11 Civil Process

Acknowledgement

The section on Civil Process was reviewed by the Speci= al Skills Discipline Chair and the Subject Matter Expert (SME) listed below.

John Steinsiek, Civil Tr= aining Specialist, johnsteinsiek@yahoo.= com

Lieutenant Linda Draper,= Grayson County Sheriff’s Office, draperl@co.grayson.tx.us<= /o:p>

Constable Chad Jordan, C= onstable Pct 3 & 4 Hood County, c_jordan@charter.net

Chief Deputy Carlos Lope= z, Travis County Constable Pct 5, carlos.lopez@co.travis.tx.us

Constable Mark McDonald, Comanche County Constable, cconstable@htcomp.net<= /span>

11. = Civil Process and Liability

Unit Goal: 11.1. The student will be able to identify the liability assumed resulting from improper acts or failure to a= ct during daily law enforcement duties and in the execution of civil process.<= o:p>

11.1.1 Recognize that peace officers and = the entity that employs them are liable for improper acts likely resulting in c= ivil action.

The potential for civil liability in any action a peace officer takes has greatly increased in recent years. When an alleged civil wrong occurs= , the civil action is not usually limited to just the individual officer, but also involves the agency or political sub-division that represents the commissio= ning authority of the officer. (Title 42 Section 1983 United States Co= de)

Although there are specific statutory prohibitions aga= inst these actions, agencies and officers may also be held civilly responsible.<= /p>

Potential liability:

Employing agency
Governmental liability - 101.021 T= CPRC
Officer

Reference: Texas Criminal Law an= d Traffic Law Manual LexisNexis 2007-2008 Edition,&n= bsp; Lexis Nexis State and Federal Court Rules & Rules of Evidence 20= 06 Edition, Web site is www.capitol.= state.tx.us/statutes/statutes.html (Legislative updates may take some= time to be posted)

<= /o:p>

Officer liability:

Due course of law - 1.04 CCP-Bill = of Rights Art 1, Texas Constitution Sec. 19
Signature on Documents in the officer’s official capacity Texas Rules of Evidence Rule 902 (2)= - Self-Authentication -- False or inaccurate statements in documents sig= ned in the officer’s official capacity may be prosecuted as if they = were a notarized statement.
Search and seizure - 1.06 CCP
Official misconduct - 3.04 CCP
Racial Profiling - 3.05 CCP=
Improper influence - 36.04 PC
Tampering with witness - 36.05 PC<= /span>
Obstruction or retaliation - 36.06= PC
Acceptance of honorarium - 36.07 P= C
Perjury - 37.02 PC
Tampering with or fabricating phys= ical evidence - 37.09 PC
Tampering with governmental record= - 37.10 PC
Abuse of official capacity - 39.02= PC
Official oppression - 39.03 PC<= /li>
Violations of the civil rights of = person in custody - 39.04 PC

Process:<= o:p>

Liability for Refusal or Neglect in Performance of Official Duties - 7.001 TCPRC
Liability regarding execution of w= rits - 7.003 TCPRC
Neglecting to execute process - 2.= 16 CCP
Execution of process; penalty (she= riff) - 85.021 LGC
Failure to execute process (consta= ble) - 86.024 LGC

11.1.2. Describe the difference between cr= iminal and civil liability for wrongful actions taken by peace officer.=

In many case= s before civil action is initiated, a case may be reviewed by the Grand Jury for criminal action or charges filed for penal or statutory violations of the law. If the disposition results in a conviction and punishment are rendered, the officer(s) and his or her commissioning authority are most likely to be involved in civil action and = is a totally separate action. In today’s environment, if a wrong occurs from an act performed as a pea= ce officer, criminal action will be reviewed and most likely will result in so= me sort of civil action. Also no= te the cost of civil actions can be extremely costly individually and to the governmental entity.

Unit Goal: 11.2. The student will be able to describ= e the difference between civil and criminal law.

11.2.1 Identi= fy the major differences between civil and criminal law.

Criminal= Law

Criminal law regulates the conduct of individuals through threats of fines and imprisonm= ent. In criminal cases, the state brings an action against an individual to puni= sh him for breaking one of their laws. The peace officer may assume direct responsibility of the investigat= ion and filing criminal charges against the defendant.

Criminal judgments may result in the guilty party being assessed a fi= ne only or a fine and period of confinement or community service when the court finds the defendant committed the illegal act, beyond a reasonable doubt.

Civil La= w

Civil law de= fines the legal significance of public and private acts and regulates conduct thr= ough injunctions and the award of money damages. Important: This is t= he plaintiff’s suit. The peace officer should not assume ownership of the suit. The peace officer is re= quired to follow the rules and the laws that govern the execution of the civil doc= uments.

In a civil c= ase, a person brings a lawsuit seeking some sort of redress for an injury he claim= s to have suffered. The person may= be an individual, partnership, corporation, or sometimes the state. The redress that the person seeks = is usually in the form of money. He asks the court to order his opponent to pay him monetary compensation or an injunction to the defendant for the wrongful act.

Civil judgme= nts usually require the part adjudged of a wrongful act to compensate the wrong= ed party in the form of money or the return or possession of property.

In a civil case, a judgment is rendered in favor of the complaining p= arty or the defendant or somewhere in between based upon the preponderance of evidence before a judge or jury.

<= /o:p>

Unit Goal: 11.3. The student will= be to describe the difference between general contempt of court and constructive contempt of court.

11.3.1 Identify the difference between general cont= empt of court and constructive contempt of court.

Gene= ral Contempt of Court= -- In both criminal and civil law there are provisions for enforcement of co= urt orders by holding the person in Contempt of Court. In Chapter 21 (Sec 21.001) of= The Government Code courts are granted broad authority to ensure the proceedings are conducted with dignity and in an orderly and expeditio= us manner. This can include setting standards for wearing apparel during court proceeding. Section 21.002 provides for t= he following punishment rages: County Courts and higher-A fine of not more than $500.00 or 6 months in jail or both (Section 21.002)(b). Justice Courts and Municipal Courts—A fine of $100.00 or 3 days in jail or both (Sec. 21.002)= (c).

Constructive Contempt of Court--Generally used to gain compliance = with civil court orders. If a person has failed to obey a court’s orders a Show Cause (Notice)= can be issued and served to that person.&= nbsp; This allows the defendant to present evidence why he should not= be held in Contempt of Court. If the person fails to appear the court can issue an Attachment or Capias= to have the defendant brought before the court. The court may have the defend= ant jailed until the court order has been complied with (Sec. 21.002(e). Contempt for failure to= pay “Child Support” are governed by C.C.P. Art 42.033 and Chap= ter 157 of the Family code.

Unit Goal: 11.4. The student will be able to unders= tand common English and Latin terms used in civil process.

11.4.1 Define the most common English term= s used in civil process.

Reference: Black’s Law Dictionary<= /o:p>

<= /o:p>

Definitio= ns of Civil Process Term

· AFFIANT ‑ The person who swears to= an affidavit or statement.

· AFFIDAVIT ‑ A written or printed sta= tement or declaration of facts, made voluntarily and sworn to or affirmed by an affiant before a person having authority to administer an oath or affirmati= on.

· AFFIDAVIT OF SERVICE - A sworn state= ment that a document (such as a summons) has been delivered or exhibited to a designated person. Also know as a return.

ALIAS CITATION - A citation issued after the original citation usually directed to the sheriff of = another county or directed to the defendant under another name.
ALTERNATE SERVICE – A cou= rt approved method of delivering a court document to an uncooperative defendant.

· ANSWER ‑ A pleading in a civil ma= tter in which one party (defendant) responds to the claim of another party (plaintiff); in an answer, the defendant will deny the allegations in the plaintiff’s complaint or agree with the facts but allege new informat= ion which should prevent the plaintiff from recovering on the facts originally = presented.

· APPEAL ‑ A request or complaint t= o a higher court to correct an injustice or error committed by a lower court; in justice court, the removal of the cause from justice court to county court = for the purpose of obtaining a review and new trial.

· ATTACHMENT ‑ The seizure of persons or property so that they will come under the custody and control of the court;= the process occurs by virtue of a writ, summons or other judicial order.

· BAILEE – A person who recei= ves personal property from another as a bailment. Black’s P151=

· BAILMENT – A delivery of pers= onal property by one person (the bailor<= /i>) to another (the bailer) who hol= ds the property for a certain purpose under an express or implied-in-fact contract. • Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title.&nbs= p; Black’s P 151 - 152

CAPIAS (Latin) ‑ A writ similar to an = arrest warrant; a judicial writ commanding a peace officer to take a person i= nto custody to answer specific charges

·      CHATTEL ‑ An article of personal p= roperty as distinguished from real property.

·      CITATION – Official process by whic= h a plaintiff gives a defendant notice of suit. The purpose is to give the court jurisdiction over the parties, to satisfy due process requirements, and to provide the defendant the opportunity to appear and defend himself.

·      COMPLAINT ‑ An affidavit or sworn statement made before the court which charges the commission of an offense within the jurisdiction of the court.

·      COURT OF RECORD ‑&nbs= p;A court whose proceedings are recorded by a court reporter; justice courts are not courts of record; county and district courts are courts of record.=

·      DEFAULT J= UDGMENT ‑ A judgment entered by the court upon the failure of a party to plead or appea= r at the appointed time.

·      DILIGENCE EFFORT – Persis= tent activity, prudence or care; “diligent effort” is that which is properly expected from a reason and prudent person under the particular circumstances.

·      EXECUTION – a writ issued by a= court of competent jurisdiction, commanding an officer to collect the judgment am= ount and costs or to levy upon the non-exempt property of a defendant, in satisfaction of a previous judgment rendered by the issuing court.

·      EXEMPT PROPERTY - Property specif= ied by statute, which may not be seized or sold to satisfy an execution or attachm= ent.

·      EX PARTE PROTECTIVE ORDER = 211; An order issued by a family court (district or county court) to prohibit a defendant from certain acts including further family violence, and requiring the defendant to appear in court on a specified date and time. It may inclu= de an order directing a law enforcement officer to inform a defendant to vacat= e a premise.

·      Effective January 1, 2008 a violation of a temporary ex-parte protective order is criminally enforceable under Section 25.074= of the Texas Penal Code, provided that the respondent has been served with the temporary ex-parte protective order.

·      FORCIBLE ENTRY AND DETAINER &#= 8211; (Eviction suit) Provide a summary, speedy, simple, and inexpensive remedy for determination of who is entitled= to possession of real property and/or post due rent.

·      GARNISHEE ‑ One who possesses money = or property belonging to a defendant or who owes a debt to the defendant and t= he money, property or debt is attached so that it is not paid to the defendant= but held for the benefit of a third party (usually, a plaintiff).

·      GARNISHMENT ‑ A statutory proceeding w= hereby a person's property, money, or credits&nbs= p; of a debtor in possession or under control of or owing by another, called a garnishee, is applied to debt of the debtor.

·      GOOD FAITH ‑ Ho= nesty of intention; sincerity.

·      GUARDIAN AD LITEM ‑ = ;A person appointed by the court to represent a minor, an incompetent person or any other person entitled to such protection by law

·      HABEAS CORPUS (Latin - “You= have the body of”) – Court order that commands anyone having a perso= n in custody or their control to produce the person at the time and place named = in the writ and to show why that person is being held or under restraint.=

·      INDIGENT/PAUPER – A suitor who, on account= of poverty, is allowed to sue or defend without being chargeable with costs; a= lso, an indigent criminal defendant who has a right to assigned defense counsel.=

·      INJUNCTION ‑ Commands the person(s) t= o whom it is directed to desist or refrain from the commission or continuance of t= he act enjoined or to obey and execute such order as the court has seen proper= to issue.

·      JURISDICTIONAL AMOUNT ‑ T= he money amount involved in the particular case or dispute by which the jurisdiction of the court to determine the case is measured; part of “subject matter” jurisdiction.

·      LEVY ‑ To collect, gather, take= up, seize, or execute on monies, real, or personal property under a lawfully is= sued writ.

·      LIABILITY ‑ Being responsible for ac= tual damages, punitive damages or possible loss.

·      MAGISTRATE – A civil public officer invested with powers and functions, which may be judicial, executive, or legislative in nature; a justice of the peace is a magistrate. <= /span>

·      MAGISTRATE’S EMERGENCY ORDER FOR EMERGENCY PROTECTION – An order issued for the protection of a vic= tim of an offense involving family violence when the defendant is arrested. When the defendant appears before = the Magistrate the order maybe requested by the victim, the guardian of the vic= tim, the peace officer, the attorney representing the state or on the Magistrate= own motion. CCP §17.292

·      MECHANIC'S LIEN ‑ A c= laim created by law for the purpose of securing priority of payment of the value= of work performed and materials furnished in erecting or repairing buildings or improvements on land.

·      MOTION ‑ A written or oral applic= ation for a ruling or order from the court.

·      MOVE ‑ To make an application t= o a court to rule, order, or take action in a matter.

·      NOTICE – An order, writ, or process. An order or direction, emanating f= rom authority to an officer, or body of officers, commanding the officer to do = some act within the officer’s powers. An order in writing, sent out by a justice of the peace or other like officer, to bring a person or record bef= ore the issuing authority. Someti= mes called a Precept.

·      OATH ‑ Any form of affirmation = by which a person agrees to be is bound in conscience to perform an act faithf= ully and truthfully.

·      OFFICIALLY ATTESTED ‑ = ;An acknowledgment of an individual acting in the individual’s official capacity bearing witness to another's signature being affixed to a document= .

·      ORDER ‑ Every direction of a cou= rt or judge; a mandate or command.

·      ORDER of SALE= – A writ issued by a court of compete= nt jurisdiction, ordering specific personal or real property to be sold in the same manner as in execution. Exempt property statues do not apply to proper= ty listed within an Order of Sale. Sometimes utilized to sell property already= in possession of an officer, due to the actions of another type of writ. =

·      PERSONAL PROPERTY ‑ = ;Articles associated with a person, as opposed to real property (land).

·      PETITION – A document filed b= y the plaintiff with the clerk of the court that outlines the basis of the compla= int (suit) against the defendant and the relief being sought from the court.

·      PLAINTIFF - A person who complains or sues in a civil lawsuit and is so named on the record.

·      PLEA - The answer, which the defendant in a leg= al proceeding makes to the complaint against the defendant.<= /p>
·      PLEADINGS - Oral or written statements made to the c= ourt presenting the claims and defenses of the parties.

·      PRECEPT - An order or direction coming from a cour= t or other authority to an officer or body of officers, commanding the officer or officers to do some act within the scope of their powers; a rule which impo= ses a standard of conduct

·      PROTECTIVE ORDER – An order iss= ued by a family court (district or county court) to order the protection of a fami= ly member or member of a household against further family violence. It is criminally enforceable under Section 25.074 of the= Texas Penal Code.

·      REAL PROPERTY - Land and genera= lly whatever is built, growing upon, or affixed to it.

·      RE-ENTRY – Allows a commercial or residential tenant to resume possession of a leased premise after an unlawful lockout. =

·      REPLEVY - In reference to a replevin action, to redeliver goods that have been seized by an officer to the original possess= or of them, upon the original possessor’s giving security conditioned on prosecuting an action to determine the legality of the seizure.<= /span>

·      RETURN – The endorsement by an officer upon a process stating what, where, when, why, how, and to whom service and compli= ance of the commands within the process were made.

·      RULES OF CIVIL PROCEDURE - The b= ody of law promulgated by the Texas Supreme Court to establish the manner and mean= s by which civil cases are determined by the courts.

·      SEQUESTRATION – The temporary seizure or setting a= side of specific property to which a party to a suit has claim of ownership. The object of Sequestration is to allow parties to protect and preserve the property during the suit.

·      SERVICE - The delivery of a writ, notice, injuncti= on, etc., by an authorized person, to a person who is thereby officially notifi= ed of some proceeding concerning that person.

·      SHOW CAUSE – An order iss= ued to a party to appear as directed and present to the court reasons or considerations why a particular order or decree should not be acted upon. Usually instituted by the plaintiff upon the defendant to show cause as to = why they should not be held in contempt for failure to follow previously issued orders.

·      SUBPOENA - Process initiated by a party commanding a witness to appear and give testimony, at a specified place and time to test= ify upon a certain matter.

·      SUBSTITUTED SERVICE - Delivery of proc= ess in a method other than personal service (such as by mail or by publication).

·      SUMMONS - An order to a person to appear in court = on a specific date to answer a case filed against the person; it is a method by which the court acquires jurisdiction over a party.

·      TEMPORARY RESTRAINING ORDER – = Issued by a court to a defendant restraining them from doing or prohibiting certain acts. It is date sensitive and has a hearing date commanding appearance no = more than 14 days from date of issuance. It is enforceable by the court only by a contempt proceeding.

·      TORT – A private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages.

·      TRIAL - Proceedings in open court during which t= he ultimate issues in a case are determined, by a fact finder (judge or a jury= ).

·      VENUE - The place where a case is tried.

·      WITNESS - A person whose declaration under oath (or affirmation) is receiv= ed as evidence for any purpose, whether such declaration be made on oral examination, by deposition, or by affidavit.

·      WRIT Of POSSESSION   (EVICTION) – Allows a landlord who prevails in an eviction suit to regain possession of the premises that were in dispute.

WRIT Of POSSESSION (Particular Property) - When the judgment is for personal property, and it is shown by the pleadings and evidence and the verdic= t, if any, that such property has an especial value to the plaintiff, the court may award a special writ for the seizure and delivery of such property to the plaintiff.

11.4.2 Define the most common Latin terms = used in civil process. =

Reference: Black’s Law Dictionary=

·      AD LITEM (Latin) – At pleasure. • The modern term a= d-lib (adj. & Vb.). Borrowed fr= om drama and music, is essentially the same; it means “at the performer’s pleasure,” and allows the performer discretion in innovating a part impromptu. Black’s P46. For the purposes of the suit; a guardian ad litem is a person appointed by the court to represent a minor, an incompetent person or any other person entitled to such protection by law.<= o:p>

·      DUCES TECUM – Bring with y= ou. Black’s P 538 Common use is a Subpoena Duces Tecum to secure records in a criminal case. The term was removed from civil la= w when the rules were revised to allow a S= ubpoena to require an individual appear in court or require records and other thing= s to be produced in court. Subpoena Duces Tecum is still issued in criminal law cases.

·      ET AL – (et alii or et alia) And other persons <the office of Thomas = Webb et al.> An abbreviation for= et alii, which literally means “and others.” Black’s P 591.<= span style=3D'mso-spacerun:yes'> Commonly used to include anyone associated the named defendant in reference to the matter before the court<= o:p>

·      EX PARTE – Done or made= at the instance and for the benefit of one party only, and without notice to, = or argument by, any person adversely interested; or argument by, any person adversely interested; of or relating to court action taken by one party wit= hout notice to the other for temporary or emergency relief. Black’s P 616

·      EX REL – [ex relatione “by or on the relation of”] On the relation or information of. • A suit ex rel. is typically brought by the government upon the application of a private party (called a relator= ) who is interested in the matter.

·      ET SEQ. – “et sequens” and the following one or ones” Black’s 592

·      ET UX (Et Uxor) –&n= bsp; And wife. This phrase = was formerly common in case names and legal documents (esp. abstracts of title) involving a husband and wife jointly. It usu. appears in its abbreviated form “Et Ux”= . Black’s P 593

·      IN RE – “in the matt= er of a judicial proceeding” Most often seen family courts with issues involving children. Generally= will indicate the service document is “In Re – Name of the childR= 21; Black’s P. 809

·      IN REM – “against a thing” Invol= ving or determining the status of a thing, and therefore the rights of persons generally with respect to that thing. Black’s P 809

NULLA BONA – [“= no goods”] A form of = return by a sheriff or constable upon an execution when the judgment debtor h= as no sizable property within the jurisdiction. Black’s P 1098 . Note this is a form of return= , therefore simply the words Nulla Bona= do not make the return complete.

·      PRO SE (Latin) - For self, on one’s own beh= alf; in person; one who does not retain a lawyer but, instead, appears on one’s own behalf in court.

PRIMA FACIE – Suffici= ent to establish a fact or raise a presumption unless disproved or rebutted &= lt;a prima facie showing> Black’s P1228

Unit Goal: 11.5. The student will= be able to describe how the jurisdictions of courts of this state are establis= hed.

11.5.1    Describe how the court jurisdiction= s in the state are established.

The constitution provides one court per county and Justice of The Peace Co= urts

The commissioner’s court is the constitutional court of the county w= ith the County Judges as the magistrate (nee= d not be an attorney)

One Jus= tice of the Peace court per precinct within each county (number varies from co= unty to county depending on the number of precinct and additional courts ha= ve been added by creating place 1 and 2 in the very populated counties)

All other courts are created by the legislature and their jurisdiction is defined in The Government Code in Chapter 25 and 26.

11.5.2 Identify general court jurisdictions.

<= /o:p>

Muni= cipal:= Class C misdemeanors, Health and Safety Issues (City Ordinances) Animal Cruelty and Truancy (District Juvenile Court must give Permission to he= ar truancy cases) Judge may be non attorney.

Just= ice of The Peace: Small Claims Court (Up to $10,000.00= ), Justice Court (Up to $10,000.00), Class C Misdemeanors, Truancy and Landlord Tenant suits. Judge may be non = attorney.

= Constitutional County Court: Civil jurisdiction up to $10,000= .00, non contested probate matters, Class C misdemeanor appeal from Municip= al and Justice of the Peace Courts. Judge may be non attorney and presides over commissioner’s court.

= Statutory County Court – Judge must be attorney

      &= nbsp;     1. County Courts At Law: May have Criminal & Civil jurisdiction:

        &= nbsp;           &nbs= p;   a. Criminal Jurisdiction is Class A & B misdemeanors

        &= nbsp;           &nbs= p;   b. Civil Jurisdictions up to $100.000.00

      &= nbsp;           &nbs= p;     c. May be established as appeal courts for class C misdemeanors

      &= nbsp;     2. Probate County Courts: Judge must be attorne= y

        &= nbsp;           &nbs= p;   a. Contested and non-contested probate matters

      &= nbsp;           &nbs= p;     b. Appointment of Guardians

Dist= rict Courts Jurisdiction: Judge must be attorney

      1. All felonies

      2. Civil $200.00 and greater

      3. Contested elections

      4. Appeals from commissioner’s courts

      5. Land Disputes

      6. Title to land

      7. Slander

      8. Probate Appeals

      9. Non-Criminal against Sheriff, attorneys and others

    10. Divorc= es

    11. Child Custody

    12. Child Support

    13. Protec= tive Orders

    14. Juvenile

Regi= on Appeal Courts: Judge must be attorney

      1. Criminal appeals=

      2. Civil Appeals

Cour= t of Criminal Appeals:= Judge must be attorney

1. Highest Appeal court for Criminal Offenses in the state

Supr= eme Court: Judge must be attorney

      1. Civil Appeals

      2. Juvenile Appeals<= /p>
      3. Establishes The Rules of Civil Proc= edure        =

Unit Goal: 11.6. The student will be able to describe civil action procedures and process.

11.7.1. Identify the process involved in a= civil suit.

Civil Suit=

Civil Wrong Occurs

Parties cannot reach settlement

Plainti= ff(s) are within the statute of limitations to commence a suit (TCPRC Sec. 16.003)=

1.&n= bsp;     Unwritten agreement of a personal injury...2 years to start action.

2.      By written agreement usually 4 years NOTE: The longer the period, the more difficult the case to prove.

Style or format is developed (TRCP Rule 99)

1.&n= bsp;     Plaintiff= (s) and Defendant(s) are identified.

2.&n= bsp;     Style can= have multiple plaintiffs and defendants.

3.      = Either side can be individuals, partner= ships, or corporations or DBA.<= /span>

Case is filed by the plaintiff or his attorney in= a court having jurisdiction over the suit.

Court issues a Citation (TRCP Rule 99)

      1. Purpose- establish courts jurisdic= tion and give direction to the defendant. Only the defendant questions jurisdiction of the court, the officer = does not.

    = 2. Accompanied by the plaintiff’= ;s petition—grounds for the suit and the relief being sought.

    = 3. Out of state Civil Court Orders= . Only citations may be served by persons authorized to serve civil process i= n Texas. Texas officers m= ay not serve judgment enforcement documents. These orders must be taken to a= Texas court of c= ompetent

jurisdiction and the court may issue an order to a Texas officer to= carry out the judgment of the out of state court. (TCPRC Chapter 35)

Other documents:

1.&n= bsp;     Subpoenas may be issued to bring witnesses before t= he court and or documents. Note: service of subpoenas for civil and criminal actions differs greatly. (TRCP Rule 176 civil, CCP §24.01 = criminal)

= 2.      Pre Judgment Writs may be issued at= the time of the filing also. They= may not be issued if no case has been filed.

11.7.= 2    List the persons authorized to serve process and their duties under the Texas Rules of Civil Procedure (TRCP 103/536).

Who may serve:

Sheriff, Constable, their Deputies, Servers Certified by the Supreme Court and any person over 18 (not a party to= the suit and has no interest in the outcome) by court order.

Documents that involve seizur= e of property or person or evictions may only be served by a Sheriff or Constable and their deputies. (TRCP 103 & 536).

Duties:

The officer must return a copy of the process served with detail of the delivery to the court. (TRCP 16,105.107.536a)

11.7.= 3    Identify the process for service of citations.

Citations may not be served on Sunday. (TRCP Rule 6)

Duty of officer or person receiving – (TRCP Rule 16. 105, = 107, 536a): Endorse th= e date and time received the document was received and shall execute and retu= rn them without delay. Serv= ice is not complete until the document is returned to the court. (Applies to criminal & ci= vil documents)

Methods of Service for Citations (TRCP Rule 106 County/District Courts) – (TRCP Rule 536 Justice of the Peace Courts)

      a. In person to the defendant

      b. By mail

      c. By alternate Service (TRCP 106b & 536c)

    = d. Publication—Publication good on Sunday (TRCP Rule 109 & Publicati= on return Rule 117)

4. The Cit= ation is delivered to the defendant either in person or by an alternate service method. The officer’s r= eturn must be completed and the return documents filed with the issuing court bef= ore the court may proceed to hear the case.   Rule 103 and 536 govern    who can serve documents. Rule 106 and 536 determine how ser= vice is perfected on the defendant when the service document is a citation. Rule 21a generally governs service= of writs.

5. The cou= rt conducts a hearing to settle all issues alleged in the application/petition. Either = party has 10 days to perfect an appeal of the trial courts ruling. (TRCP Rule 571)

6. If no appeal has been filed and the judgment has not been satisfied after 30 days from the date the judgment was granted the party who received the judgment may ask the court to issue judg= ment enforcement documents. (TRCP Rule 628)

Unit Goal: 11.8. The student will be able to descri= be Writs that are available before judgment, pre-judgment and their purpose.

11.8.1 Identify the Writs process available before judgment.

Pre Judgment Writs:

Are available after the su= it is filed and before a judgment has been rendered. Purpose to place property under the control of the court and protect the value of the property that may be used= to satisfy a judgment the court may issues in the future. There must be a suit filed before any of these orders may issue. (TRCP Part VI Rules Relating to Ancillary Proceedings)

Writs directing the office= r to seize property are generally served under TRCP 21a. The first duty of the officer is t= o levy on the property and then serve the defendant. The sheriff, constable or the certified server may serve a pre judgment writ that does not order the seiz= ure of property.

Liability Issue:

Peace officers do not have= a responsibility to go with the certified server to serve documents. A peace officers presence could add color of law to a situation and create liability for the officer and his department.

Methods of Service Pre Judgment Writs under ru= le 21a

    = 1. In person

    = 2. To the defendants authorized agent= or attorney

    = 3. By courier or certified or registe= red mail

      4. By telephonic document transfer

11.8.2 Identify the Pre-Judgment Writs.

An Ex-Parte hearing is held to determine the necessity= to issue the writ and sets any bonds required for issuance of the writ. The Plaintiff’s bond is made out to the defendant. The court sets the amo= unt of the replevy bond to allow the defendant to retain the property. The defendant’s replevy bond is made out to the plaintiff. If there is no replevy bond posted by the Plaintiff or the Defendant the officer retains custody of the property until the court orders it sold or released.

Temporary Restraining Order-stop or impose a duty= on someone (TRCP 680, TCPRC §85.001)

1.&n= bsp;     Civil TRO is enforced by Contempt of Court

2.&n= bsp;     Family Code 262.1015 provided for criminal penalty = when the      &nbs= p; TRO is issued to protect a child who has been a victim of sexual assault:

      a. Sequest= ration-Both parties claim ownership interest in property (TRCP 686, TCPRC §62.001)=

      b. Garnish= ment-Property is in the possession of a third party (TRCP 657, TCPRC Ch. 63)=

      c. Attachm= ent-Place non-exempt property under the control of the court (TCPRC Ch. 61)=

    &= nbsp;       1. Real property- (land/real estate) = paper levy

    &= nbsp;       2. Personal property-Levy made by tak= ing property into the officer’s Custody

    &= nbsp;       3. Person (Civil arrest warrant)-Pers= on is taken into custody and taken before the court. May or may not allow the person to= be placed in jail. Also issued to take a child into custody and have the child brought before the court or instruct the officer to turn the child over to a custod= ial parent or court appointed guardian. (May also be Post judgment)

       d. Distress warrant-Landlord lien enforcement for Commercial & Agricultura= l tenants when back rent is due. The di= stress warrant may only be issued by a Justice of The Peace Court regardless of the dollar value of the back rent. (TRCP Rule 610, TCPRC Ch.54)

11.8.3 Identify Judgm= ent Enforcement Documents and their purpose.

Execution (TRCP Rule 621 thru 656):=

&n= bsp;         a. Served by a Sheriff or Constable

            = b. Commands the officer to seize and sell at public auction any non-exempt property found within the officer’s county satisfy a dollar judgment:=

            =     1. Exempt property- for a family $60,= 000.00, for a single adult $30,000.00 from the exempt property list in §43.002 of the Texas Prope= rty Code §42.021 & .= 022 added addition exempt Property. §42.005 void the exempt li= st when the judgment for the enforcement of a child support lien.

Garnishment (TRCP Rule 657 thru 679):

    = a. Served by a Sheriff, Constable or certified server

            b. Served o= n the Garnishee (person or institution) in possession of property belonging to th= e defendant.

            c. May be s= erved on an employer for enforcing the garnishment of wages for child support. There is no other garnishment of w= ages that is permitted by Texas Courts.

Turnover Order (TCPRC Ch 31):

            a. Served by a Sheriff= or Constable

            b. Is= sued to aid in the enforcement of a judgment.

            c. Property will be tu= rned over to the officer or a receiver, but not to the plaintiff.

Writ of Possession (non eviction) (TRCP Rule 310, 632)

            a. Se= rved by a Sheriff or Constable

            b. Directs = the defendant to deliver possession of certain property to the officer, who the=

                 delivers the property to the person the court has directed.

Order of Sale (TRCP 309, TCRPC §34.047, §34.064):

            a. Ex= ecuted by a Sheriff or Constable

            = b. Orders the officer to take possession of real or personal property and to s= ell it.

Attachment (Person) a post judgment writ issued for a person only. (CCP §23.11):

            a. Se= rved by Sheriff or Constable

            b. To take the defendant into custody and take him before the court to show ca= use why he should not be held in contempt for violation or not complying with the c= ourts judgment or judgment enforcement documents. It may also permit the officer to = place the defendant in jail until the court is in session.

  &nb= sp;         c. To take a child from a parent or other custodial person. The order may instruct the officer= to turn the child over to another person or to bring the child to the court

Divorce Degree — All divorce degrees have the following statement in them that give an officer limited authority to ask for the return of childr= en when the person granted custody wants them returned and the other party has refused to do so.

“Notice to any peace officer of the State of Texas= : You may use reasonable efforts to enforce the terms of child custody specif= ied in this order. A peace office= r who relies on the terms of a court order and the officer’s agency are entitled to the applicable immunity against any claim, civil or otherwise, regarding the officer’s good faith acts performed in the scope of the officer’s duties in enforcing the terms of the order that relate to c= hild custody. Any person who knowi= ngly presents for enforcement an order that is invalid or no longer in effect commits an offense that may be punishable by confinement in jail for as lon= g as two years and a fine of as much as $10,000.”

   &nb= sp; a. Allows the officer to use reasonable effort (not reasonable force= ) to enforce terms of the specified order. Basically, this can be to ask for compliance with the order. There is no criminal violation for non-compliance.

   &nb= sp; b. It gives the officer and his agency some immunity for a civil cla= im. The officer must keep in mind the limitation placed on him by “reasonable effort”. Anything beyon= d reasonable effort may subject the officer and agency to some liability.

   &nb= sp; c. A criminal penalty is attached to the person, who knowingly prese= nts an invalid or no longer in effect order to the officer.

11.8.4 Identify the civil and criminal responsibility of the courts in Landlord Tenant Relations

Land= lord Lien for Residential (TX Property Code §54.041-54.044):

        &= nbsp; a. The residential lien is only enforce= able if there is a written lease and the landlord lien enforcement is printed in bold print or under lined.

            b. The property code s= et out exemptions for tenant’s personal property. This property may not be taken. = Taking of these items may constitute a criminal offense.

            c. Th= e code provides that if a landlord’s lease provisions do not comply with the property code that section of the lease is void.

Evic= tion (TPC Ch 24):

            a. Landlord must give tenant notice before an eviction is filed

                 1. Forcible Entry and Detainer, Forcib= le Detainer defined the grounds for an Eviction (TPC 24.001, 24.002)

                 2. One the suit is filed it become an Eviction Suit (TPC 24.005)

            b. The Eviction Citations issues

        =      1. Service is under TRCP 742 – Service in person to the defendant or any one over the age of 16 at the add= ress of the eviction.

        =      2. Alternate service is under TRCP 742a-Delivery to the premises and by mailing a copy to that same address.

        =      3. Hearing is no less than six (6) an= d no more than ten (10) days from the date of service.

        =      4. Either party had 5 days to appeal t= he judgment

        =      5. If the landlord prevailed and the defendant has not moved on the 6^th day a Writ of Possession may = be issued to the Sheriff or Constable to remove the Tenant and his belonging f= rom the rental unit.

        =      6. The tenant’s property may be = moved to the curb or stored. The of= ficer has no liability toward the property moved to the curb once the officer lea= ves the location.

Lock= outs (TPC Ch 92):

            a. Th= e tenant must be behind in the rent and the written lease must have the provision fo= r lockouts in the lease.

            b. La= ndlord must give written notice before lockout.

            c. Residential tenant must be given the new key regardless of whether the back rent is paid or not. This key= must be available 24 hours a day.

            d. Commercial tenant m= ust pay the back rent before they receive the key and only during normal busine= ss hours.

            e. Tenant may file a civil suit for damages caused by an illegal lockout.=

   &nb= sp;       f. Tenant may regain entry under a Writ of Reentry

      =         1. Complaint is filed in the JP preci= nct where the property is located.

                2. If judge rules the lockout was ill= egal the court may issue a Writ of Reentry directing the landlord to let the ten= ant back in. If the landlord fail= s to obey the order he may be held in contempt of court and the Sheriff or Const= able may use reasonable force to put the tenant back into the rental unit.