law-garnishment

law-garnishment | execution collection of judgment | post-judgment remedies

Procedure to Obtain a Writ of Garnishment

   Because garnishment is a purely statutory procedure that affords a harsh remedy, “garnishment
proceedings cannot be sustained unless they strictly conform to the statutory requirements and related rules.”
Walnut Equip. Leasing Co. v. J-V Dirt & Loam, a Div. of J-V Marble Mfg., Inc., 907 S.W.2d 912, 915 (Tex. App.
—Austin 1995, writ denied). Accordingly, “[t]he garnishor must strictly comply with the requirement that it serve
the debtor, and its failure to comply is not a mere irregularity.” Id.

   A garnishment application “shall comply with all statutory requirements and shall state the grounds for
issuing the writ and the specific facts relied upon by the plaintiff to warrant the required findings by the court.”
Tex. R. Civ. P. 658 (emphasis added). The “statutory requirements” to which rule 658 refers vary depending
on the circumstances under which the writ is sought. The circumstances allowing for the issuance of a writ of
garnishment—three in all—are established by Texas Civil Practice and Remedies Code section 63.001:

(1) an original attachment has been issued;

(2) a plaintiff sues for a debt and makes an affidavit stating that:

(A) the debt is just, due, and unpaid;

(B) within the plaintiff’s 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

(3) a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s
knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the
judgment.

Tex. Civ. Prac. & Rem. Code Ann. § 63.001 (Vernon 2008).

   Subsection (2) of section 63.001 applies to pre-judgment writs of garnishment. See id. § 63.001(2) (“a
plaintiff sues for a debt” and “the debt is just, due, and unpaid”). In contrast, subsection (3) plainly applies to
post-judgment garnishment. See id. § 63.001(3) (“a plaintiff has a valid, subsisting judgment”); see also
Hudler-Tye Constr., Inc. v. Pettijohn & Pettijohn Plumbing, Inc., 632 S.W.2d 219, 221 (Tex. App.—Fort Worth
1982, no writ) (“The statutory requirements for post-judgment garnishment writs, contained in [the
predecessor to section 63.001(3)] . . . .”).

   Accordingly, an application for a pre-judgment writ of garnishment (and its supporting affidavit) will
necessarily contain some different recitations from those in an application for a post-judgment writ of
garnishment (and its supporting affidavit). See Metroplex Factors, Inc. v. First Nat’l Bank, Bridgeport, 610 S.W.
2d 862, 866 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.) (considering predecessors to section 63.001
(2) and (3), both of which were worded substantially the same as their current counterparts; holding that
predecessor to section 63.001(3) applied to post-judgment garnishment proceedings, whereas predecessor
to section 63.001(2) did not; indicating that post-judgment-garnishment affidavit that tracked requirements of
63.001(3), but not those of 63.001(2), would thus have been sufficient had it not been defective for totally
independent reason).

SIMULIS LLC v. G.E. Electric Corp (Tex.App.- Houston [1st Dist.] Nov. 26, 200 8)(Taft)
(garnishment of payroll funds approved)
AFFIRM TC JUDGMENT: Opinion by JusticeTim Taft
Before Justices Taft, Keyes and Alcala
01-06-01041-CV SIMULIS, L.L.C. v. General Electric Corporation and Amegy Bank of Texas
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble
GARNISHMENT: STANDARD OF REVIEW ON APPEAL
The court of appeals reviews a trial court’s ruling on a motion to dissolve a writ of garnishment for abuse of
discretion. See Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 705 (Tex. App.—Houston [14th Dist.]
2007, pet. denied). A trial court abuses its discretion if it acts without reference to guiding rules and principles
or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).

Amegy Bank N.A. v. Southern Crushed Concrete, Inc. (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Radack)
(garnishment proceeding, violation of writ of garnishment, cross-motions for summary judgment)

Lakota Resources, Inc v. Pathex Petroleum, Inc. (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes)
(post judgment garnishment proceeding, no interlocutory appeal permitted, DWOJ)
DISMISS APPEAL: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Alcala
01-07-00537-CV Lakota Resources, Inc. v. Pathex Petroleum, Inc., Oneok Energy Services Company, LP
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison

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