Untitled Texas Attorney General Opinion

The Attorney General of Texas
July 6, 1982
MARK WHITE
Attorney General

WouorableMike Driacoll Opinion No.hW-406
supremscoull sulMiflg Esrrle CountyAttorney
P. 0. Box 12949
Auslln. TX. 78711.2545
1001 Preston.Suite 634 Be: Temporary dispositionof
512/4752591 Rouston,Texan 77002 tenant’e personal property
Telex 919/974-1387 vhen- tenant is subject to
Telecqir 5t2l479.0299 -removalfrm premisespursuant
..% to court order
1697Mdll Sl.. suite 1409
LMlh& TX. 752014709 Dear Mr. Driscoll:
214l742.9944 _
Iu your letter to this office.you stated:
4924AlbertaAve.. suite 150
El Paw. TX. 799052793 .
A,situation has come to a head ‘in Barrio County
91- ..,qverthe authority of a constable to place
personal property of a- tenant’ in a public
-,Lwarehouse
when ~uecuting a Writ of Restitution
1220OallSSAve.. Suite 292
from a justice court or county court at law. A
Nolmton.TX. 77o!xaQ55
71-
-.spokesmanfor the juetices of .,ethe. peace has
requestedus to ask you for your :opinionof this
mett*r.
906 BrOwway, sate 312
Lubbock,TX. 79401-2479
8081747.52%
Articles’3973 through 3994, :V.T.C.g.,provide for an action of
forcibleentryand detainer.~.Rules~738 through:755of the Texas Rules
of --Civll~
iProcadure govern the .procedurein such action. Rule 740
4399 N. Tenth. Suits B atetes that:‘1 ,tL7r ~~ ~,
YcAffelt,TX. 7B501-1995 .~,, .:: .,I 1 i ”
512m92-4547
If ,the::judgment~or verdict’.be :in favor of the
~‘,,
plai.utiff,the.justice ebell :,give *,
judgment for
200 M*ln PIUL suite 4w ,..p,leiutiff
for restitution-of the :premisea.coets.
San Antonlo.TX. 792052797 .+nd.damages; end he ‘shall award his writ of
512l2254191 vestitution. If the judgment or verdict be in
favor of the defendant, the justice shall give
.judgmeotfor defeudent against the .plaintifffor
,coataand any damages. No writ:of restitution
abell~iesueuntil the expirationof five days from
the time the judgmentia signed.

Rule 755 providesthat:

The writ of restitution.or execution, or both,
shall be issued by the clerk of the county court
according to the judgment rendered, and the snme
shell be executedby the sheriff or constable,as

D. 1717
HonorableMike Driacoll- Page ,2 (NW-486)

in other cases;and such writ of restitutionshall
not be suspended or superseded in any case by
appeal fro-esuch final judgment in the county
court.

In your letter,you advised that:

[iln the past few weeks two district judges and
one county court at law judge have questioned.the
constable'sauthorityto place a tenant'8peraoeal
property in a public warehouse at the tenant's
expensewhen executinga Writ of Restitution.-.

You did uot..however.ask us to considerany specific possible legal
impedimentto this practice. Therefore,we will respond in general
term3 to your question.

Perguaon v. Barnes, 274 S.W. 277 (Tex. Civ. App. - San Antonio
1925,writ dima'd).was a suit to recoverdamageswhich the plaintiffs
claimedwere sustainedwhen the county sheriffevicted them from their
home end ."dump[ed] [their].household goods, furniture, wearing
apparel. and .otherproperty,and-belongings...'.intothe street." Id.
at- 270. me: relevant background information, and the courz
concluaiona,are!aet forthin this excerpt'fromthe court's opinion:

s. :: c. Pitagerald filed a suit for forcible
,detainerof ~certain premises.... :In connection
with his suit he filed a bond..~..:CL B. Corley.
the justice of the peace. took the complaint...
and issued a citationthereon..:. Be placed this
citation in the hands of... the sheriff;:.[who]
served it upon.the~.defendaar...i;~.-The
plaintiffin
the forcibledetainer suit having filed~a bond;..
at the time of the institutionof the suit... it
.~becama the ~duty.of thei%herifff.. to put the
plaintiff..i.npoaeeaeioa~~'of: -the ~~~premiaea
in
: ..~diepute, unless the defendant presented to said
sheriff:.a bond in .double the amount of the
plaintiff's,bond..,. This ~bond coming too late,
the, aheriff.....,wasrequired to ~"~put s. c.
Fitznerald
i - ..in~ooeaeaaion'-;of~the nremiaea in
dispute. This hi-could do only by &possessing
Ferguaon by removing his effects from the
premiaee.... ,-Thesheriff. in executingthe writ,
was acting in his official capacity. The writ is
fair on -its face, and .th&efore a complete
protection to the officer. unless, indeed, he
should have acted arbitrarilyand harshly, with a
bad motive and wrongful intent.... The cause of
action is predicated on the .claimthat all the
appelleeaacting togetherharshlyand oppressively
HonorableMike Driacoll- Page 3 (MW-486)

committeda tort or trespass.and it devolvedupon
them to substantiateit by evidence. We do not
think appellsnts have shown any malice or
arbitrary action on the part of appellees....
(Emphasisadded).

-Id. at 279.
In Guyer v. Guyer. 141 S.W.2d 963 (Tex. Civ. App. - Amarillo
1940, writ ref’d), the appellantsought, inter alla, damages for the
alleged conversionof her householdfurnitureby the county sheriff.
Acting under a writ of possessionissued after final judgment in a
trespass to try title action. the sheriff had removed appellant’s
propertyfrom the premises in questionand placed it in a warehouse,
subjectto appellant’sorders. The court stated:

the .aheriff removed such uronertv from the
premises under the direction‘of‘a valid writ of
possessionand stored the same in the warehouseof
Sid Parker of Vernon...subject to the disposalof
the appellant. No demand for posaeaaionmofthis
property was thereafter ever wade by the
gpellant. The testimony shows that she could
have obtained the propertyat any time she called
for it upon the payment-of the storage charges
thereon.... There was no evidence that the
appellantdirected the sheriffwhere to place the
property or that she gave him any directionsat
all with reference thereto. It is apparent from
the record that the propertywas stored solely for
the benefit of the appellant. Neither the
sheriff, nor Prince, nor anyone other than
appellantwer assertedany claim to or ownership
of such property or exercised any dominion or
control over it. Under such circumstanceswe
think no conversion of the property was shown.
(Emphasisadded).

Id. at 968-69. For furtherdiscussionof the elementsof the crime of
nZnversion.” see, e.g., Hull v. Freedman,383 S.W.2d 236 (Tex. Civ.
APP. - Fort Worth 1964. writ ref’d n.r.8.);Cantrellv. Broadnax.306
S.W.Zd 429 (Tex. Civ. App. - Dallas 1957. no writ).

These cases demonstrate that it is not per se illegal for a
sheriff. acting under a valid writ of possession or writ of
restitution,to remove a tenant’spersonal propertywhich is located
in the subjectpremisesand have it stored in a public warehouse. See
also Shemanski v. Sair, 268 P.2d 576 (Cal. App. Dep’t Super. Ct.
1954); Gaertner v. Bues. 85 N.W. 388 (Wls. 1901) (officer may.
exercising“reasonablecare,” selectwarehousefor storageof property
and take property thereto). Various legal pitfalls may, of course,

p. 1719
RonorableMika Driacoll- Page 4 (Ml-486)

appear in a particular case. depending on the facts. The cases
discussed above offer clues as to the kinds of complfcationathat
might arise.

In your brief, you stated that Aarria County adheres to the
followingprocedure:

After trial -- or opportunityto appearand defend
himself - judgment is rendered against the
tenant. After five days and no appeal havingbeen
perfected,-aWrit of Restitution' Pay issue. When
the vrit is placed with ~theconstable.in Rarria
County,'a:wrltten notice is taken to the aubjcct
pramiaea by the officer~~informingthe~tenantthat
the officer.~ will:~move him and his;-:property
therefromunless the tenant voluntarilyramovea
such:.from the.property. When the day of reckoning
.arrivea,the tenant;:etill holding poaaeaion'iaa
.a&offlnwwho has flouted his lendlord and lease
agreement, flouted the court:-and flouts the
officer..~,Undersuch state of affairs,the officer
cella:~~,.on
;:aoms moving:.'compenytom aid him 'in
executing the court order.. Previously he ,hea
'requiredany such moving .compai~yto show proof
thatit .ia.operatinga bonded warehouse and'has
sufficientpublic liebility insurancecoverage-to
protect a tenent'a~"property'~ intereat~in any
jremoved-propertythat might-be lost or damaged
while:inthe mover's custody. ~.
.~ f:'
In our opinion,..the storage of a 'ter&~a.peraorLsl:property
under
these conditions :would, absent extenuating drcumatancea. be
reaaonable;;~.
Aa we.h+ve.,notad
, ,howevet,i_the.~facta
of a particularcase
might create:cau~~:of~.,lctlonwhich:cannotbe anticipatedhere.

It is not per se illegal for a sheriff,acting
under,-'avalid-writ of reatitution issued in a
forcible detainer~action, to ramova a tenant's
.* personal property,:~fromthe .aubjectpramiaea end
store it ina public warehouse. The facta of a
particularcase might, however, create causes of
actionwhich cannot be anticipatedhere.'

MARK WEITE
AttorneyGeneralof Texas

n. 1770
EonorableHike Driscoll- Page 5 (HW-486)

JOHN W. FAINTER,JR.
First AssistantAttorneyGeneral

RICRARDE. GRAY III
ExecutiveAssistantAttorney General

Preparedby Jon Bible
AssistantAttorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,Chairman
Jon Bible
Rick Gilpin
PatriciaRinojoaa
Jim Woellinger
Susan Russell
Bruce Youngblood

p. 1721