dissenting.
I respectfully dissent. I write to express my disagreement with the majority’s disposition of the constitutional questions presented. Conroy alleges a cause of action under 42 U.S.C.A. § 1983 (West 1981) against private citizens for a deprivation of fourteenth amendment procedural due process. Thus, the questions are whether constitutionally protected action occured and, if so, whether Manos and Management Systems are liable for such action under 42 U.S.C.A. § 1983.
Constitutionally Protected Action
The writ of restitution commands the constable to:
[Ejnter upon said tract or lot of land and into the building thereon situated, if any, and peaceable possession thereof restore to the said Plaintiff and of the goods, chattels, lands and tenants of the said Defendant you cause to be made the sum of 51.50 Dollars, costs of suit in this behalf expended, and your fees for executing this Writ.
In executing the writ, the constable removed Conroy’s personal property from the apartment and placed it upon a public *131street right of way. Conroy’s property was then stolen while the apartment manager employed by Manos and Management Systems watched. Thus, rather than obey the command to “cause to be made the sum of $51.50, costs of suit in this behalf expended, and your fees for executing this Writ,” the constable seized and abandoned Conroy’s property to her damage.
TEX.R.CIY.P. 748 provides that if judgment be for the landlord, the justice of the peace shall award the landlord a writ of restitution. Rule 748 is silent as to how the writ shall be executed. The Rules of Civil Procedure, however, are not silent as to how the writ of restitution shall be executed should the writ issue following appeal to the county court pursuant to TEX. R.CIY.P. 749. In that situation, TEX.R. CIV.P. 755 provides:
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 same shall be executed by the sheriff or constable, as in other cases; and such writ of restitution shall not be suspended or superseded in any case by appeal from such final judgment in the county court, (emphasis added).
To execute the writ of restitution “as in other cases” can only have reference to execution of writs of execution enforcing judgments. TEX.R.CIV.P. 621-656 contain the provisions for execution of writs of execution. Specifically, rules 649 and 650 provide for notice and sale of personal property. Rule 650 reads:
Previous notice of the time and place of the sale of any personal property levied on under execution shall be given by posting notice thereof for ten days successively immediately prior to the day of sale at the courthouse door of any county and at the place where the sale is to be made.
Rule 649 states in pertinent part:
Personal property levied on under execution shall be offered for sale on the premises where it is taken in execution, or at the courthouse door of the county, or at some other place if, owing to the nature of the property, it is more convenient to exhibit it to purchasers at such place. Personal property susceptible of being exhibited shall not be sold unless the same be present and subject to the view of those attending the sale.
Thus, it is obvious that the rules intend writs of restitution issued by both a justice of the peace and the clerk of the county court be executed in the manner of execution of writs of execution.
Abandoning personal property upon the public way is a far cry from the required posted notice of sale and offer for sale required by the procedures of this State. Thus, public sale following posted notice is the lawful procedure by which the constable was required to carry out the command to “cause to be made the sum of $51.50, costs of suit in this behalf expended, and your fees for executing this writ.” In the present case, however, rather than take Conroy’s property into his safe custody and thereafter conduct a proper public sale according to the rules in order to obey the writs’ command, the constable disobeyed the court’s command and failed to carry out his duties as directed by the writ. Therefore, the constable’s actions constituted an abuse of process in execution of the writ. Procedural due process requires the government to adhere to its own rules. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). Accordingly, Conroy was deprived of her fourteenth amendment right of procedural due process in the present case.
Moreover, I cannot agree with the majority that the due process clause of the fourteenth amendment permits the State of Texas to confiscate a person’s property by the procedure followed in the present case. It is one thing for the State to lawfully execute the writ of restitution by the required public sale following posted notice. In my view, service of process upon Conroy in the forceable detainer suit and the opportunity thus afforded Conroy to be heard would meet due process requirements for *132the taking of her property by the required public sale following posted notice. It is quite another matter, however, for the State to seize and then abandon Conroy’s property on the street to be stolen. Conroy had no notice that she would be deprived of her property in this manner. Conroy was afforded no hearing on the taking of her property in this manner. The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972). That a tenant might default in a forceable entry and detainer suit expecting ultimately to receive the net proceeds of the sale of his possessions is not consent that his property be placed at the street unprotected. In my view, given the encroachment on Conroy’s property in the present case, Fuentes requires notice and an opportunity to be heard before seizure and abandonment by the State. Consequently, Conroy was deprived of her fourteenth amendment right of procedural due process in the present case separate and apart from the failure of government to adhere to its own rules.
A longstanding tenant eviction practice in this State stands constitutionally challenged in the present case. The practice cannot meet the challenge. I would hold that the practice deprives tenants of their property without due process of law in violation of the fourteenth amendment under the facts of the present case.
Liability of Manos and Management Systems as Private Citizens
The writ of restitution was issued and executed on application of Manos and Management Systems. The constable used Ma-nos and Management Systems’ employee labor in executing the writ. Manos and Management Systems authorized use of its employees in executing the writ. In my view, had Manos and Management Systems participation ended once they invoked state legal procedures in applying for the writ, they would not be state actors and therefore not liable under 42 U.S.C.A. § 1983. Manos and Management Systems, however, did more than merely invoke state legal procedures. They jointly participated with state officers in executing the writ of restitution. Private persons, jointly engaged with state officials in prohibited action, are acting “under color” of law for purposes of 42 U.S.C.A. § 1983. To act “under color” of law does not require that the accused be an officer of the state. It is enough that he is a willful participant in joint activity with the state or its agents. Adickes v. S.H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). A private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a “state actor” for purposes of the fourteenth amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982). Thus, Manos and Management Systems, together with the constable, were state actors for purposes of the fourteenth amendment. Ma-nos and Management Systems acted jointly with the State to deprive Conroy of her property without due process of law in violation of the Constitution of the United States. I would hold, therefore, that Con-roy has a cause of action against Manos and Management Systems, as private citizens, under 42 U.S.C.A. § 1983 for this deprivation of her property without due process of law in violation of the fourteenth amendment. Lugar, 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.
Congress enacted § 1983 and its predecessor, § 2 of the Civil Rights Act of 1866, 14 Stat. 27, to provide an independent avenue for protection of federal constitutional rights. The remedy was considered necessary because state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights. Pulliam v. Allen, — U.S. -, 104 S.Ct. 1970, 1980, 80 L.Ed.2d 565 (1984). Thus, 42 U.S.C.A. § 1983 provides Conroy an independent avenue for protection of her federal constitu*133tional rights which were violated when the power of one of this State’s courts was used to seize, and to thereafter abandon, Conroy’s property upon a public parkway to Conroy’s damage.
In conclusion, I cannot agree with the majority’s disregard of property rights. Particularly, in light of the protection afforded property rights by the fourteenth amendment. As put by the Supreme Court in Lynch v. Household Finance Corp., 405 U.S. 538, 544, 552, 92 S.Ct. 1113, 1118, 1122, 31 L.Ed.2d 424 (1972).
It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential precondition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.
The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.
Under my approach, property rights of both landlord and tenant are protected. Proper execution of the writ of restitution returns to the landlord his property and protects the tenant’s property interests in that the officer’s sale obtains payment on costs and fees due from the tenant and restores to the tenant the balance, if any, out of the proceeds of sale. Thus, the tenant has the value of his property less his debts. Indeed, should the tenant be the successful bidder he has the return of his property. To the contrary, the majority protects only the landlord’s property rights and approves distribution of the tenant’s property to the human vultures gathered along the street awaiting the constable’s departure.
For the above reasons, I would reverse the trial court’s take nothing judgment and remand to the trial court.
STOREY and STEWART, JJ., join in this opinion.