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

Standard of Review on Appeal: We review 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)

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, 2008)(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).

GARNISHMENT CASE LAW FROM HOUSTON COURTS OF APPEALS


McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Frost)
(
appeal from garnishment order, subsequent appeal, divorce and SAPCR case, characterization of attorney's
fees as child support in divorce case, bankruptcy stay)
In seven issues, Chris, the garnishment debtor, contends that (1) the trial court abused its discretion by not complying with the
mandate of the appellate court, (2) the garnishment action violated the automatic bankruptcy stay, (3) the garnishment action
is improper because it is the second action for the same fees, (4) the manner in which Chris’s assets were taken from two
separate-property accounts was improper, (5) this court should stay execution of judgment until this court “rules on the
characterization of attorney fees as child support,”(6) Chris was improperly divested of his assets, and (7) the judgment is
manifestly unjust.  We affirm.
AFFIRMED: Opinion by Justice Frost        
Before Justices Brock Yates, Frost and Brown    
14-08-00365-CV Christopher J. McCloskey v. Anne Miriam McCloskey, Michael A. Craig, and Fidelity
Investments D/B/A National Financial Services, L.L.C.    
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern    
Chris argues, in part, under his fifth issue that the trial court lacked jurisdiction over the garnishment action
because the bankruptcy stay applied.  Because the stay did not apply, we also overrule this part of the fifth
issue.
     In his first issue, Chris contends the trial court abused its discretion by not complying with this court’s
2003 mandate to characterize the attorney’s fees in question as part of the property division rather than as
child support.  Because the remedy of garnishment is purely statutory, we look to chapter 63 of the Texas
Civil Practice and Remedies Code and the Texas Rules of Civil Procedure to determine the respective rights
and responsibilities of the parties in a garnishment action.  Jamison v. Nat’l Loan Investors, L.P., 4 S.W.3d
465, 468 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).  
     The only real issue in a garnishment action is whether the garnishee is indebted to the judgment debtor,
or has in its possession effects belong to the debtor, at the time of service of the writ on the garnishee and at
the time the garnishee files its answer.  Rowley v. Lake Area Nat. Bank, 976 S.W.2d 715, 718 (Tex. App.—
Houston [14th Dist.] 1998, pet. denied).  
     Under section 63.001 of the Texas Civil Practice and Remedies Code, a writ of garnishment is available
if, among other things, the garnishor has a valid subsisting judgment.  A judgment “shall be deemed final and
subsisting for the purpose of garnishment from and after the date it is signed, unless a supersedeas bond
has been filed.”  Tex. R. Civ. P. 657.  The record reflects that Anne applied for a post-judgment writ of
garnishment after the trial court signed a revised decree.  The writ recited that Chris was given the proper
statutory notice as required by Texas Rule of Civil Procedure 663a.  At the time of service of the writ, there
were sufficient funds in Chris’s account with Fidelity Investments to pay the amount due under the decree, as
set forth in the writ of garnishment.  


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  


CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS  

HOUSTON OPINIONS HOME PAGE