2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 3. EXTRAORDINARY REMEDIES
CHAPTER 61. ATTACHMENT  

CIVIL PRACTICE AND REMEDIES CODE

TITLE 3. EXTRAORDINARY REMEDIES

CHAPTER 61. ATTACHMENT

SUBCHAPTER A. AVAILABILITY OF REMEDY

Sec. 61.001. GENERAL GROUNDS. A writ of original attachment is

available to a plaintiff in a suit if:

(1) the defendant is justly indebted to the plaintiff;

(2) the attachment is not sought for the purpose of injuring or

harassing the defendant;

(3) the plaintiff will probably lose his debt unless the writ of

attachment is issued; and

(4) specific grounds for the writ exist under Section 61.002.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.002. SPECIFIC GROUNDS. Attachment is available if:

(1) the defendant is not a resident of this state or is a

foreign corporation or is acting as such;

(2) the defendant is about to move from this state permanently

and has refused to pay or secure the debt due the plaintiff;

(3) the defendant is in hiding so that ordinary process of law

cannot be served on him;

(4) the defendant has hidden or is about to hide his property

for the purpose of defrauding his creditors;

(5) the defendant is about to remove his property from this

state without leaving an amount sufficient to pay his debts;

(6) the defendant is about to remove all or part of his property

from the county in which the suit is brought with the intent to

defraud his creditors;

(7) the defendant has disposed of or is about to dispose of all

or part of his property with the intent to defraud his creditors;

(8) the defendant is about to convert all or part of his

property into money for the purpose of placing it beyond the

reach of his creditors; or

(9) the defendant owes the plaintiff for property obtained by

the defendant under false pretenses.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.0021. GROUNDS FOR ATTACHMENT IN SUIT FOR SEXUAL ASSAULT.

(a) Notwithstanding any other provision of this code,

attachment is available to a plaintiff who:

(1) has general grounds for issuance under Sections 61.001(2)

and (3); and

(2) institutes a suit for personal injury arising as a result of

conduct that violates:

(A) Section 22.011(a)(2), Penal Code (sexual assault of a

child);

(B) Section 22.021(a)(1)(B), Penal Code (aggravated sexual

assault of a child);

(C) Section 21.02, Penal Code (continuous sexual abuse of young

child or children); or

(D) Section 21.11, Penal Code (indecency with a child).

(b) A court may issue a writ of attachment in a suit described

by Subsection (a) in an amount the court determines to be

appropriate to provide for the counseling and medical needs of

the plaintiff.

Added by Acts 2009, 81st Leg., R.S., Ch.

946, Sec. 1, eff. September 1, 2009.

Sec. 61.003. PENDING SUIT REQUIRED. A writ of attachment may be

issued in a proper case at the initiation of a suit or at any

time during the progress of a suit, but may not be issued before

a suit has been instituted.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.004. AVAILABLE FOR DEBT NOT DUE. A writ of attachment

may be issued even though the plaintiff's debt or demand is not

due. The proceedings relating to the writ shall be as in other

cases, except that final judgment may not be rendered against the

defendant until the debt or demand becomes due.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.005. CERTAIN TORTS AND UNLIQUIDATED DEMANDS. Nothing in

this chapter prevents issuance of a writ of attachment in a suit

founded in tort or on an unliquidated demand against an

individual, partnership, association, or corporation on whom

personal service cannot be obtained in this state.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER B. ISSUANCE

Sec. 61.021. WHO MAY ISSUE. The judge or clerk of a district or

county court or a justice of the peace may issue a writ of

original attachment returnable to his court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.022. AFFIDAVIT. (a) Except as provided by Subsection

(a-1), to apply for a writ of attachment, a plaintiff or the

plaintiff's agent or attorney must file with the court an

affidavit that states:

(1) general grounds for issuance under Sections 61.001(1), (2),

and (3);

(2) the amount of the demand; and

(3) specific grounds for issuance under Section 61.002.

(a-1) To apply for a writ of attachment under Section 61.0021, a

plaintiff or the plaintiff's agent or attorney must file with the

court an affidavit that states:

(1) general grounds for issuance under Sections 61.001(2) and

(3);

(2) specific grounds for issuance under Section 61.0021(a); and

(3) the amount of the demand based on the estimated cost of

counseling and medical needs of the plaintiff.

(b) The affidavit shall be filed with the papers of the case.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

946, Sec. 2, eff. September 1, 2009.

Sec. 61.023. BOND. (a) Before a writ of attachment may be

issued, the plaintiff must execute a bond that:

(1) has two or more good and sufficient sureties;

(2) is payable to the defendant;

(3) is in an amount fixed by the judge or justice issuing the

writ; and

(4) is conditioned on the plaintiff prosecuting his suit to

effect and paying all damages and costs adjudged against him for

wrongful attachment.

(b) The plaintiff shall deliver the bond to the officer issuing

the writ for that officer's approval. The bond shall be filed

with the papers of the case.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER C. LEVY

Sec. 61.041. SUBJECT PROPERTY. A writ of attachment may be

levied only on property that by law is subject to levy under a

writ of execution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.042. ATTACHMENT OF PERSONALTY. The officer attaching

personal property shall retain possession until final judgment

unless the property is:

(1) replevied;

(2) sold as provided by law; or

(3) claimed by a third party who posts bond and tries his right

to the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.043. ATTACHMENT OF REALTY. (a) To attach real

property, the officer levying the writ shall immediately file a

copy of the writ and the applicable part of the return with the

county clerk of each county in which the property is located.

(b) If the writ of attachment is quashed or vacated, the court

that issued the writ shall send a certified copy of the order to

the county clerk of each county in which the property is located.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.044. CLAIM ON ATTACHED PERSONALTY BY THIRD PARTY. A

person other than the defendant may claim attached personal

property by making an affidavit and giving bond in the manner

provided by law for trial of right of property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.045. ATTACHMENT OF PERSONALTY HELD BY FINANCIAL

INSTITUTION. Service of a writ of attachment on a financial

institution relating to personal property held by the financial

institution in the name of or on behalf of a customer of the

financial institution is governed by Section 59.008, Finance

Code.

Added by Acts 1999, 76th Leg., ch. 344, Sec. 7.003, eff. Sept. 1,

1999.

SUBCHAPTER D. LIEN

Sec. 61.061. ATTACHMENT LIEN. Unless quashed or vacated, an

executed writ of attachment creates a lien from the date of levy

on the real property attached, on the personal property held by

the attaching officer, and on the proceeds of any attached

personal property that may have been sold.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.062. JUDGMENT AND FORECLOSURE. (a) If the plaintiff

recovers in the suit, the attachment lien is foreclosed as in the

case of other liens. The court shall direct proceeds from

personal property previously sold to be applied to the

satisfaction of the judgment and the sale of personal property

remaining in the hands of the officer and of the real property

levied on to satisfy the judgment.

(b) If the writ of attachment on real property was issued from a

county or justice court, the court is not required to enter an

order or decree foreclosing the lien, but to preserve the lien

the judgment must briefly recite the issuance and levy of the

writ. The land may be sold under execution after judgment, and

the sale vests in the purchaser all of the estate of the

defendant in the land at the time of the levy.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 61.063. JUDGMENT ON REPLEVIED PROPERTY. A judgment against

a defendant who has replevied attached personal property shall be

against the defendant and his sureties on the replevy bond for

the amount of the judgment plus interest and costs or for an

amount equal to the value of the replevied property plus

interest, according to the terms of the replevy bond.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

SUBCHAPTER E. WORKS OF FINE ART

Sec. 61.081. EXEMPTION WHEN EN ROUTE TO OR IN AN EXHIBITION.

(a) Subject to the limitations of this section, a court may not

issue and a person may not serve any process of attachment,

execution, sequestration, replevin, or distress or of any kind of

seizure, levy, or sale on a work of fine art while it is:

(1) en route to an exhibition; or

(2) in the possession of the exhibitor or on display as part of

the exhibition.

(b) The restriction on the issuance and service of process in

Subsection (a) applies only for a period that:

(1) begins on the date that the work of fine art is en route to

an exhibition; and

(2) ends on the earlier of the following dates:

(A) six months after the date that the work of fine art is en

route to the exhibition; or

(B) the date that the exhibition ends.

(c) Subsection (a) does not apply to a work of fine art if, at

any other time, issuance and service of process in relation to

the work has been restricted as provided by Subsection (a).

(d) Subsection (a) does not apply if theft of the work of art

from its owner is alleged and found proven by the court.

(e) A court shall, in issuing service of process described by

Subsection (a), require that the person serving the process give

notice to the exhibitor not less than seven days before the date

the period under Subsection (b) ends of the person's intent to

serve process.

(f) In this section, "exhibition" means an exhibition:

(1) held under the auspices or supervision of:

(A) an organization exempt from federal income tax under Section

501(a), Internal Revenue Code of 1986, as amended, by being

listed as an exempt organization in Section 501(c)(3) of the

code; or

(B) a public or private institution of higher education;

(2) held for a cultural, educational, or charitable purpose; and

(3) not held for the profit of the exhibitor.

Added by Acts 1999, 76th Leg., ch. 1043, Sec. 1, eff. Aug. 30,

1999.

Sec. 61.082. HANDLING AND TRANSPORTATION. A court may not issue

any process of attachment, execution, sequestration, replevin, or

distress or of any kind of seizure, levy, or sale on a work of

fine art unless the court requires, as part of the order

authorizing the process, that the work of fine art is handled and

transported in a manner that complies with the accepted standards

of the artistic community for works of fine art, including, if

appropriate, measures relating to the maintenance of proper

environmental conditions, proper maintenance, security, and

insurance coverage.

Added by Acts 1999, 76th Leg., ch. 1043, Sec. 1, eff. Aug. 30,

1999.