The Cadle Co as assignee of Amex v. Rollings (Tex.App.- Houston [1st Dist.] Feb. 25,
2010)(Jenning) (scire facias, revival of dormant judgment)
We reverse the order of the trial court and render judgment granting Cadle’s motion
for scire facias, thus reviving the dormant judgment.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings     
Before Justices Jennings, Hanks and Bland   
01-09-00165-CV   The Cadle Company by assignment from American Express Travel Related Services
Company v. Frank A. Rollins, Individually, and D/B/A Lord's Pharmacy    
Appeal from 215th District Court of Harris County
Trial Court Judge: Hon.
Steven E. Kirkland

MEMORANDUM OPINION
   
Appellant, The Cadle Company (“Cadle”), by assignment from American Express Travel Related Services
Company, challenges the trial court’s order denying its motion for scire facias to revive a dormant
judgment  [See Tex. Civ. Prac. & Rem. Code Ann. § 31.006 (Vernon 2008), § 34.001 (VernonSupp.
2009)]
against appellee, Frank Rollins, individually and doing business as Lords’ Pharmacy. In its sole issue,
Cadle contends that it conclusively established its entitlement to revive the judgment.
   
We reverse the order of the trial court and render judgment granting Cadle’s motion for scire facias, thus
reviving the dormant judgment.

Factual and Procedural Background
   
In its motion and amended motion for scire facias, filed on September 29, 2008 and October 17, 2008
respectively, Cadle asserted that the trial court had signed a final judgment in its favor and against
Rollins on September 25, 1985, valued at approximately $45,000. Cadle further asserted that the 1985
judgment remained unsatisfied despite its multiple attempts to collect on the judgment through five writs of
execution issued and served in the case. Cadle sought to revive the judgment by a writ of scire facias
See id.
and attached to its motion the judgment and writs.
   
Rollins, in his response, asserted that Cadle was “guilty of gross negligence, waiver, estoppel, and
unclean hands for allowing the judgment to become dormant.” He also asserted that the same issue had
been previously litigated, he is an elderly man who cannot satisfy the judgment, and reviving the
judgment would allow Cadle to continue its harassment of him.
   
The trial court denied Cadle’s motion for scire facias to revive the judgment and Cadle’s motion for new
trial.

Scire Facias
   
In its sole issue, Cadle argues that the trial court erred in denying its motion for scire facias to revive the
1985 dormant judgment against Rollins because it timely filed the motion and Cadle is, therefore, entitled
to have the dormant judgment revived. Rollins argues that the trial court had discretion to deny the
motion because Cadle “did not provide any reason whatsoever for its negligence in allowing” the
judgment to become dormant. He asserts that the “mere timely filing of the motion for scire facias, without
any factual or equitable basis, is not sufficient to revive a judgment.” Rollins further asserts that he is
elderly, Cadle’s “negligence, delays, and tardiness only serve to harass and annoy” him, and the trial
court “took into consideration that the 1985 judgment was relating to a credit card debt” that he “does not
have the financial ability to pay.” Rollins agrees that the underlying judgment was preserved until April 27,
2008 by Cadle’s execution of writs.
   
Section 34.001 of the Texas Civil Practice and Remedies Code, which governs preservation and
dormancy of judgments, provides, in pertinent part,

   (a)     If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of
record or a justice court, the judgment is dormant and execution may not be issued on the judgment
unless it is revived.

   (b)     If a writ of execution is issued within 10 years after rendition of a judgment but a second writ is
not issued within 10 years after issuance of the first writ, the judgment becomes dormant. A second writ
may be issued at any time within 10 years after issuance of the first writ.
   . . . .
Tex. Civ. Prac. & Rem. Code Ann. § 34.001 (Vernon Supp. 2009).
   
Under section 34.001, a judgment creditor may renew a judgment and keep the judgment alive
“indefinitely by having a writ of execution issued within ten years of the previous writ.” Cadle Co. v.
Fahoum, No. 2-06-459-CV, 2008 WL 754992, at *2 (Tex. App.—Fort Worth Mar. 20, 2008, no pet.) (mem.
op.); see also Zummo v. Cotham, 155 S.W.2d 600, 601 (Tex. 1941) (stating, under predecessor version
of statute, that judgment creditor has simple and inexpensive way to “prolong the life of the judgment
indefinitely by merely having execution timely issued”). Once a judgment becomes dormant, the “dormant
judgment may be revived by scire facias or by an action of debt brought not later than the second
anniversary of the date that the judgment becomes dormant.” Tex. Civ. Prac. & Rem. Code Ann. § 31.006
(Vernon 2008). The effect of section 31.006 is to provide a twelve year residual limitations period for final
judgments. Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17 (Tex. App.—Dallas 2007, pet. denied);
Longhurst v. Clark, No. 01-07-00226-CV, 2008 WL 3876175, at *2 (Tex. App.—Houston [1st Dist.] Aug.
21, 2008, no pet.) (mem. op.).
   
In determining whether to issue a writ of scire facias to revive a dormant judgment, a trial court considers
the date of the judgment, evidence of any writs of execution issued on the judgment, and the date of the
motion to revive the judgment scire facias. See Thomas v. Poonen, No. 05-00-01233-CV, 2001 WL
755638, at *2 (Tex. App.—Dallas July 6, 2001, no pet.) (not designated for publication); see also Trad v.
Colonial Coins, Inc., No. 14-02-00172-CV, 2003 WL 124680, at *2 (Tex. App.—Houston [14th Dist.] Jan.
16, 2003, no pet.) (mem. op.) (stating that because appellant timely filed motion for scire facias, the
judgment “should be revived,” and indicating that revival of judgment is not discretionary if statutory
requirements to revive dormant judgment are satisfied). A scire facias proceeding is a non-evidentiary
hearing for which there is no need for findings of fact and conclusions of law. Thomas, 2001 WL 755638,
at *3.
   
The parties agree that the trial court’s judgment became dormant on or about April 27, 2008. Cadle filed
its motion and amended motion for scire facias to revive the dormant judgment on September 29, 2008
and October 17, 2008, well before the second anniversary of the date that the judgment became
dormant. See Tex. Civ. Prac. & Rem. Code Ann. § 31.006. Thus, Cadle satisfied the statutory
requirements of section 31.006 to revive the judgment, and the trial court did not have the discretion to
deny Cadle’s timely filed motion for scire facias. We must reject Rollins’s argument that the use of the
word “may” in section 31.006 provided the trial court with the authority to deny the motion based upon the
equitable reasons proffered by him, including his age and his financial inability to pay the judgment. We
conclude that the use of the word “may” in section 31.006 simply refers to the two ways identified in the
statute in which a party may revive a judgment: a scire facias or an action of debt. See id. Accordingly, we
hold that the trial court erred in denying Cadle’s motion for scire facias.
   
Conclusion
   
We reverse the order of the trial court and render judgment granting Cadle’s motion for scire facias, thus
reviving the dormant judgment.

                                                                 
Terry Jennings

                                                                 Justice

Panel consists of Justices Jennings, Hanks, and Bland.