Even today, some Texas lawyers-particularly those representing garnishees-take the position that privates are not authorized to serve the writ of garnishment. Given the fact that my service of the writ has been challenged twice in the last two years, one could reasonably assume it happens regularly throughout the state. Most in this camp cite Rule 663 TRCP (October 1940) which states as follows:
The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.
For starters, it appears to me that Rule 663 does not expressly prohibit service by a private process server- none existed at that time. In my view Rule 103 TRCP amended and effective 2005, trumps 663. In support, the rule to wit:
Process-including citation and other notices, writs, orders, and other papers issued by the court-may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order.
Obviously, the writ of garnishment is not one that requires the actual taking of possession of a person, property or thing, nor one requiring that an enforcement action be physically enforced by the person delivering the process. As stated even in [the dated] 663, it’s just another citation.
As for the outcome of my cases, in one instance the 116th District Court of Dallas County upheld the service denying the garnishee’s motion to dissolve (Dallas City Bank vs. Lori Gerard, et al) based on case law. In the other, the plaintiff’s attorney elected to have the writ re-served by constable rather than incur the additional expense to defend. In either case, my authority to serve the writ should never have been in question.
The Bottom Line: Rule 663 TRCP adopted in 1940 does not govern what a private server can serve- it is applicable only to sheriffs and constables. The only rules governing what a private can serve are Rules 103 TRCP adopted in 1987, and 536 TRCP adopted in 1990. Both were amended in 2005 to permit service of virtually all writs by any authorized person.
I agree Marc. Attorneys giving that service to Constables is outrageous. I had a paralegal the other day that tried to give me the service, but the Attorney overruled her, and then gave her heck for questioning him. I sent her exactly what you have above, and got her out of hot water & hopefully taught an Attorney how to read :~) Good Luck!
Hey Marc,
Great information. The constables are absolutely trying to take everything they can away from us. I have been at two meetings where I witnessed this first hand.
At one meeting before the Supreme Court Rules Advisory Committee, Constable Ron Hickman, Pct. 4, Harris County tried to convince them that not only were we prohibited from serving WOGs, but ALL WRITS! It didn’t work, and I informed the Committee that private servers have been serving WOGs for a long time and the amendments to Rules 103 & 536(a) TRCP had clarified the matter once and for all. The Committee agreed and recommended the Supreme Court change the 663 rules to conform with 103; that hasn’t happened yet. Feel free to write a letter to the Tx. Supreme Court.
At the other meeting, a different constable (I forget his name) tried to tell the Supreme Court’s Ancillary Proceedings Task Force (Boy, that’s some name!) that only sheriffs and constables should serve anything that MIGHT need an enforcement action like TROs, Injunctions, even subpoenas by their reasoning. They mistakenly think that when they serve a writ that says a husband has to leave the home, for instance, that they are suppose to stand there while the guy grabs his car keys and razor so the cop can escort him out immediately, and they want the power to arrest him on the spot if he doesn’t comply. They tried to change the law/rule, but I don’t think it happened.
Thanks again Marc,
Tod Pendergrass
This matter was resolved more than two decades ago, when a Nueces County judge ruled in a matter that writs of garnishment could be served by process servers authorized under Rule 103, TRCP. Relying upon the principla of stare decisis, we may confidently rely on courts to render the same opinion as the one who set the precedent.
The Supreme Court’s most recent amendment to Rule 103 intended to specifically target writs of garnishment as a document private process servers could deliver, by referring to writs not requiring immediate enforcement action.
Private service of writs of garnishment is an authority that has been settled with finality both by the courts and by the TRCP.
There is a certain bank in Houston whose attorneys maintain that private process servers may not serve writs of garnishment, and they have informed me that if I use a private process server they intend to file a motion to quash service. My opinion is that when the Texas Supreme Court amended Rule 103 authorizing certified process servers to serve “writs” which do not require a physical enforcement action on the part of the process server, it in effect overturned the earlier prohibition articulated in Lawyers Civil Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939 (Tex.App. —Dallas 1985), and Moody Nat. Bank v. Riebschlager, 946 S.W.2d 521 (Tex.App. —Houston [14 Dist.] 1997). However, there remains no case law in the six years since Rule 103 was amended which addresses the question of whether service of a writ of garnishment by private process server duly authorized by the Supreme Court properly confers in personam jurisdiction over the funds and property held by the garnishee.
I think it does, and so does every other private process server in Texas – but our opinion doesn’t count since we’re not the men in the black dresses.
The problem with fighting the garnishee’s attorney in a garnishment action over the issue is that if you lose, you will have to pay the garnishee’s attorney fees. OUCH!
So how to get around that? The next time I sue out a writ of garnishment on that certain Houston bank, I will also have my attorney ready to file a separate suit for declaratory judgment. If the bank’s lawyers file their motion to quash, I will ask the trial court to put everything on hold while my attorney files the lawsuit for declaratory judgment, and we will try the issue. We will fight it up to the appellate level if we have to. In the end I think that we will prevail, and that bank will end up paying my attorney fees.
I see your point, but Lawyers Civil Process is still good law. Moody Nat’l Bank v Riebschlager, 946 SW2d 521 is still good law. Do you have a reported case that states differently? Or is the proposed change to Rule 663 you rec’d from the law clerk at the Supreme Court been made? I’m not opposed to private service, but I don’t see a change in the case law interpreting Rule 663 or saying that rule is trumped by Rule 103. You make a persuading argument, but I need case law. Thanks, Truman Spring
There is case law since Moody v Riebschlager supporting our position. Neither the garnishee or the court questioned the propriety of the private to serve the WOG. I recommend you point your clients to it.
Marc, I’m sure you’ve noticed the comment at the end of 2005 amendments to 103/536(a)…”Subsection (a) is amended to clarify that it applies to service of all process and to include among the persons authorized to effect service those who meet certification requirements promulgated by the Supreme Court.”
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