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  S.B. No. 1269
 
 
 
 
AN ACT
  relating to the performance of certain civil duties by officers in
  this state.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 7.001, Civil Practice and Remedies Code,
  is amended to read as follows:
         Sec. 7.001.  LIABILITY FOR REFUSAL OR NEGLECT IN PERFORMANCE
  OF OFFICIAL DUTIES.  (a)  A clerk, sheriff, or other officer who
  neglects or refuses to perform a duty required under the Texas Rules
  of Civil Procedure [Title 42, Revised Statutes,] or under a
  provision of this code derived from those rules [that title] is
  liable for actual damages only in a suit brought by a person injured
  by the officer's neglect or refusal.
         (b)  The officer may be punished for contempt of court for
  neglect or refusal in the performance of those duties. The court
  shall set the fine at not less than $10 or more than $100, with
  costs. The officer must be given 10 days' notice of the motion.
         (c)  This section does not create a cause of action for an
  action that can otherwise be brought under Chapter 34. A party may
  seek actual damages under this section or Chapter 34, or the party
  may seek contempt sanctions, but the party may not seek both damages
  and contempt.
         (d)  An action or motion brought under this section must
  comply with and is subject to the provisions in Sections 34.068,
  34.069, 34.070, and 34.074, except that a motion brought under
  Subsection (b) need not comply with Section 34.068(b).
         SECTION 2.  Section 7.003, Civil Practice and Remedies Code,
  is amended by amending Subsection (a) and adding Subsection (c) to
  read as follows:
         (a)  Except as provided by Section 34.061, an officer is not
  liable for damages resulting from the execution of a writ issued by
  a court of this state if the officer[:
               [(1)]  in good faith executes or attempts to execute
  the writ as provided by law and by the Texas Rules of Civil
  Procedure[; and
               [(2)     uses reasonable diligence in performing his
  official duties].
         (c)  An officer shows that the officer acted in good faith
  when the officer shows that 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.
         SECTION 3.  Section 34.061, Civil Practice and Remedies
  Code, is amended by amending Subsection (b) and adding Subsection
  (c) to read as follows:
         (b)  If an injury or loss to an interested party results from
  the negligence of the officer, the officer and his sureties are
  liable for the value of the property lost or damaged [the amount of
  the injury sustained, plus 10 percent of that value or amount. The
  total amount is recoverable on motion of the injured party filed
  with the court that issued the writ, following three days' notice].
         (c)  The injured party has the burden to prove:
               (1)  that the officer took actual possession of the
  injured party's property; and
               (2)  the actual value of any property lost or damaged.
         SECTION 4.  Sections 34.063 through 34.067, Civil Practice
  and Remedies Code, are amended to read as follows:
         Sec. 34.063.  IMPROPER ENDORSEMENT OF WRIT.  (a)  If an
  officer receives more than one writ of execution on the same day
  against the same person and fails to number them as received or if
  an officer falsely endorses a writ of execution, the officer and the
  officer's [his] sureties are liable to the plaintiff in execution
  only for actual damages suffered by the plaintiff because of the
  failure or false endorsement[, plus 20 percent of the amount of the
  execution. The total amount is recoverable on motion of the
  plaintiff filed with the court that issued the writ, following
  three days' notice].
         (b)  The plaintiff in execution has the burden to prove:
               (1)  the officer failed to properly number or endorse
  the writ of execution;
               (2)  the officer's failure precluded the levy of
  executable property owned by the judgment debtor;
               (3)  the executable property owned by the judgment
  debtor was not exempt from execution or levy; and
               (4)  the plaintiff in execution suffered actual
  damages.
         Sec. 34.064.  IMPROPER RETURN OF WRIT.  (a)  An officer may
  file an amended or corrected return after the officer has returned a
  writ to a court.
         (b)  Once an officer receives actual notice of an error on a
  return or of the officer's failure to file a return, the officer
  shall amend the return or file the return not later than the 30th
  day after the date of the receipt of notice.
         (c)  An officer who fails or refuses to amend or file the
  return may be subject to contempt under Section 7.001(b) [If an
  officer neglects or refuses to return a writ of execution as
  required by law or makes a false return on a writ of execution, the
  officer and his sureties are liable to the person entitled to
  receive the money collected on the execution for the full amount of
  the debt, plus interest and costs. The total amount is recoverable
  on motion of the plaintiff filed with the court that issued the
  writ, following five days' notice].
         Sec. 34.065.  FAILURE TO LEVY OR SELL.  (a)  If an officer
  fails or refuses to levy on or sell property subject to execution
  and the levy or sale could have taken place, the officer and the
  officer's [his] sureties are liable to the party entitled to
  receive the money collected on execution only for actual damages
  suffered.
         (b)  The judgment creditor seeking relief under this section
  has the burden to prove:
               (1)  the judgment creditor has a valid judgment against
  the judgment debtor;
               (2)  the writ of execution was issued to the judgment
  creditor;
               (3)  the writ was delivered to the officer;
               (4)  the judgment creditor's judgment was unpaid and
  unsatisfied;
               (5)  the property to be levied on was subject to
  execution;
               (6)  the officer failed or refused to levy under the
  writ; and
               (7)  the amount of actual damages suffered.
         (c)  Property to be levied on is subject to execution for
  purposes of this section if the judgment creditor proves that the
  judgment debtor owned the property at issue, the property was
  accessible to the officer under the law, the property was situated
  in the officer's county, and the property was not exempt from
  execution.
         (d)  Before a court may find that an officer failed or
  refused to levy under the writ for purposes of this section, the
  court must find that the judgment creditor specifically informed
  the officer that the property was owned by the judgment debtor and
  was subject to execution and that the creditor directed the officer
  to levy on the property [for the full amount of the debt, plus
  interest and costs. The total amount is recoverable on motion of
  the party filed with the court that issued the writ, following five
  days' notice to the officer and his sureties].
         (e)  In this section, "actual damages" is the amount of money
  the property would have sold for at a constable or sheriff's auction
  minus any costs of sale, commissions, and additional expenses of
  execution.
         Sec. 34.066.  IMPROPER SALE.  (a)  If an officer sells
  property without giving notice as required by the Texas Rules of
  Civil Procedure or sells property in a manner other than that
  prescribed by this chapter and the Texas Rules of Civil Procedure,
  the officer [forfeits and] shall be liable only for actual damages
  sustained by [pay to] the injured party [not less than $10 nor more
  than $200, in addition to any other damages sustained by the party.
  The amount is recoverable on motion of the party, following five
  days' notice to the officer and his sureties].
         (b)  The injured party has the burden to prove that the sale
  was improper and any actual damages suffered.
         Sec. 34.067.  FAILURE TO DELIVER MONEY COLLECTED.  If an
  officer fails or refuses to deliver money collected under an
  execution when demanded by the person entitled to receive the
  money, the officer and the officer's [his] sureties are liable to
  the person for the amount collected and for damages at a rate of one
  [five] percent a month on that amount if proven by the injured
  party[, plus interest and costs. The total amount is recoverable on
  motion of the person entitled to the money filed with the court that
  issued the writ, following five days' notice to the officer and his
  sureties].
         SECTION 5.  Subchapter D, Chapter 34, Civil Practice and
  Remedies Code, is amended by adding Sections 34.068 through 34.076
  to read as follows:
         Sec. 34.068.  RULES GOVERNING ACTIONS UNDER THIS CHAPTER.  
  (a)  This section applies to any claim for damages brought under
  Section 7.001, 34.061, 34.063, 34.065, 34.066, or 34.067 or under
  Section 86.023, Local Government Code.
         (b)  Suit shall be brought in the form of a lawsuit filed
  against the officer in the county in which the officer holds office.
         (c)  All suits must be filed not later than the first
  anniversary of the date on which the injury accrues.
         (d)  An officer or a surety may defend the action by stating
  and proving any defenses provided by law, including any defense
  that would mitigate damages.
         Sec. 34.069.  PAYMENT OF DAMAGES. A county, at the
  discretion of the commissioners court, may pay any judgment taken
  against an officer under Section 7.001, 34.061, 34.063, 34.064,
  34.065, 34.066, or 34.067 or under Section 86.023, Local Government
  Code, provided that this section does not apply if the officer is
  finally convicted under Section 39.02 or 39.03, Penal Code.
         Sec. 34.070.  RIGHT OF SUBROGATION. An officer against whom
  a judgment has been taken under Section 7.001, 7.002, 34.061,
  34.063, 34.064, 34.065, 34.066, or 34.067 or under Section 86.023,
  Local Government Code, or a county that has paid the judgment on
  behalf of the officer under Section 34.069, has a right of
  subrogation against the debtor or person against whom the writ was
  issued.
         Sec. 34.071.  DUTIES OF EXECUTING OFFICER. An officer
  receiving a writ of execution does not have a duty to:
               (1)  search for property belonging to the judgment
  debtor;
               (2)  determine whether property belongs to a judgment
  debtor;
               (3)  determine whether property belonging to the
  judgment debtor is exempt property that is not subject to levy;
               (4)  determine the priority of liens asserted against
  property subject to execution; or
               (5)  make multiple levies for cash or multiple levies
  at the same location.
         Sec. 34.072.  TIMING OF EXECUTION AND RETURN. (a)  An
  officer receiving a writ of execution may return the writ after the
  first levy, or attempted levy, if the judgment creditor cannot
  designate any more executable property currently owned by the
  judgment debtor at the time of the first levy or first attempted
  levy.
         (b)  Notwithstanding Rule 637, Texas Rules of Civil
  Procedure, an attempt to levy on property may begin any time during
  the life of the writ, provided that the officer shall allow enough
  time for completing the sale of the property.
         Sec. 34.073.  TRANSFER OF WRIT; NO DUTY TO LEVY OUTSIDE OF
  COUNTY. (a)  An officer receiving a writ may transfer the writ to
  another officer in another precinct, or to another law enforcement
  agency authorized to perform executions, within the county of the
  first officer who received the writ.
         (b)  An officer does not have a duty to levy on or sell
  property not within the officer's county, unless it is real
  property that is partially in the officer's county and partially
  within a contiguous county.
         Sec. 34.074.  OFFICER'S SURETY. (a)  An officer's surety
  may only be liable for the penal sum of the surety bond minus any
  amounts already paid out under the bond. In no event may an
  officer's surety be liable for more than the penal sum of the
  officer's surety bond.
         (b)  If the officer and the officer's surety are both
  defendants in an action brought under this chapter, the surety may
  deposit in the court's registry the amount unpaid under the surety
  bond and the court shall determine the proper disposition of this
  sum or order the return of the deposit to the surety in the court's
  final judgment.
         (c)  A surety is not a necessary party to an action brought
  under this chapter or under Section 7.001. Instead, a prevailing
  party under these provisions may bring a separate action against a
  surety failing to pay the amount remaining under the bond on a final
  judgment. This action must be brought on or before 180 days after
  the date all appeals are exhausted in the underlying action.
         Sec. 34.075.  WRONGFUL LEVY. Whenever a distress warrant,
  writ of execution, sequestration, attachment, or other like writ is
  levied upon personal property, and the property, or any part of the
  property, is claimed by any claimant who is not a party to the writ,
  the only remedy against a sheriff or constable for wrongful levy on
  the property is by trial of right of property under Part VI, Section
  9, Texas Rules of Civil Procedure.
         Sec. 34.076.  EXCLUSIVE REMEDY. This subchapter is the
  exclusive remedy for violations of an officer's duties with regard
  to the execution and return of writs without regard to the source of
  the duty prescribed by law.
         SECTION 6.  Subsection (a), Section 86.024, Local Government
  Code, is amended to read as follows:
         (a)  If a constable fails or refuses to execute and return
  according to law a process, warrant, or precept that is lawfully
  directed and delivered to the constable, the constable shall be
  fined for contempt before the court that issued the process,
  warrant, or precept on the motion of the person injured by the
  failure or refusal. This section does not apply to actions brought
  under or that could have been brought under Chapter 34, Civil
  Practice and Remedies Code.
         SECTION 7.  Section 604.005, Government Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  In no event may the surety be liable for more than the
  penal sum of the surety bond minus any amounts already paid out
  under the bond.
         SECTION 8.  This Act applies only to the performance of a
  duty that occurs on or after the effective date of this Act. A duty
  performed before the effective date of this Act is governed by the
  law applicable to the performance of the duty immediately before
  the effective date of this Act, and that law is continued in effect
  for that purpose.
         SECTION 9.  This Act takes effect September 1, 2007.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1269 passed the Senate on
  April 26, 2007, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1269 passed the House on
  May 17, 2007, by the following vote:  Yeas 143, Nays 0, two
  present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor