms in
excess of two and to consider levying any non-exempt property at Gloria's
such as stereo speakers, televisions, and other electronic devices, if the
storage and sales fee would not exceed the likely sale price of the items.
On November 19, 2003, the Constable's office issued a check for $107.01 to
Kingvision and returned the writ to the court as expired. The file-stamped
copy of the writ indicates the court received the returned writ on
December 1.

On March 18, 2004, Kingvision filed its Motion to Recover Full Amount
of Judgment, requesting the court command Constable Abercia and his
surety, Old Republic Surety, to pay Kingvision the full amount of the
judgment debt in the case, plus interest and costs, pursuant to
Tex.Civ.Prac.& Rem.Code Ann. §§ 34.064, 34.065. Over several days, the
trial court conducted a hearing on the motion. On September 8, 2004, the
trial court entered an order granting Kingvision's motion, finding
Appellants jointly and severally liable for the full amount of the
judgment debt, plus interest and costs, and imposed a fine of $100 on
Constable Abercia for contempt. Subsequently, Constable Abercia, joined by
Old Republic Surety, filed a motion to modify or reform the judgment or
alternatively to grant a new trial. On December 22, 2004, the trial court
vacated the September 8 order. On January 14, 2005, the trial court signed
the Final Order Granting Motion to Recover Full Amount of Judgment. The
final order held Appellants jointly and severally liable to Kingvision for
$109,690.98, plus interest and costs, and imposed a fine of $100 on
Constable Abercia for contempt. On February 11, 2005, Old Republic Surety
filed a motion to reform the final order, arguing that it was only liable
for the amount of the penal sum of its bond, which was in the amount of
$1,500. After a hearing, the trial court denied Old Republic Surety's
motion. This appeal and cross-appeal now follow.

DISCUSSION

WRIT OF EXECUTION

Execution is governed by rule and statute. Kuo Kung Ko v. Pin Ya
Chin, 934 S.W.2d 839, 841 (Tex.App.--Houston [14th Dist.] 1996, no
writ); Hickey v. Couchman, 797 S.W.2d 103, 107 (Tex.App.--Corpus
Christi 1990, writ denied). Rule 637 imposes a duty on the sheriff to
"proceed without delay to levy . . . upon the property of the defendant
found within his county not exempt from execution . . . ."
(1)

See Tex.R.Civ.P. 637. Section 34.065 of the Texas Civil
Practice and Remedies Code provides sanctions if the sheriff fails or
refuses to execute upon the debtor's non-exempt property. See
Tex.Civ.Prac.& Rem.Code Ann. § 34.065 (Vernon 1997). When a judgment
creditor asks that the constable be liable for non-execution, he or she
must plead a prima facie case alleging: (1) an execution based on a valid
judgment issued and delivered to the sheriff; (2) property of the debtor
subject to the execution in the county where the sheriff had the writ; (3)
failure of the sheriff to seize the non-exempt property; and (4) an
unsatisfied judgment. Ko, 934 S.W.2d at 841; Hickey, 797
S.W.2d at 107-108, citing Henry S. Miller Co. v. Evans, 452
S.W.2d 426 (Tex. 1970). Once a prima facie case has been pled, the burden
shifts to the sheriff to disprove an element of the plaintiff's case or
prove one of several defenses of mitigation, such as proof that the fair
market value of the property was less than the underlying judgment.
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at 108. In
addition, under Section 7.003 of the Texas Civil Practice and Remedies
Code an officer is not liable for damages if the officer executes the writ
in good faith and uses reasonable diligence in performing his official
duties. See Tex.Civ.Prac.& Rem.Code Ann. § 7.003 (Vernon
2002).

NOTICE

In Issue One, Appellants argue the trial court lacked jurisdiction over
the action because Kingvision failed to give notice of its suit against a
county official in his official capacity as mandated by Tex.Loc.Gov't Code
Ann. § 89.0041 (Vernon Supp. 2006). Appellants assert that since notice to
governmental entities and officials sued in their official capacities is a
jurisdictional requisite under Tex.Gov't Code Ann. § 311.034, the trial
court lacked subject matter jurisdiction over the proceeding and this
Court must vacate the court's judgment and dismiss the action. We reject
Appellants' argument for two reasons.

First, Section 89.0041 is not applicable because this action was a
statutory proceeding brought pursuant to Tex.Civ.Prac.& Rem.Code Ann.
§§ 34.064 and 34.065, not a

"suit" against a governmental entity. See Tex.Civ.Prac. &
Rem.Code Ann. § 34.065; see also Hickey, 797 S.W.2d at 107 n.1.
The motion was not a new suit, but rather a post-judgment proceeding in
the initial suit by which the judgment was gained and thus, the trial
court necessarily takes its jurisdiction from the underlying suit. See
Evans v. Henry S. Miller Co., 413 S.W.2d 954, 955-56
(Tex.Civ.App.--Austin 1967, no writ); see, e.g., McLane v.
Kirby & Smith, 54 Tex.Civ.App. 113, 117, 116 S.W. 118, 119
(1909)("[j]urisdiction over attachment proceedings is part of the general
jurisdiction conferred on the courts in which they are cognizable").

Second, effective September 1, 2005, the Legislature made "[s]tatutory
prerequisites to a suit, including the provision of notice . . .
jurisdictional requirements in all suits against a governmental entity."
Tex.Gov't Code Ann. § 311.034; Act of May 25, 2005, 79th Leg., R.S., ch.
1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (establishing effective date);
see Tex.Gov't Code Ann. § 311.022 (Vernon 2005)("A statute is
presumed to be prospective in its operation unless expressly made
retrospective."). Kingvision filed its motion to recover full amount of
judgment on March 18, 2004 and the court's final order granting that
motion was signed January 14, 2005. Prior to the change in the law,
failure to comply with analogous notice provisions in the Code did not
deprive a court of subject matter jurisdiction. See Univ. of Tex. Sw.
Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 364-65 (Tex.
2004)(discussing notice requirements of Tex.Civ.Prac.& Rem.Code Ann.§
101.101). Likewise, failure to give notice of a claim pursuant to Section
89.0041 would not have deprived the trial court of jurisdiction over this
action. See id. at 362. Thus, even assuming that Section 89.0041
applied to this action, we could nevertheless find that the change in the
law would not apply to this case because of its effective date. Issue One
is overruled.

SUFFICIENCY POINTS

In Issues Two through Five, Appellants challenge the legal and factual
sufficiency to support the trial court's findings of fact and conclusions
of law. By their Issues Two through Five, Appellants challenge the
following findings of fact and conclusions of law:

. . .

FF5. Mario Antonio Baltazar, Defendant and judgment debtor
("Defendant") had property subject to execution (i.e. ownership
of non-exempt assets) in Constable Abercia's Precinct when Constable
Abercia had the Writ.

FF6. Constable Abercia failed to seize Defendant's non-exempt
property.

FF7. Constable Abercia failed to levy on property subject to
execution.

FF8. Constable Abercia refused to seize Defendant's non-exempt
property.

FF9. Constable Abercia refused to levy on property subject to
execution.

FF10. Levy could have taken place.

FF11. Constable Abercia was aware of Defendant's non-exempt assets.
Constable Abercia was able to seize these assets. However, Constable
Abercia did not do so.

. . .

FF13. The full amount of the debt is $152,675.00.

FF14. Plaintiff was injured by Constable Abercia's failure to execute
in the amount of $109,690.98. Plaintiff suffered damages in the amount of
$109,690.98 as the proximate result of Constable Abercia's failure to
levy.

. . .

FF16. Constable Abercia and Old [Republic] Surety failed to identify
any property of Defendant that was exempt from execution.

. . .

CL3. Constable Abercia violated Tex.R.Civ.P. 621.

CL4. Constable Abercia violated Tex.R.Civ.P. 636 & 637.

CL5. Constable Abercia violated Tex.R.Civ.P. 651 & 654.

CL6. Constable Abercia neglected and refused to return a writ of
execution as required by law and made a false return on a writ of
execution. Therefore, Constable Abercia and Old [Republic] Surety are
liable to Plaintiff for the full amount of the debt, plus interest and
costs pursuant [to] Tex.Civ.Prac. & Rem. Code § 34.064.

CL7. Constable Abercia failed and refused to levy on property subject
to execution and the levy or sale could have taken place. Therefore,
Constable Abercia and Old [Republic] Surety are liable to Plaintiff for
the full amount of the debt, plus interest and costs pursuant to
Tex.Civ.Prac.& Rem.Code § 34.065.

CL8. Constable Abercia both failed and refused to execute and return
according to law a process, warrant or precept lawfully directed and
delivered to him. Plaintiff was the person injured by Constable Abercia's
failure and refusal. [Citation omitted]

CL9. Constable Abercia failed to use due diligence regarding the Writ.
Constable Abercia was neither careful nor persistent in effort.

CL10. Constable Abercia did not use reasonable diligence in performing
his official duties.

CL11. Constable Abercia did not execute the Writ in good faith.

CL12. Constable Abercia willfully disobeyed the command of the Writ.
This disobedience was not justified or excused.

CL 13. Plaintiff's claims are not barred, in whole or in part, by any
and all of the defenses plead by Constable Abercia and Old [Republic]
Surety (e.g., sovereign immunity, official immunity and judicial immunity,
etc.).

Standards of Review

Findings of fact in a bench trial have the same force and dignity as a
jury's verdict upon questions and are reviewed for legal and factual
sufficiency of the evidence by the same standards. Ortiz v.
Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991). We review the trial court's
legal conclusions de novo. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

In our review we consider the evidence in a light that tends to support
the jury's finding and disregard all evidence and inferences to the
contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d
269, 274 (Tex. 2002). We will sustain a no-evidence challenge only when:
(1) the record discloses the complete absence of a vital fact; (2) the
court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to
prove a vital fact is no more than a mere scintilla; or (4) the evidence
establishes conclusively the opposite of the vital fact. Marathon
Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The evidence is no
more than a scintilla "[w]hen the evidence offered to prove a vital fact
is so weak as to do no more than create a mere surmise or suspicion of its
existence . . . ." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983). More than a scintilla exists when the evidence "rises to a
level that would enable reasonable and fair-minded people to differ in
their conclusions." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25
(Tex. 1994).

When appealing the legal sufficiency of the evidence supporting an
adverse finding on which the party had the burden of proof, the appellant
must show that the evidence establishes, as a matter of law, all vital
facts in support of the issue. Dow Chemical Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001); Anderson, 806 S.W.2d at 794. In
reviewing a "matter of law" challenge, we must first examine the record
for evidence that supports the finding, then we will examine the entire
record to determine if the contrary proposition is established as a matter
of law. Francis, 46 S.W.3d at 241. The point of error should be
sustained only if the contrary proposition is conclusively established.
Id.

When reviewing the factual sufficiency of the evidence supporting an
adverse finding upon which the party did not have the burden of proof, the
appellant must show that the evidence is insufficient to support the
finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In
our review, we may not substitute our own judgment for that of the trier
of fact nor pass upon the credibility of the witnesses. See Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); see
also GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16
(Tex.App.-- Houston [14th Dist.] 2001, pet. denied)(trier of fact is the
sole judge of the credibility of the witnesses and the weight to be given
to their testimony). After considering and weighing all the evidence, we
set aside the verdict only if it is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. Ellis, 971
S.W.2d at 406-07; Pool v. Ford Motor Co., 715 S.W.2d 629, 635
(Tex. 1986). When appealing the factual sufficiency of the evidence
supporting an adverse finding on which the party had the burden of proof,
the appellant must show that the adverse finding is against great weight
and preponderance of the evidence. Southwestern Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 620-21 (Tex. 2004); Francis, 46
S.W.3d at 242.

Evidence

Deputy Kathryn Inman testified that she received the writ on September
4 and the same day sent out a "demand letter," to which she received no
reply. On September 25 at 4:15 p.m., Deputy Inman went to Gloria's to make
a personal demand and to try to work something out or get payment from Mr.
Baltazar. However, the business was closed, so she left a business card on
the door. According to Deputy Inman, she had a conversation with Mr. Korn,
in which they discussed the fact that he wanted to seize cash and coin
only. It was Deputy Inman's understanding that Mr. Korn in all his letters
from August 27 to October 3, had instructed them not to seize anything
other than cash and coin. Deputy Inman also recalled discussing the
problem with execution being scheduled in the evening and told Mr. Korn he
would have to speak with Sergeant Lui because it would involve overtime.
She explained that most executions and levies are done about noon--during
the daytime so that the defendant has the opportunity to pay while the
banks are open.

On October 3, Deputy Inman and three other deputies went to Gloria's at
10 p.m. At Gloria's, one deputy watched the front door while Deputy Inman
and Deputy Eddy Valderrama, serving as a translator, went behind the bar.
The fourth deputy stood watch over Deputies Inman and Valderrama because
the nightclub is in a very bad part of town. Deputy Inman described the
establishment as a "low income bar" that only sells beer. Property in the
bar consisted of old tables, chairs, bar stools, some pool tables, a
cigarette machine, a jukebox, and a bandstand. The furnishings looked very
cheap, and according to Deputy Inman, nothing looked like it would bring
$154,000 at auction. Deputy Inman also noted that the Harris County
Appraisal District valued the entire establishment at $17,000, which she
said would not have made a dent in the judgment since they would only get
ten cents on the dollar at auction. That night the deputies stayed at
Gloria's for an hour and seized $112 from the cash register and found no
other money. Deputy Valderrama also called Mr. Baltazar, who stated the
only money that was in the bar was what was in the register.

According to Deputy Inman, the writ of execution is a peaceful process
and it is against the law for the deputies to break the locks on the pool
table or vending machine. The only way they could take the cash out of the
machines was to seize them intact after first determining that they
belonged to the debtor. Deputy Inman stated that Mr. Korn never mentioned
the vending machines or pool tables. She also testified that they do not
usually take cigarettes. With regard to Mr. Korn's November 10 letter, in
which he mentioned seizing property from the defendant's home, Deputy
Inman stated she never received a copy of that letter because it was
addressed to Jim Savage with the County Attorney's office. Even if she had
been aware of the letter, nothing in it indicated to her that she could
seize that property. Deputy Inman's research showed that the address
mentioned was a homestead and of the two vehicles mentioned, Mr. Baltazar
had sold one of them.
(2) She was also not furnished any information about possible
non-exempt firearms. The November 10 letter also mentioned seizing
property in Gloria's that would not exceed the storage costs, but Deputy
Inman did not recall seeing any property in Gloria's that would not exceed
the storage costs. Furthermore, Deputy Inman testified that even if she
had received the letter, the writ would have expired in ten days; thus, it
would have been too late to seize the property and hold the property for
ten days before a constable sale. On cross-examination, Deputy Inman
explained that on a ninety-day writ, unless they had worked out a plan
with the defendant to make multiple payments, they only levy one time
before returning the writ to the court. In this case, Deputy Inman held
the writ and waited for instructions to go out again, but Sergeant Lui
never told her to go back again. Deputy Inman maintained that by the time
Mr. Korn was requesting personal property on November 10, the deputies
would not have had time to go back to seize the property before the writ
expired.

Mr. Korn testified about his correspondence and requests to the
Constable's office. Mr. Korn explained that on October 1, he sent a letter
to the Constable explaining his dissatisfaction with their lack of action
on the writ of execution. In response, Mr. Korn was instructed to contact
Sergeant Lui. In a follow-up message, Mr. Korn implored Sergeant Lui to
stay on schedule for execution of the writ on October 3 because he knew
the U.S. Marshals would be returning on October 4 to execute on a federal
judgment. In a subsequent conversation, Sergeant Lui told Mr. Korn that he
was not going to take any real property if he went out on October 3
because he did not have his bondsmen or mover ready, but if instructed to
take cash and coin, he would still go out. Per Sergeant Lui's instruction,
Mr. Korn sent the October 3 fax, requesting the levy on the debtor's cash
and coin only. After Sergeant Lui told him that they seized only $112.50,
Mr. Korn sent the sergeant receipts from the U.S. Marshals' seizures,
showing there was money available every night, and on November 9, he asked
the Constable's office to exercise diligence in the service of the writ
by, for example, returning to Gloria's to seize additional cash and coin
or employing a keeper's levy.

By that point, Sergeant Lui had referred the matter to the County
Attorney's office. Mr. Korn had a conversation with Mr. James Savage, who
told him that it was their position that they did not have to go out to
that establishment unless they were reasonably likely to satisfy the
judgment. Mr. Savage told him to identify some property and in response,
Mr. Korn sent the November 10 fax, in which he suggested they go to the
debtor's home to see what property he had that was non-exempt and that
they take items such as televisions, speakers, and other electronic
devices from Gloria's. Despite Mr. Korn's November 10 letter, the deputies
never make any other attempts to execute on the judgment and instead,
issued a check for $107 on November 12 and never went back.

On cross-examination, Mr. Korn admitted that he never identified
$154,000 worth of assets at Gloria's. Mr. Korn did not know who owned the
jukebox or the pool tables and he did not specifically tell the deputies
to take cigarettes. However, Mr. Korn maintained that he asked the
Constable to take personal property like the vehicles and electronic
equipment. Mr. Korn also maintained that he had no duty to determine
whether personal property, like the car, was exempt or non-exempt, to give
any direction to the Constable, or designate property for the Constable to
levy on.

Sergeant Albert Lui testified that he was the supervisor in charge of
the writ division for Constable Abercia's office. He explained that
executions are normally done during the day because the defendants can go
to the bank and pay the debt while the banks are open. Sergeant Lui stated
that a lot of times they will make a demand on the debt and then will work
something out and the defendant will go to the bank and get a check.
However, in the past they would go out to a bar at night and seize the
assets. According to Sergeant Lui, he told Mr. Korn that they were going
to do the whole levy, but Mr. Korn elected not to do so. Prior to the
November 10 letter, Mr. Korn never requested that they seize any property
other than cash and coin. Sergeant Lui explained that the deputies went to
Gloria's only one time because if there is a lot of merchandise or
inventory, they will seize it all at one time, but if no other assets are
available, then they only go to the location one time. If they find some
assets or the plaintiff finds some through post-judgment discovery, then
they will go to a second location if it is available. As far as Sergeant
Lui knew, there were no other assets to seize after they went to Gloria's
one time. Mr. Korn had suggested that he conduct a keeper's levy, where he
would put a deputy at the door and collect money from patrons as they came
into the bar, but Sergeant Lui was not familiar with that and so he talked
with Mr. Savage who also was unfamiliar with that method. Sergeant Lui
recalled Mr. Korn telling them to go out there just to seize as much cash
and coin as they could and that he did not want to put them out of
business.

On cross-examination, Sergeant Lui testified that Deputy Inman's return
of service in this case was accurate even though it stated nothing about
looking for assets during the October 3 execution of the levy. As for why
they did not go to the debtor's house to made a demand on him or look for
assets there, Sergeant Lui stated that they did not have Mr. Korn's
November 10 correspondence, which was addressed to Jim Savage. Indeed, at
trial was the first time Sergeant Lui saw the November 10 letter, although
he stated Mr. Savage might have given it to Deputy Inman.

Deputy U.S. Marshal George Hephner testified that he is assigned to the
civil section in Houston and has served writs of execution on at least 75
establishments in the past year. Deputy Hephner had executed writs on
Gloria's several times and had seized money at that location. On some of
the occasions, other law enforcement officers, specifically, TABC and
Houston police, come with them so that they can continue to levy if
illegal activity is occurring. Deputy Hephner explained that Houston
police wanted to go to Gloria's with them because they felt it was full of
drugs and TABC agents wanted to go along to check for violations of
license requirements. The first U.S. Marshal team that executed a writ at
Gloria's in April 2003 seized almost $1,900 from the cash registers,
change purses, coins in the pool table, and the owner's person. At Mr.
Korn's request, they went a second time on May 31 and recovered $421.
Between April 2003 to November 22, 2003, the U.S. Marshals went out to
Gloria's seven times. They recovered only $421 on May 31 because the
employees were hiding money from them. On the night of November 22, they
employed a "double back," hitting the location twice in one night. While
at Gloria's they seized money from a jukebox and a pool table. Deputy
Hephner explained they first request that someone unlock the jukebox, and
if it is not unlocked, they will pry it open. In their first levy on
Gloria's, they broke the locks on the pool tables and gaming machines
after employees refused to tell them who owned the property. The marshals
then took the money and left their card with instructions for the owner of
that property to contact them. They have also taken cigarettes from
Gloria's. Deputy Hephner testified that he never identified assets at
Gloria's that would have been worth $154,000.

Captain Cecil B. Lacey, division supervisor over civil and writs for
Constable Precinct 4 of Harris County, testified that his precinct is one
of the largest precincts and has the heaviest loads in the county. The
civil process department conducts most of the levies during its normal
business hours, 8 to 5 Monday through Friday, in order to avoid incurring
extra expenses and storage costs. In Captain Lacey's experience, multiple
trips to a location to do a levy occur under circumstances where there was
so much property that it could not be seized in one day. According to
Captain Lacey, if he was in a situation in which there was a $150,000
judgment, but when he went out to levy he only recovered $112, there would
have to be extenuating circumstances to warrant returning a second time.
In such a case, he would ask the plaintiff or plaintiff's counsel for
direction or assistance because otherwise the execution would not be
worthwhile. Captain Lacey would not break the locks on a vending machine
during a levy because that would be a criminal violation. He would also
not go beyond the command of the writ. Captain Lacey stated that it was
not worthwhile to seize cigarettes because of the restrictions on buyers
and the extra storage costs and inventory. Captain Lacey believed that
Constable Abercia's office could have been very well justified in not
wanting to go to Gloria's again because there was not anything there. In
his experience, only a small percentage of judgments are satisfied,
particularly executions on personal property.

Lieutenant Frank Bromley, with the writ section of the Dallas County
Constable's Office, Precinct 1, testified that if he were in a situation
where there was a judgment for $150,000 on a writ of execution and he was
asked to go to a bar or tavern at night and he only recovered $112 and had
no reasonable expectation that more would be recovered, he would not make
successive trips to the location. Lieutenant Bromley explained that in his
office, they send a demand letter to the defendant and after no response,
they go out and try to collect on the judgment. They work the executions
in the order they receive them. They have one or two writ officers in
their office and a backlog of about a hundred writs. If they collected
only $112, they would return the writ showing that amount as collected and
return it nolo bono unless there was a turn over order or post-judgment
discovery that they could go out and levy on. Lieutenant Bromley has never
broken the locks on a vending machine on a writ of execution because it
could be leased property. If he were provided information from plaintiff's
attorney about the defendant's vehicles, his procedure would be to check
the registration information on the vehicles and then talk to the
defendant to determine whether that property was exempt.

Violation of Section 34.065

In Issue Two, Appellants challenge the trial court's finding of a
violation of Section 34.065, arguing (1) there is no evidence or factually
insufficient evidence to support a finding that Constable Abercia failed
or refused to levy under the writ; (2) no evidence or factually
insufficient evidence of any property owned by the debtor upon which
Constable Abercia could have levied; and (3) the damage award was
arbitrary and not supported by legally or factually insufficient evidence,
particularly since Kingvision was not injured by the alleged failure to
execute.

With regard to sub-point one, Appellants argue that Kingvision failed
to establish a prima facie case under Section 34.065, pointing to Sergeant
Lui's testimony that the deputies were specifically instructed to seize
only cash and coin and they intended to levy once if no other assets were
available. Appellants also point out that Deputy Inman did not receive the
November 10 letter that gave information about Mr. Baltazar's vehicles and
requesting that they execute on the non-exempt property at Gloria's.
Deputy Inman also believed that regardless, it would have been too late to
levy on that identified property because the writ was set to expire on
November 17, 2003. The evidence in the record, however, shows that
Kingvision initially requested that the deputies seize only cash and coin,
but later during the life of the writ, requested on November 9 that the
deputies return to seize additional cash and coin and on November 10 that
they levy on non-exempt property at Gloria's. Despite the deputies duty to
levy on and seize property subject to execution, which had been identified
by Kingvision, Appellants refused to do so. Indeed, Deputy Inman's
testimony about the Constable's office procedure of levying only one time
before returning a ninety-day writ unless they arranged a multiple payment
plan with the defendant, squarely contradicts the command of a writ of
execution, which clearly imposes a duty on the constable to levy anew
where the execution does not satisfy the judgment. See
Tex.R.Civ.P. 637, 651. In sub-point two, Appellants contend that
Kingvision failed to prove the existence of non-exempt executable
property, thus there was no evidence of property which was executable that
was not executed on by Constable Abercia. As mentioned above, Kingvision
did identify property of the defendant subject to execution during the
life of the writ, therefore, this contention is without merit. We conclude
there was legally and factually sufficient evidence to support the trial
court's findings Nos. 5-11.

In their third sub-point, Appellants argue that the trial court's
damage award is arbitrary and not supported by legally or factually
sufficient evidence, specifically challenging the trial court's finding
No. 14 that Kingvision was injured by Constable Abercia's failure to
execute in the amount of $109,690.98 and that Kingvision suffered damages
in that amount as the proximate result of the failure to levy. Under
Section 34.065, if an officer fails or refused to levy on property subject
to execution and the levy could have taken place, the officer and his
sureties are liable for the full amount of the debt, plus interest and
costs. See Tex.Civ.Prac.& Rem.Code Ann. § 34.065. However, if
the officer can establish, for example, that the plaintiff was not injured
by the failure to execute, that the defendant was insolvent, or that the
defendant's assets were exempt, there is generally no recovery.
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at 107-08 (the
most important defense the Court has read into 34.065 is that the
plaintiff was not injured by the failure to execute). If there was
non-exempt property that could have been seized, then the officer is
liable only to the extent of the value of the non-exempt property.
Ko, 934 S.W.2d at 841; Hickey, 797 S.W.2d at 108. To
establish this mitigation defense, the officer must show that the market
value of the defendant's non-exempt property is less than the amount of
the underlying judgment. Hickey, 797 S.W.2d at 108. In this case,
Appellants failed to plead or prove a defense of mitigation or to identify
property that had been designated as non-exempt by Mr. Baltazar.
See Tex.Civ.Prac. & Rem.Code Ann. § 34.065; Ko, 934
S.W.2d at 841. Because Appellants failed to meet their burden in
establishing a mitigation defense, the trial court did not err in
concluding that Constable Abercia and Old Republic Surety were liable for
Constable Abercia's failure to execute the writ. (Conclusion of Law No.
7). Further, there was legally and factually sufficient evidence to
support findings No. 14 and No. 16. Issue Two is overruled.

Violation of Section 34.064

In Issue Three, Appellants argue the trial court erred in holding
Constable Abercia liable under Tex.Civ.Prac.& Rem.Code Ann. § 34.064
because the issue was never plead or tried and because neither legally nor
factually sufficient evidence support the trial court's finding or
conclusion. Conclusion No. 6 states, "Constable Abercia neglected and
refused to return a writ of execution as required by law and made a false
return on a writ of execution. Therefore, Constable Abercia and Old
[Republic] Surety are liable to Plaintiff for the full amount of the debt,
plus interest and costs pursuant [to] Tex.Civ.Prac. & Rem. Code Ann. §
34.064." Despite issuing this challenged conclusion of law, the trial
court did not find Appellants liable under Section 34.064. Rather, the
trial court ordered that Kingvision recover against Constable Abercia and
Old Republic Surety, "pursuant to Tex. Civ. Prac. and Rem. Code 34.065
(Failure to Levy or Sell)." Because we conclude the evidence was legally
and factually sufficient to support the trial court's finding of liability
under Section 34.065, we overrule Issue Three.

Contempt Finding under Section 86.024

In Issue Four, Appellants argue that because Constable Abercia's
deputies did not fail or refuse to execute Kingvision's writ, the trial
court's finding of contempt under Section 86.024 of the Texas Local
Government Code (Conclusions of Law No. 8 and No. 12) was in error.
Section 86.024 provides:

If a constable fails or refuses to execute and return according to law
a process, warrant, or precept that is lawfully directed and delivered to
the constable, the constable shall be fined for contempt before the court
that issued the process, warrant, or precept on the motion of the person
injured by the failure or refusal. Tex.Loc.Gov't Code Ann. § 86.024
(Vernon 1999).

Relying on their arguments as set forth in Issues Two and Three,
Appellants assert that the trial court's contempt order is not supported
by evidence because Constable Abercia did not fail or refuse to execute
Kingvision's writ. As discussed above in our disposition of Issue Two,
there was legally and factually sufficient evidence to support the trial
court's findings related to Constable Abercia's failure to levy upon
defendant's property subject to execution. Therefore, there was evidence
to support the trial court's contempt order under Section 86.024. Issue
Four is overruled.

Good Faith Immunity and Judicial Immunity

In Issue Five, Appellants contend Constable Abercia proved, as a matter
of law, that he was entitled to good faith immunity under Tex.Civ.Prac.
& Rem.Code Ann. § 7.003 and to judicial immunity under common law.

An officer is generally not liable for damages resulting from the
execution of a writ if the officer in good faith executes the writ as
provided by law and uses reasonable diligence in performing his official
duties.
(3) See Tex.Civ.Prac. & Rem.Code Ann. § 7.003;
Chambers v. Hornsby, 21 S.W.3d 446, 448-49 (Tex.App.--Houston
[14th Dist.] 2000, no pet.). An officer acts in good faith if a reasonably
prudent officer, under the same or similar circumstances, would have acted
in the same manner. Id. at 449; Richardson v. Parker,
903 S.W.2d 801, 804 (Tex.App.--Dallas 1995, no writ). Reasonable diligence
has been reviewed on a case-by-case basis. See, e.g.,
Ko, 934 S.W.2d at 842 (finding deputy exercised reasonable
diligence where deputy attempted to execute writ a day after receiving it,
but did not execute based on judgment debtor's assurances that probate
matter was still pending, and later was unable to execute after judgment
debtor filed a UCC statement claiming a security interest in the
property); Hickey, 797 S.W.2d at 106-107 (finding no due
diligence where officer did not execute writ because debtor told officer
he had filed bankruptcy, but officer did not stop the sale of debtor's
property when the officer later learned that debtor had not filed
bankruptcy).

Further, an officer is conferred with judicial immunity when executing
writs, subject to liability under Section 34.061. See Merritt v.
Harris County, 775 S.W.2d 17, 23 (Tex.App.--Houston [14th Dist.]
1989, writ denied). Under derived judicial immunity, an officer of a court
is entitled to the same immunity, that is, absolute immunity, as a judge
acting in his or her official judicial capacity, when the officer acts as
an "arm of the court" and when the court officer's conduct is like that of
the delegating or appointing judge. Dallas County v. Halsey, 87
S.W.3d 552, 554 (Tex. 2002); Delcourt v. Silverman, 919 S.W.2d
777, 781-83 (Tex.App.--Houston [14th Dist.] 1996, writ denied), cert
denied, 520 U.S. 1213, 117 S.Ct. 1698, 137 L.Ed.2d 824 (1997).
Judicial immunity for officers executing writs, however, is qualified by
Section 7.003, which requires good faith and reasonable diligence in the
execution. See Merritt, 775 S.W.2d at 23; Freeman v. Wirecut
E.D.M., Inc., 159 S.W.3d 721, 728-29 (Tex.App.--Dallas 2005, no
pet.)(interpreting the Merritt court's analysis of judicial
immunity in light of Section 7.003).

Appellants assert that because Constable Abercia's deputies acted in
good faith and with reasonable diligence, they were entitled to immunity
under Section 7.003 as well as judicial immunity as a matter of law.
Specifically, Appellants point to testimony from Captain Lacey and
Lieutenant Bromley, in which they both indicated that they would not have
gone back to levy again at Gloria's if they only recovered $112 during
their first attempt at execution. Each officer, however, also indicated
that under such circumstances they would have made contact with
plaintiff's attorney or the court to receive further instruction or would
have obtained additional information about assets identified by
plaintiff's attorney in post-judgment discovery. Here, the evidence showed
that after the first attempt at execution, Kingvision contacted Constable
Abercia's deputies and requested diligence on their part and at a minimum,
a second attempt to levy at Gloria's. Before the writ expired, Kingvision
requested that the deputies levy on non-exempt property at Gloria's beyond
its initial "cash and coin" request and further directed the deputies to
investigate non-exempt property at defendant's residence. Thus, there was
evidence that Constable Abercia was aware of property subject to execution
before the writ expired, but nevertheless his deputies did not act on
Kingvision's requests, which, in effect, cut short the life of the
writ--simply because they did not feel it was worthwhile to levy a second
time. We conclude Appellants failed to establish their affirmative defense
of immunity as a matter of law. Issue Five is overruled.

Penal Bond

In Issue Six, Appellants argue the trial court erred in ordering
Constable Abercia and Old Republic Surety jointly and severally liable for
the full amount of the judgment because Old Republic Surety's liability
was limited to the statutory maximum penal sum of $1,500.

Before entering office, a constable must execute a bond with two or
more good and sufficient sureties or with a solvent surety company
authorized to do business in this state.

See Tex.Loc.Gov't Code Ann. § 86.002(a), (c)(Vernon Supp.
2006). The bond must be payable to the governor and the governor's
successors and is conditioned upon faithful performance of the duties
imposed by law. See id. Importantly, the bond must be approved by
the county commissioners court who must set the bond in an amount of not
less than $500 or more than $1,500. See id. § 86.002(a). Further,
under subsection (c), claims may be brought for recovery on the bond until
the whole amount of the bond is recovered, that is, the bond remains in
force until the penal sum is exhausted. See id. § 86.002(c).

Constable Abercia executed the requisite bond with Old Republic Surety
in the amount of $1,500. Old Republic Surety does not dispute that it is
obligated to pay Kingvision under the bond if all or part of the trial
court's judgment is affirmed, but instead contends that it is only liable
up to the $1,500 maximum limit of the penal bond. Under Texas law, a
surety's liability is generally limited to the penal sum of the bond.
Great American Insurance Co. v. North Austin Municipal Utility
District No. 1, 908 S.W.2d 415, 426 (Tex. 1995). Section 86.002
specifically limits the penal sum for which a constable's surety will be
held liable for the constable's faithful performance of his or her duties.
Thus, by its plain language, Section 86.002 limits Old Republic Surety's
liability to the amount of the bond.

Kingvision, however, argues that Old Republic Surety is asserting an
affirmative defense that it failed to plead and prove and thus, it has
waived its limited liability defense on appeal. We disagree. Rule 94 of
the Texas Rules of Civil Procedure requires a party to plead the listed
affirmative defenses and "any other matter constituting an avoidance or
affirmative defense." See Tex.R.Civ.P. 94. As a matter of law,
Old Republic Surety is liable for only the penal sum of the bond. Contrary
to Kingvision's characterization of the statutory penal bond, Old Republic
Surety was not asserting a matter of avoidance, a policy exception under
an excess clause, a Section 3.606 defense, a statutory damages cap, an
immunity claim, lack of capacity, statute of limitations, an offset,
invalidity of a statute, unconstitutionality of a statute as applied, or
preemption. We conclude Kingvision's waiver contention is without
merit.

Kingvision also contends that Old Republic Surety is fully liable
because Section 34.065 specifically states that a surety is liable "for
the full amount of the debt, plus interest and costs." Section 34.065
states in pertinent part:

If an officer fails or refuses to levy on or sell property subject to
execution and the levy or sale could have taken place, the officer and his
sureties are liable to the party entitled to receive the money collected
on execution for the full amount of the debt, plus interest and costs.

See Tex.Civ.Prac.& Rem. Code Ann. § 34.065 (Vernon
1997).

Kingvision argues that the plain language of Section 34.065 requires
that Old Republic Surety be held liable of the full amount of the
judgment, in excess of the penal bond. Such an interpretation, however,
would conflict with Section 86.002 and be contrary to the Legislature's
intent to limit the surety's liability to a maximum amount of $1,500 for
the constable's faithful performance of his or her duties. See
Tex.Gov't Code Ann. § 311.023 (Vernon 2005); Tex. Dep't of Transp.
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)(primary goal of
statutory construction is to ascertain and give effect to the
Legislature's intent in enacting it). To the extent that there is a
conflict between Section 34.065 and Section 86.002, we conclude that
Section 86.002 as the more specific statute controls. See
Tex.Gov't Code Ann. § 311.026(b)(Vernon 2005). Issue Six is sustained.

CROSS-APPEAL

Kingvision raises two issues in its cross-appeal. In Cross-Issue One,
Kingvision argues that the trial court's September 8, 2004 order is the
valid order of this case, not its January 14, 2005 order. In Cross-Issue
Two, Kingvision argues that the trial court erred by awarding it less than
the full amount of the underlying judgment debt because Constable Abercia
and Old Republic Surety failed to plead and prove any defense to a full
award.

With regard to its first cross-issue, the record shows that the trial
court entered an order granting Kingvision's motion to recover full amount
of judgment on September 8, 2004. Subsequently, Constable Abercia, joined
by Old Republic Surety, filed a motion to modify or reform the judgment or
alternatively to grant a new trial. On December 22, 2004, the trial court
vacated the September 8 order. On January 14, 2005, the trial court signed
the Final Order Granting Motion to Recover Full Amount of Judgment. The
final order held Appellants jointly and severally liable to Kingvision for
$109,690.98, plus interest and costs, and imposed a fine of $100 on
Constable Abercia for contempt.

The trial court has plenary power to grant a new trial, or vacate,
modify, correct, or reform a judgment any time before the judgment becomes
final. See Tex.R.Civ.P. 329b(d), (e). If a judgment is modified,
corrected, or reformed in any respect, the time for appeal shall run from
the time the modified, corrected, or reformed judgment is signed.
See Tex.R.Civ.P. 329b(h). Even when a subsequent judgment differs
from the original judgment only by the signature date, the subsequent
judgment vacates the former judgment. Owens-Corning Fiberglas Corp. v.
Wasiak, 883 S.W.2d 402, 411 (Tex.App.--Austin 1994, no writ). Any
change, whether or not material or substantial, made in the judgment while
the trial court retains plenary power will restart the appellate timetable
from the date the modified judgment is signed. Check v. Mitchell,
758 S.W.2d 755, 756 (Tex. 1988). The only exception to this rule occurs
when the face of the record reveals that the trial judge signed a second
judgment for the sole purpose of extending the appellate timetables.
Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex. 1994)(limiting the
holding of Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.
1973)).

In this case, the January 2005 judgment varied from the original
September 2004 judgment in the amount of the damages award. At the
December 17, 2004 hearing on motion to modify or reform the
judgment/motion for new trial, the trial court expressed its concern over
the damages award. From the record of the hearing it is clear that the
trial court vacated the September 2004 judgment primarily to modify its
judgment on damages as well as to reconsider the surety and interest rate
issues. Therefore, we conclude the trial court did not sign the second
judgment for the sole purpose of extending the appellate timetable.
Cross-Issue One is overruled.

In Cross-Issue Two, Kingvision contends the trial court erred by
awarding it less than the full amount of the underlying judgment debt. We
agree.

In our disposition of Appellants' Issue Two, we concluded that
Appellants failed to meet their burden in establishing a mitigation
defense, therefore the trial court did not err in concluding that they
were liable for Constable Abercia's failure to execute the writ pursuant
to Section 34.065. Section 34.065 specifically states that the "full
amount of the debt, plus interest and costs" is recoverable and further
instructs that "[t]he total amount is recoverable on motion of the party
filed with the court that issued the writ, following five days' notice to
the officer and his sureties." See Tex.Civ.Prac.& Rem.Code
Ann. § 34.065. As noted above, Appellants failed to plead and prove any
mitigation defense, therefore, Constable Abercia was liable for the full
amount, with Old Republic Surety liable up to the maximum amount of the
penal bond. We sustain Kingvision's second cross-issue as to its
contention regarding Constable Abercia's liability. We overrule
Kingvision's second cross-issue to the extent that it is contrary to our
disposition of Appellants' Issue Six.

DISPOSITION

For the reasons stated above, we reverse the trial court's judgment
with respect to its damages award against Constable Abercia and Old
Republic Surety, and in all other respects, the trial court's judgment is
affirmed. We remand the case to the trial court for further proceedings
consistent with this opinion.

DAVID WELLINGTON CHEW, Chief Justice

February 15, 2007

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment, not participating

1. Specifically, Rule 637 provides:

When an execution is delivered to an officer he shall proceed without
delay to levy the same upon the property of the defendant found within his
county not exempt from execution, unless otherwise directed by the
plaintiff, his agent or attorney. The officer shall first call upon the
defendant, if he can be found, or, if absent, upon his agent within the
county, if known, to point out property to be levied upon, and the levy
shall first be made upon the property designated by the defendant, or his
agent. If in the opinion of the officer the property so designated will
not sell for enough to satisfy the execution and costs of sale, he shall
require an additional designation by the defendant. If no property be thus
designated by the defendant, the officer shall levy the execution upon any
property of the defendant subject to execution.

Tex.R.Civ.P. 637.

2. Deputy Inman later testified that she checked the
vehicles owned by Mr. Baltazar after the writ expired in March 2004, in
preparation for the hearing, because the transfer of title occurred in
February 2004. However, she maintained that even if the vehicle had been
seized, they would not have been able to sell it because the writ expired
seven days after the November 10 letter. In addition, there was no
indication in the letter whether the vehicle was exempt or non-exempt.

3. Section 7.003 provides:

(a) Except as provided by Section 34.061, an officer is not liable for
damages resulting from the execution of a writ by a court of this state if
the officer:

(1) in good faith executes the writ as provided by law and by the Texas
Rules of Civil Procedure; and

(2) uses reasonable diligence in performing his official duties.

Tex.Civ.Prac.& Rem.Code Ann. § 7.003 (Vernon 2002).