By Andrew Wipke
Assistant County Attorney in Brazos County, &
Jennifer Fox
Assistant County Attorney in Fort Bend County
If human resources often calls near the end of a day, then a constable’s office typically calls early in the morning. These calls frequently concern various writs, which include writs of garnishment, execution, possession, attachment, and sequestration.
This article focuses on one of those writs: writs of execution. It aims to provide a brief overview of the process concerning writs of execution and items to note when responding to inquiries from law enforcement personnel. Property wrongly seized or sold may leave a county in a precarious situation and open the door to liability. Further, when a constable contacts the prosecutor’s office, he is often seeking a quick response because a deputy is in the field executing the writ.
Execution overview
In Shakespeare’s The Merchant of Venice, Antonio secures a loan from Shylock and offers a pound of his own flesh as collateral. Upon Antonio’s default, Shylock sues to enforce the bond and collect his literal pound of flesh as payment. Execution occurs when a lawsuit is over and the winning party, like Shylock, seeks to enforce the court’s judgment and collect its proverbial pound of flesh. To execute upon a judgment, the successful party or their attorney may request a writ of execution be issued.[1] A writ of execution commands a sheriff or constable to seize “property of the defendant found within [the] county not exempt from execution,” and then sell the property to apply the proceeds to the underlying debt.[2] The procedures for securing and executing a writ of execution are controlled by Texas Rules of Civil Procedure 621 through 656.
Abstract of judgment not required
There is no requirement for a judgment creditor to obtain an abstract of judgment[3] before a writ of execution is issued.[4] The abstract of judgment “is not necessary to give the [deputy] authority to act”;[5] rather, a writ of execution authorizes the officer to seize property, and the levy (the legally sanctioned seizure and sale of property) carried out in the process creates the execution lien. But a recorded abstract of judgment will help ensure a judgment creditor’s claim has priority over subsequent creditors.[6]
Issuance and stay of the writ
A writ of execution is issued at the request of the prevailing party.[7] It must describe the judgment, identify the court and date on which the judgment was rendered, and list the parties “in whose favor and against whom the judgment was rendered.”[8] Further, the writ must require the law enforcement officer to return the writ within 30, 60, or 90 days as stipulated by the plaintiff or his attorney.
When the writ of execution is delivered to law enforcement personnel, the deputy should proceed to levy without delay upon the defendant’s nonexempt property[9] in the county, unless the deputy is otherwise directed by the plaintiff, his agent, or his attorney.[10] “Nonexempt property” is any property not protected from attachment, execution, or seizure under the Texas Constitution or other statutory exemption laws, which may be liquidated to satisfy a creditor’s claims. The timing of the writ can be a factor, as further referenced below.
The judgment creditor, not the deputy, is responsible for proving that a writ of execution is issued within its statutory period[11] and for showing “not only that the execution was clerically prepared by the clerk but also that delivery was made to the proper officer.”[12]
The writ is generally issued 30 days after a final judgment.[13] If a motion for new trial is filed, then the writ will not be issued until 30 days after the motion is overruled.[14] However, a writ may issue before the expiration of the 30-day period if the judgment creditor or his representative files an affidavit stating that the defendant is about to remove property subject to execution or is seeking to transfer or hide property to defraud his creditors.[15] Please note that even after a writ is issued, enforcement may be stayed if the defendant properly files a supersedeas bond.[16]
Additionally, a judgment becomes dormant if a writ of execution is not issued within 10 years after the judgment is rendered.[17] If a writ of execution is timely issued within that period, the judgment remains enforceable. If the judgment remains uncollected, a second writ of execution may be issued at any time within 10 years after the issuance of the first writ.[18]
If there are any questions concerning the writ, including the procedural status of the underlying case, then the judgment creditor should be contacted. Alternatively, you may need to access your county’s case management software to verify information about the writ.
Occasionally, a deputy receives multiple writs from different judgment creditors to levy on property from the same judgment debtor. This situation is governed by Texas Rules of Civil Procedure 636, which requires the deputy to note “the exact hour and day when he received” each writ and number the writs in the order received. This requirement establishes a clear priority among competing writs based on the time of receipt. If the deputy does not properly record the writs as required, then he and his sureties “are liable to the plaintiff in execution,” (i.e., the judgment creditor) for the plaintiff’s actual damages resulting from the deputy’s failure to endorse the writ.[19]
If the judgment creditor holding the first writ postpones the levy for some reason (e.g., payment negotiations), a judgment creditor, which holds the second writ, may direct execution of the levy for the second writ. But any proceeds from the sale must first be applied to the original writ.[20]
Bankruptcy
A writ of execution may not be enforced if a bankruptcy petition is filed; such a filing triggers an automatic stay, immediately halting most collection activity, including, in part:
1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; and
2) the enforcement against the debtor or against property of the estate of a judgment obtained before the commencement of the case under this title.[21]
If a bankruptcy petition has been filed, then the judgment creditor will need to seek relief from the bankruptcy court before executing the writ. Bankruptcy courts may find county law enforcement personnel to be liable for punitive damages, court costs, and attorney fees, and not entitled to qualified immunity for willfully violating the bankruptcy stay.[22] If a bankruptcy petition or case is encountered, proceed cautiously.
Property to levy and exempt property
The debtor has the right to designate which property the deputy may levy. If additional property is needed to satisfy the execution and costs of sale, the defendant is required to designate additional property. If he doesn’t, the deputy is required to levy “upon any property of the defendant subject to execution.”[23]
A deputy’s failure to permit the debtor to designate property which may be levied upon is an irregularity, or procedural mistake, in the execution process.[24] An irregularity, by itself, will not invalidate an execution sale.[25] However, irregularities in the sale, coupled with a grossly inadequate sale price, can open the open the door for a court to quash or set aside a levy.[26] Accordingly, deputies should allow the debtor an opportunity to designate property whenever practicable to reduce the risk of challenge.
The debtor’s property may be levied if it is not otherwise exempted under law.[27] Various types of personal property, specified by statute, are exempt from execution up to an aggregate fair market value of $100,000 for a family and $50,000 for a single adult.[28] Another common exemption is a debtor’s homestead. Generally, a homestead is not subject to execution,[29] though one may execute on a homestead concerning debts for purchase money, taxes, and work and materials regarding improvements on the homestead.[30]
Given the protections for homestead property, if a deputy is directed to levy on real property, he should ask the judgment creditor whether the debtor has claimed a homestead exemption or review the real property records to ascertain whether such an exemption applies.[31] Further, a constable may be found liable for failing to execute a writ, even if the constable had a mistaken belief that a homestead exemption was otherwise applicable.[32]
Additionally, please note a party may not have more than one homestead at the same time.[33] If this occurs, the judgment creditor may need to seek court involvement to force the judgment debtor to properly designate his homestead.[34] Further, if the judgment debtor is married and only one spouse is liable for the debt, then the separate property of the non-judgment debtor spouse may not be utilized to satisfy the underlying debt or judgment.[35]
Occasionally, writs of execution issue against property to collect unpaid homeowner’s association fees and assessments. In this situation, it is possible for the property to be foreclosed on without violating any homestead rights.[36] In other words, the existence of a homestead does not necessarily prevent foreclosure. Pre-existing rights or any encumbrances, such as a restrictive covenant,[37] are not impacted by a subsequent
homestead exemption claim.[38] If the lien concerning the homeowners association’s fees attached before the homestead right was claimed and the lien runs with the land,[39] then the lien may be enforced against the homestead.[40]
Generally to levy upon real property, the deputy is not required to enter the property; rather, it is sufficient for the deputy to indorse the levy on the writ. With respect to personal property, the method of levy depends on the debtor’s right of possession. If the judgment debtor has the right to possess the property, the deputy completes the levy by taking possession of the property. However, if the judgment debtor merely has an interest in the property but lacks the right of possession, then the levy is made by giving notice “to the person who is entitled to the possession.”[41]
If a levy is against bulky property, “which is so cumbersome that it may not be moved except at large expense and effort,” it is acceptable for the deputy to enter the premises, identify the property, “[assert] dominion over it and [forbid] its removal by the person against whom the writ has been issued.”[42] In practice, this may be facilitated by securing the property in place with locks and/or attaching labels to the property which advise that its removal is prohibited.
If a levy is made upon shares of stock for which a certificate is available, then the deputy is required to seize and take possession of the stock certificate.[43]
Jurisdiction questions
Occasionally, questions arise when a deputy receives a writ to execute on property not located in his precinct. The deputy may transfer the writ to another law enforcement agency that is authorized to perform writs of execution in the county.[44] Also, a deputy may execute on real property that is partially located in his county and a contiguous county.[45] If this situation occurs, it is advisable for the deputy to communicate with the neighboring sheriff’s office or constables’ offices on how best to proceed and to ensure diligence in executing the writ. A memorandum of understanding between law enforcement agencies concerning these situations can be useful.
Execution sale
Before real property may be sold, the time and place of the sale must be published along with a description of the property.[46] The sale must be noticed in a newspaper in the county, and notice must be published at least “once a week for three consecutive weeks.”[47] A deputy is required to provide the judgment debtor or his attorney notice of the sale, either in person or by mail.
When real property is seized, it is generally sold at the “courthouse door” via public auction[48] unless the court orders the sale to occur on the real property.[49] “Compliance with the notice requirements for execution … is a prerequisite to the right of the trustee or [deputy] to make the sale.”[50] However, if the sale occurs at a different location, the sale is void and no title is passed,[51] though the person seeking to nullify a sale because it took place at an improper venue bears the burden of proving that fact.[52]
It is not required to post notice of the sale of personal property in the newspaper.[53] The notice needs to be posted only at the courthouse door and at the location where the sale will take place.
Once again, a writ of execution is made returnable either 30, 60, or 90 days from the date of the writ is issued. The sale of real estate must occur before the date the writ is returnable.[54] If a sale occurs after the writ is returnable, then the sale is void and no title is passed.[55] Sometimes despite the best efforts of the deputy to sell the property, additional time may be needed due to publication errors or other unforeseen circumstances. When a sale cannot be completed within the time allowed under the original writ, a writ of venditioni exponas may be sought to authorize the sale of the seized property under the writ of execution.[56]
The failure to comply as to when the sale will occur will also cause the sale to be void.[57] But if the sale was noticed to occur at a certain hour, then the sale may still take place at any time within the hour.[58] If a sale happens on a legal holiday, the sale is still valid.[59]
Liability, pitfalls, and challenges
Generally, if a constable acts in good faith when executing a writ, he will not be liable for damages concerning the underling writ.[60] Section 7.003(c) of the Texas Civil Practice and Remedies Code defines good faith as whether “a reasonably prudent officer, under the same or similar circumstances, could have believed that the officer’s conduct was justified based on the information the officer possessed when the conduct occurred.” If the constable does not act in good faith, then the constable is not entitled to this immunity.
While good faith may shield a constable from liability when executing a writ, a constable’s failure or refusal to execute a writ may expose the constable to liability. An aggrieved party may seek to hold the constable in contempt as provided by §86.024 of the Local Government Code or file a lawsuit pursuant to Chapter 34 of the Civil Practice and Remedies Code. Examples of such claims include property that was lost or damaged due to the negligence of the constable, failure to properly endorse a writ, and the failure to levy or sell property.
Conclusion
Questions concerning writs of execution often occur in real time as law enforcement personnel are seeking an immediate response in the field. The process of enforcing a judgment through a writ of execution requires careful attention to procedural requirements and statutes. While a judgment creditor may seek to collect his proverbial “pound of flesh,” the law has clear limits on how the underlying judgment may be collected. Answering related questions and providing guidance for law enforcement may be complicated, because as legal practitioners, we are faced with dueling objectives: the need for an urgent answer and the need to provide a complete legal response. When the constable calls, we hope this article will serve as a useful resource concerning writs of execution.
[1] Tex. R. Civ. P. 627. The writ of execution may be requested 30 days “from the time a final judgment is signed” or 30 days after an order overruling a motion for new trial is signed. Id.
[2] Tex. R. Civ. P. 637, 639-43.
[3] This is a process that enables a person, in whose favor the court rendered judgment, to create a judicial lien on nonexempt real property owned by the person against whom the judgment was rendered.
[4] Won v. Fernandez, 324 S.W.3d 833, 834-35 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
[5] Id. at 835.
[6] Id. at 835 n. 3.
[7] Tex. R. Civ. P. 621.
[8] Tex. R. Civ. P. 629.
[9] See generally Tex. Civ. Prac. & Rem. Code §31.002.
[10] Tex. R. Civ. P. 637.
[11] Boyd v. Ghent, 95 Tex. 46, 64 S.W. 929, 930 (1901).
[12] Ross v. Am. Radiator & Standard Sanitary Corp., 507 S.W.2d 806, 809 (Tex. Civ. App.—Dallas 1974, writ ref’d n.r.e.).
[13] Tex. R. Civ. P. 627.
[14] Id. In justice court, within 10 days from the judgment, the justice may grant a stay of execution for three months if the judgment debtor satisfies certain criteria, including acknowledging being bound to the debt with sufficient sureties and filing an affidavit with the court. Tex. R. Civ. P. 635.
[15] Tex. R. Civ. P. 628.
[16] Tex. R. Civ. P. 634; the term “supersedeas” is Latin for “you shall desist” and a “supersedeas bond” is a “a writ or bond that suspends a judgment creditor’s power to levy execution.” Black’s Law Dictionary (12th ed. 2024).
[17] Tex. Civ. Prac. & Rem. Code §34.001(a).
[18] Tex. Civ. Prac. & Rem. Code §34.001(b).
[19] Tex. Civ. Prac. & Rem. Code §34.063.
[20] See generally Garner’s Adm’r v. Cutler’s Adm’r, 28 Tex. 175, 1866 WL 3990 (1866).
[21] 11 U.S.C.A. 362(a)(1)–(2).
[22] See generally In re Coats, 168 B.R. 159 (Bankr. S.D. Tex. 1993); Hunsaker v. U.S., 902 F.3d 963, 971 (9th Cir. 2018).
[23] Tex. R. Civ. P. 637.
[24] See Collum v. DeLoughter, 535 S.W.2d 390, 393 (Tex. Civ. App.—Texarkana 1976, writ ref’d n.r.e.); Pantaze v. Slocum, 518 S.W.2d 407, 411 (Tex. Civ. App.–Fort Worth 1974, writ ref’d n.r.e.)
[25] See generally McCoy v. Rogers, 240 S.W.3d 267, 275 (Tex. App.–Houston [1st Dist.] 2007, pet. denied); Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 827 (Tex. App.–Texarkana 1999, no pet.).
[26] See generally Pantaze v. Slocum, 518 S.W.2d 407, 411 (Tex. Civ. App.—Fort Worth 1974, writ ref’d n.r.e.).
[27] See Tex. Const. Art. XVI §§49–52; Tex. Prop. Code §42.001–.004.
[28] See Tex. Prop. Code §§42.001(a)(1)–(2), .002.
[29] Tex. Const. Art. XVI §50(a). A homestead is “the house, outbuildings, and adjoining land owned and occupied by a person or family as a residence.” Black’s Law Dictionary (12th ed.); see also Tex. Prop. Code §41.002. The law does distinguish between urban homesteads and rural homesteads. An urban homestead consists of no more than 10 acres. Id. §41.002(a). A rural homestead consists of no more than 200 acres. Id. §41.002(b).
[30] Tex. Const. Art. XVI §50(a).
[31] See generally Wilcox v. Marriot, 230 S.W.3d 266, 270 (Tex. App.—Beaumont 2007, pet. denied) (“The execution on a money judgment may be had only upon property of the judgment debtor which is subject to execution by law”). Please note Texas Civil Practice and Remedies Code §34.071(3) provides that a constable does not have a duty to “determine whether property belonging to the judgment debtor is exempt property that is not subject to levy.” However, an early inquiry concerning the homestead status of a property may facilitate better execution of the underlying writ.
[32] See generally Harston v. Langston, 292 S.W. 648 (Tex. Civ. App. 1926).
[33] See generally Ramsey v. Davis, 261 S.W.3d 811, 817 (Tex. App.—Dallas 2008, pet. denied 2008).
[34] See generally Tex. Prop. Code §41.021 et seq.
[35] See generally Tex. Fam. Code §3.202(a).
[36] See generally Tex. Att’y Gen. Op. GA-0279 (2004).
[37] “A restrictive covenant is a contractual agreement between the seller and the purchaser of real property.” Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 668 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
[38] See Inwood North Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635-636 (Tex. 1987).
[39] “In Texas, a covenant runs with the land when it touches and concerns the land; relates to a thing in existence or specifically binds the parties and their assigns; is intended by the original parties to run with the land; and when the successor to the burden has notice.” Inwood North Homeowners’ Ass’n, Inc. 736 S.W.2d at 635 (internal citations omitted).
[40] Inwood North Homeowners’ Ass’n, Inc. 736 S.W.2d at 635-37.
[41] Tex. R. Civ. P. 639.
[42] Beaurline v. Sinclair Refining Company, 191 S.W.2d 774, 777 (Tex. Civ. App. 1946, writ ref’d n.r.e.) (citing Smith v. Harvey, 104 S.W.2d 938, 940 (Tex. Civ. App.—San Antonio 1937, writ ref’d)).
[43] Tex. R. Civ. P. 641. See also Tex. Bus. & Com. Code §8.112 (Creditor’s Legal Process).
[44] Tex. Civ. Prac. & Rem. Code §34.073(a) (2025). See also Tex. Loc. Gov’t Code §86.021 (2025).
[45] Tex. Civ. Prac. & Rem. Code §34.073(b).
[46] Tex. R. Civ. P. 647.
[47] Id. “If there be no newspaper published in the county, or none which will publish the notice of sale for the compensation herein fixed, the officer shall then post such notice in writing in three public places in the county, one of which shall be at the courthouse door of such county, for at least 20 days successively next before the day of sale.” Id.
[48] A court can also order the sale to occur on real property. Tex. R. Civ. P. 646a. A commissioners court may also designate an area other than the county courthouse where sales of real property may occur. See Tex. Civ. Prac. & Rem. Code §34.041(b). Further, a commissioners court may also authorize the sale of real property using an online auction. Id. §34.041(a).
[49] Tex. R. Civ. P. 646a.
[50] McCoy v. Rogers, 240 S.W.3d 267, 275 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
[51] Neblett v. Slosson, 223 S.W.2d 938 (Tex. Civ. App., Galveston 1949, writ refused n.r.e.).
[52] See generally Howard v. North, 5 Tex. 290, 1849 WL 4087 (1849).
[53] Tex. R. Civ. P. 647, 649.
[54] See generally Smith v. Adams, 333 S.W.2d 892, 893 (Tex. Civ. App.—Eastland 1960, writ ref’d n.r.e.); Tudor v. Orr, 179 S.W.2d 796, 797 (Tex. Civ. App.—Amarillo 1944, no writ).
[55] See generally Smith, 333 S.W.2d at 893; Tudor, 179 S.W.2d at 797.
[56] See generally Ludtke v. Bankers’ Trust Co., 251 S.W. 600, 603-04 (Tex. Civ. App.—Galveston 1922, writ ref’d); Warnock v. Marin, 93 S.W.2d 793 (Tex. App. –El Paso,1936, no writ); Tex. R. Civ. P. 647.
[57] Neblett v. Slosson, 223 S.W.2d 938, 940 (Tex. Civ. App. Galveston 1949, writ refused n.r.e.).
[58] See Wagner v. Hudler, 218 S.W. 100, 102 (Tex. Civ. App.—San Antonio 1920).
[59] McKennon v. McGown, 11 S.W. 532 (Tex. Sup. 1889). See also Tex. Civ. Prac. & Rem. Code § 34.041(c).
[60] Tex. Civ. Prac. & Rem. Code §§7.001, .003.