It is an unfortunate fact that a vast number of attorneys throughout the state consider 663 to be the rule governing the service of the WOG. Our clear authority to serve it under 103 will continue to be challenged or ignored by many as long as 663 remains in its present form. To avoid conflict, many plaintiff’s attorneys will continue to have it served [albeit untimely] by constable. In their mind [if it is not settled law] one should play it safe- it doesn’t make economic sense to do otherwise. At present, many of us are losing a great deal of business and don’t even know it- it’s happening in the background. For the uninformed doubters, let’s get it settled, published, and widely disseminated. Once again, who’s with me?
Perfect Process Blog
Posts Tagged ‘marc jaco’
A Final Thought on the WOG
Monday, August 9th, 2010More on the Writ of Garnishment
Sunday, August 1st, 2010On February 12, 2008, the Supreme Court issued an Order Appointing Ancillary Task Force– ostensibly to clarify conflicting rules. The order makes specific reference to Rule 103, and includes a request that a report and recommendations be provided to the court no later than October 31, 2008. The report and recommendations have not been forthcoming. Frankly, I am confused as to why a “task force” was even necessary.
It is instructive to note that the Code Construction Act applies to the Texas Rules of Civil Procedure. In re. Walkup, 122 S.W.3d 215, 217. Tex. Gov’t Code § 311.026 (b) states:
“If the conflict between the general provision and the special provision or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”
The amended Rule 103 is the later enactment, and the manifest intention of it is to allow private process servers to serve a wide variety of process including writs. The code is precisely applicable to the matter before the task force, and it is my hope that it be considered in any recommendation.
I strongly urge all interested parties to contact the chair and other members of the task force, and encourage them to recommend to the court language clarifying 103 to mean what it says, or [better] that 663 includes persons authorized under 103. I consider the matter urgent, and until it is laid to rest we will continue to be challenged by garnishees or debtors, and passed over by the uninformed resulting in needless economic loss.
The Lone Star Writ of Garnishment
Friday, July 23rd, 2010Even today, some Texas lawyers-particularly those representing garnishees-take the position that privates are not authorized to serve the writ of garnishment. Given the fact that my service of the writ has been challenged twice in the last two years, one could reasonably assume it happens regularly throughout the state. Most in this camp cite Rule 663 TRCP (October 1940) which states as follows:
The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.
For starters, it appears to me that Rule 663 does not expressly prohibit service by a private process server- none existed at that time. In my view Rule 103 TRCP amended and effective 2005, trumps 663. In support, the rule to wit:
Process-including citation and other notices, writs, orders, and other papers issued by the court-may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order.
Obviously, the writ of garnishment is not one that requires the actual taking of possession of a person, property or thing, nor one requiring that an enforcement action be physically enforced by the person delivering the process. As stated even in [the dated] 663, it’s just another citation.
As for the outcome of my cases, in one instance the 116th District Court of Dallas County upheld the service denying the garnishee’s motion to dissolve (Dallas City Bank vs. Lori Gerard, et al) based on case law. In the other, the plaintiff’s attorney elected to have the writ re-served by constable rather than incur the additional expense to defend. In either case, my authority to serve the writ should never have been in question.
The Bottom Line: Rule 663 TRCP adopted in 1940 does not govern what a private server can serve- it is applicable only to sheriffs and constables. The only rules governing what a private can serve are Rules 103 TRCP adopted in 1987, and 536 TRCP adopted in 1990. Both were amended in 2005 to permit service of virtually all writs by any authorized person.
