CIVIL PRACTICE & REMEDIES CODE
TITLE 3. EXTRAORDINARY REMEDIES
CHAPTER 61. ATTACHMENT
SUBCHAPTER A. AVAILABILITY OF REMEDY
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER B. ISSUANCE
§ 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, § 1, eff. Sept. 1, 1985.
§ 61.022. AFFIDAVIT. (a) To apply for a writ of
attachment, a plaintiff or his 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.
(b) The affidavit shall be filed with the papers of the
case.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER C. LEVY
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 7.003, eff. Sept. 1,
1999.
SUBCHAPTER D. LIEN
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER E. WORKS OF FINE ART
§ 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, § 1, eff. Aug. 30, 1999.
§ 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, § 1, eff. Aug. 30, 1999.
