Application for Writ of Garnishment in Texas

What Is an Application for Writ of Garnishment?

Background

The purpose of a garnishment action is to apply the property, money, or credits of a debtor in the possession of another to the payment of a debt. (Bank One, Tex., N.A. v. Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 [Tex. 1992].)

The garnishor (plaintiff in garnishment) is subrogated to the rights of a debtor (defendant in garnishment) against the garnishee who is alleged to have possession of the debtor’s property. (Rome Indus., Inc. v. Intsel Sw., 683 S.W.2d 777, 779 [Tex. App. 1984].) The garnishor steps into the shoes of the debtor and may enforce against the garnishee whatever rights the debtor could have enforced had the debtor could have enforced had the debtor sued the garnishee directly. (San Felipe Nat’l Bank v. Caton, 668 S.W.2d 804, 805 [Tex. App. 1984].)

How to Structure the Motion

Pre-judgment garnishment is purely a statutory procedure. (Moody Nat. Bank v. Riebschlager, 946 S.W.2d 521, 523 [Tex. App. 1997].) The Texas Rules of Civil Procedure outline the procedures required for the issuance of a writ of garnishment. (Tex. R. Civ. P. 658.)

“Either at the commencement of a suit or at any time during its progress the plaintiff may file an application for a writ of garnishment. Such application shall be supported by affidavits of the plaintiff, his agent, his attorney, or other person having knowledge of relevant facts. The 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.)

“[T]he application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence.” (Tex. R. Civ. P. 658.) The facts may be based on “information and belief” if the grounds for such belief are specifically stated. (Metroplex Factors, Inc. v. First Nat’l Bank, 610 S.W.2d 862, 865 [Tex. App. 1980].)

Simply regurgitating the statutory language in an affidavit is not adequate to support the issuance of a writ of garnishment. (Metroplex Factors, Inc. v. First Nat’l Bank, 610 S.W.2d 862, 865 [Tex. App. 1980].)

Response

The primary question in a garnishment proceeding is whether the garnishee is indebted to the debtor as alleged by the garnishor in its application, and this often requires a determination of the title or ownership of the property held by the garnishee. (Thompson v. Fulton Bag & Cotton Mills, 286 S.W.2d 411, 414 [1956].)

A garnishor may only reach a bank deposit if the debtor is the true owner of the deposit. (Silsbee State Bank v. French Market Grocery Co., 132 S.W. 465, 466 [1910].) If a garnishee responds to a writ of garnishment by answering that it actually holds funds belonging to the debtor, the answer establishes prima facie proof that the debtor owns the funds, and without further evidence the garnishee may have those funds applied to pay the debt owed by the debtor. (Putnam & Putnam, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d 460, 463 [Tex. App. 1989].)

However, a debtor may controvert the garnishee’s answer. (RepublicBank Dallas v. Nat’l Bank of Daingerfield, 705 S.W.2d 310, 311 [Tex. App. 1986].) When a dispute arises concerning title or ownership of the garnished property, the probative force of the garnishee’s answer is destroyed, and the issue must be “tried as in other cases.” (Tex. R. Civ. P. 674.)

The Court’s Decision

“[A] writ of garnishment may only be issued when the demand is not contingent, is capable of ascertainment by the usual means of evidence, and does not rest in the discretion of the jury.” (Fogel v. White, 745 S.W.2d 444, 446 [Tex. App. 1988]; A. Wolfson’s Sons, Inc. v. First State Bank of Corpus Christie, 697 S.W.2d 753, 756 [Tex. App. 1988].)

Texas courts have long recognized that the remedy of garnishment is “summary and harsh and should not be sustained unless there is strict compliance with the statutory requirements.” (Fogel v. White, 745 S.W.2d 444, 446 [Tex. App. 1988].) It is an extraordinary remedy, as it may impound the money or property of an alleged debtor even before a judgment is obtained against him. (Beggs v. Fite, 106 S.W.2d 1039, 1042 [Tex. 1937].) As such, a pre-judgment writ of garnish is only available if a debt exists and the debit is “just, due and unpaid.” (Tex. Civ. Prac. & Rem. Code, § 63.001.)

Because the remedy of garnishment is purely statutory, garnishment proceedings cannot be sustained unless they strictly conform to statutory requirements and related rules. (Beggs v. Fite, 106 S.W.2d 1039, 1042 [1937]; In re Tex. Am. Express, Inc., 190 S.W.3d 720, 725 [Tex. App. 2005].) If any of the statutory requirements are not met, the judgment creditor’s right to have a writ of garnishment entered against the property of the debtor fails. (St. Louis, B. & M. Ry. Co. of Tex. v. Dallas Cooperage & Woodenware Co., 268 S.W.769, 771 [Tex. Civ. App. 1925].)

“The court in its order granting the application shall make specific findings of facts to support the statutory grounds found to exist, and shall specify the maximum value of property or indebtedness that may be garnished and the amount of bond required of plaintiff.” (Tex. R. Civ. P. 658.)

Monetary Awards

A garnishee may recover attorney’s fees expended in answering the writ of garnishment. (Tex. R. Civ. P. 677; Henry v. Ins. Co. of N. Am., 879 S.W.2d 366, 369 [Tex. App. 1994].)

Timeline

“No writ shall issue before final judgment except upon written order of the court after a hearing, which may be ex parte.” (Tex. R. Civ. P. 658.)

Documents for Application for Writ of Garnishment in Texas

Sort By

Popular Bank vs. Charles Schwab & Co., Inc. vs. Marco A. Villar also known as Marco Antonio Villar-Mondragon document preview

Request for Service - Charles Schwab & Co., Inc. - Request for Service

3 pages

ATTORNEYS 5120 WOODWAY, SUITE 9000 HOUSTON, TEXAS 77056-1725 norma@dntlaw.com DONALD L. TURBYFILL * telephone DEBORAH C.S. RIHERD PRIL 15, 2024 (713) 622-8338 R. LEE TURBYFILL to…