CIVIL PRACTICE & REMEDIES CODE
CHAPTER 62. SEQUESTRATION
SUBCHAPTER A. AVAILABILITY OF REMEDY
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER B. ISSUANCE
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER C. DISSOLUTION AND REPLEVY
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., ch. 167, § 3.11, eff. Sept. 1, 1987.
§ 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, § 1, eff. Sept. 1, 1985.
SUBCHAPTER D. CARE AND MANAGEMENT OF SEQUESTERED PROPERTY
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Sept. 1, 1985.
