2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 3. EXTRAORDINARY REMEDIES
CHAPTER 62. SEQUESTRATION  

CIVIL PRACTICE AND REMEDIES CODE

TITLE 3. EXTRAORDINARY REMEDIES

CHAPTER 62. SEQUESTRATION

SUBCHAPTER A. AVAILABILITY OF REMEDY

Sec. 62.001. GROUNDS. A writ of sequestration is available to a

plaintiff in a suit if:

(1) the suit is for title or possession of personal property or

fixtures or for foreclosure or enforcement of a mortgage, lien,

or security interest on personal property or fixtures and a

reasonable conclusion may be drawn that there is immediate danger

that the defendant or the party in possession of the property

will conceal, dispose of, ill-treat, waste, or destroy the

property or remove it from the county during the suit;

(2) the suit is for title or possession of real property or for

foreclosure or enforcement of a mortgage or lien on real property

and a reasonable conclusion may be drawn that there is immediate

danger that the defendant or the party in possession of the

property will use his possession to injure or ill-treat the

property or waste or convert to his own use the timber, rents,

fruits, or revenue of the property;

(3) the suit is for the title or possession of property from

which the plaintiff has been ejected by force or violence; or

(4) the suit is to try the title to real property, to remove a

cloud from the title of real property, to foreclose a lien on

real property, or to partition real property and the plaintiff

makes an oath that one or more of the defendants is a nonresident

of this state.

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

Sec. 62.002. PENDING SUIT REQUIRED. A writ of sequestration may

be issued at the initiation of a suit or at any time before final

judgment.

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

Sec. 62.003. AVAILABLE FOR CLAIM NOT DUE. A writ of

sequestration may be issued for personal property under a

mortgage or a lien even though the right of action on the

mortgage or lien has not accrued. 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 right of action

has accrued.

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

SUBCHAPTER B. ISSUANCE

Sec. 62.021. WHO MAY ISSUE. A district or county court judge or

a justice of the peace may issue writs of sequestration

returnable to his court.

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

Sec. 62.022. APPLICATION. The application for a writ of

sequestration must be made under oath and must set forth:

(1) the specific facts stating the nature of the plaintiff's

claim;

(2) the amount in controversy, if any; and

(3) the facts justifying issuance of the writ.

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

Sec. 62.023. REQUIRED STATEMENT OF RIGHTS. (a) A writ of

sequestration must prominently display the following statement on

the face of the writ:

YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A

REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF

THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS

WRIT.

(b) The statement must be printed in 10-point type and in a

manner intended to advise a reasonably attentive person of its

contents.

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

SUBCHAPTER C. DISSOLUTION AND REPLEVY

Sec. 62.041. MOTION FOR DISSOLUTION; STAY. (a) The defendant

may seek dissolution of an issued writ of sequestration by filing

a written motion with the court.

(b) The right to seek dissolution is cumulative of the right of

replevy.

(c) The filing of a motion to dissolve stays proceedings under

the writ until the issue is determined.

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

Sec. 62.042. HEARING ON MOTION. Unless the parties agree to an

extension, the court shall conduct a hearing on the motion and

determine the issue not later than the 10th day after the motion

is filed.

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

Sec. 62.043. DISSOLUTION. (a) Following the hearing, the writ

must be dissolved unless the party who secured its issuance

proves the specific facts alleged and the grounds relied on for

issuance.

(b) If the writ is dissolved, the action proceeds as if the writ

had not been issued.

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

Sec. 62.044. COMPULSORY COUNTERCLAIM FOR WRONGFUL SEQUESTRATION.

(a) If a writ is dissolved, any action for damages for wrongful

sequestration must be brought as a compulsory counterclaim.

(b) In addition to damages, the party who sought dissolution of

the writ may recover reasonable attorney's fees incurred in

dissolution of the writ.

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

Sec. 62.045. WRONGFUL SEQUESTRATION OF CONSUMER GOODS. (a) If

a writ that sought to sequester consumer goods is dissolved, the

defendant or party in possession of the goods is entitled to

reasonable attorney's fees and to damages equal to the greater

of:

(1) $100;

(2) the finance charge contracted for; or

(3) actual damages.

(b) Damages may not be awarded for the failure of the plaintiff

to prove by a preponderance of the evidence the specific facts

alleged if the failure is the result of a bona fide error. For a

bona fide error to be available as a defense, the plaintiff must

prove the use of reasonable procedures to avoid the error.

(c) In this section, "consumer goods" has the meaning assigned

by the Business & Commerce Code.

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

Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.11, eff. Sept.

1, 1987.

Sec. 62.046. LIABILITY FOR FRUIT OF REPLEVIED PROPERTY. (a) In

a suit for enforcement of a mortgage or lien on property, a

defendant who replevies the property is not required to account

for the fruits, hire, revenue, or rent of the property.

(b) This section does not apply to a plaintiff who replevies the

property.

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

SUBCHAPTER D. CARE AND MANAGEMENT OF SEQUESTERED PROPERTY

Sec. 62.061. OFFICER'S LIABILITY AND DUTY OF CARE. (a) An

officer who executes a writ of sequestration shall care for and

manage in a prudent manner the sequestered property he retains in

custody.

(b) If the officer entrusts sequestered property to another

person, the officer is responsible for the acts of that person

relating to the property.

(c) The officer is liable for injuries to the sequestered

property resulting from his neglect or mismanagement or from the

neglect or mismanagement of a person to whom he entrusts the

property.

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

Sec. 62.062. COMPENSATION OF OFFICER. (a) An officer who

retains custody of sequestered property is entitled to just

compensation and reasonable charges to be determined by the court

that issued the writ.

(b) The officer's compensation and charges shall be taxed and

collected as a cost of suit.

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

Sec. 62.063. INDEMNIFICATION OF OFFICER FOR MONEY SPENT. If an

officer is required to expend money in the security, management,

or care of sequestered property, he may retain possession of the

property until the money is repaid by the party seeking to

replevy the property or by that party's agent or attorney.

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