June 8, 1939
Hon. Orville S. Carpenter, Chairman
and Executive Director
Texas Unemployment Compensation Commission
Austin, .Texas
Opinion NO. O-862
Re: Is the refusal of a,.sheriff to levy
execution under a judgment on chattels
of a judgment debtor in a suit filed un-
der the Texas Unemployment Compensation
Act until he is furnished an indemnity
bond justified, and can the State furnish
Dear Sir: such bond?~
We are in receipt of your letter& M8JI24 1939 in
which you. request the opinion of this department on Che follow-
ing questions:
“The Texas Unemployment Compensation Commission
is required by the Texas Unemployment Compensation
Act to ~file civil actions for the colleation of con-
tributions penalties or interest thereon in the name
of the Stage and the ~Attorney General. Judgments
rendered Xn such actions are, therefore, judgments in
the name of the State.
“A sheriff has refused to levy execution under
such judgment on chattels of a judgment debtor until
such time as he is furnished an Indemnity bond by the
State. Is his refusal justified? Can the State furn-
ish suoh Indemnity bond”?
It is a well reoognlsed principle of’law that, as a
general proposition an officer is bound to obey the legal or-
ders of a court anA is not entitled to be indemnified for so
doing. See Cra:en v. Buchanan 248 SW 69.
It is also well established that .a sheriff cannot
require a bond of indelrmity before selling real estate. Bryan
v* Bridge, 6 Tex. 137.
On the other hand, the courts of this state have gen-
erally recognized the right of an officer to require indemnity
before levying execution on personal property. Seasongood V.
Hon. Orville S. Carpenter, June 8, 1939, Page 2
Campbell, 49 SW 407; Head V. Carlin 240 SW 1Oflj Craven v.
Buchanan, 248 SW 89; 78 Tex. Jur. d2:
1'S 71. Risht to Rxact Indemnitv.-In contra-
distinction to the rule where the levy is made
on chattels, the plaintiff In a writ cannot be
required to indemnify the officer for levying
on real property for the reason that a levy on
land will not su b-Ject him to a suit for damages.
With respect to chattels, however, the law has
always recognized that the officer should be
conceded the right to protect himself from a
potential liability, notwithstanding that the
chattels are in the possession of the debtor
and are apparently -subject to levy under the
writ; and in the case of ,an attachment this right
is recognized by statute. The officer is there-
fore within his rights in requiring indemnity
where the defendant in the writ claims that the
chattels are exempt from execution or where
some third person claims chattels &at the off+ .,, ~-;,
cer believes to be avail’able for levy under the” ’
writ, or where there exists some other ground for
apprehending that a claim in’ trespass or conver-
sion will follow a seizure of chattels specified
in the writ or any property under a writ author-
izing a levy on the debtor’s,property generally.
mreover, if a doubt should arise. ,as to his) rights
to proceed to a sale of chattels, the officers ,.:
may exact indemnity~ after seizures and before a ‘.,:,”
sale. As has been pofnted out, any other rule
would require the officer to detertine the’owne~r-
ship of the chattels ‘at his peril, and the true
effect of R.S. art- 6873, requiring the sheriff
to execute all process and,prece,pts directed to
him by legal authority is not to abrogate the
ancient practice in this matter.”
In this connection we wish to point out that an of-
ficer has a statutory right to obtain a bond of indemnity when
levying an attachment. Article 287 of the Revised Civil Stat-
utes, 1925, giving him this rights, reads as follows:
Whenever an officer shall levy an attach-
ment, it shall be at his own risk. Such officer
for his own indemnification require the plain-
?& in att&neent to execute an4 deliver to him a
bond of indemnity to secure him if it should after-
ward ~appear that the property levied upon by him
does not belong to the defendant.”
- ._
Hon. Orville S. Carpenter, June 8, 1939, Page.3
In none of the ~above authorities, however, is this
right of the officer to an indemnity bond extended to a sit-
uation where the state is the judgment ~creditor.
Furthermore, although the officer or sheriff is en-
titled to indemnity in executions between private parties,
the state occupies an entirely different status. It is in
most instances granted privileges and lmmuuities not confer-
red by law upon private parties to lawsuits.
38 Tex. Jur. 861:
‘I *** the state is granted certain immani-
ties which are not available to other litigants,
such as the right to be sued only with,its consent,
ssfrom and
freedom from exec&k aga!&t it.#’ (Underscoring
ours>.
As au illustration of this immunity from giving bonds,
see Article 2276, Revised Civil Statutes. of Texas,’ 1925, which
reads in part, as follows:
“Neither the State of Texas, nor any county in
the State of Texas nor the Railroad Commission of
Texas, nor the hea A, of auy department of the State.
of Texas, prosecuting or defending in any action
in their official capacity, shall be required to
give bond on any appeal ‘or writ of error taken by
it, or either of them, in any civil case .I(
3 Tex. Jur.. 328 ’
It is not, of course, our contention that article
2276, which refers to appeal bonds in civil actions, would~ex-
empt the state as a judgment creditor from being bound by the
principle that a sheriff has the right to require an Indemnity
bond before levying execution on personal property. But, in
the absence of express statutory immuulty ir this particular
instance, we believe the general theory o h state exemption from
the requirement to give bond would apply. After all, the sher-
iff is an officer of the court. As such he is not entitled to
immunity for doing his duty in respect to the sovereignty of
which he is an important agent.
Article 6873 of the Revised Civil Statutes, 1925,
provides as follows:
Eon. Orville S. Carpenter, June 8, 1939, page 4
be reTtired to (givebcod on any sppeal or writ
of error taken by it, or either of thm, In any
oivil ca8e."
3Tex.Ju.r.. 928
It la not, of oourse, our oontentlonthat arti-
ale 2270, -.lhioh
refers to appeal bonds in a1vl.laatiom,
uoald exempt the state aa a judgment oredltorfrom being
bound by the prinolplethat a aheriif has the Pigbtto re-
quire an indeanlty bond beiore levying execution QIIper-
sonal property. But, in the absenue of express statutow
imaunity,in this partioular instenoe,we believe the
general theory oi state exemptiaafronthe requirementto
give bond would apply. After all, the sherlrf Is M offl-
oar or the court. AE suoh he la not entitledto immnity
for doing cis duty in reepeot to the sovereigntyoi whioh
he is en importantagent.
Article 6875 of the Revised Civil Statutes, 1925,
provides as iollcave:
%aoh sheriff shall execute all process and
preoepta direoted to him by legs1 authority,an4
make return thereof to the proper oourt on or be-
fore the day to whlohthe saue is returnable;and
any sheriff who shall rail so to do, or who shall
mak6 a false return on any process or preoept
shall, for every suoh offense, be liable to be
fined by the oourt to whioh suoh process is returu-
able-,as ror a contempt,not exceedingone hundred
dollars at the discretion of the cart, which
fine shall,gu to the county treasury; and suoh
sheriff shall also be liable to the party injur-
ed for all dmag:es he muy sustain."
It is our opinion that a sheriii is not justi-
lied In refusing to levy exeoution under a judgment in
favor of the Tex&.sUnemployment COmpensation Commission
on chattels oi a judeptantdebtor beoause he has not been
f.m:lsh=dan ind~emitg bond by the state.
TLe sawer to your first riU8tZtI.al
elimiuateetha
necessity of considering the +estion of %ðer or not
the state can rumish nn indemnity bond.
Eon. Orville S. Gerpenter, June 8, 1939, Page 5
Trustfng that the above fully answers the in-
cpirlee submitted,we are
YoLlm very truly