UNIVERSITY OF HOUSTON LAW CENTER
COLLECTING DEBTS AND JUDGMENTS
2006
www.lawyers.com/bruceatkinslaw
© Bruce A. Atkins, 2006
CONTEMPT AND ATTACHMENT
Judgment Debtor's Choice:
Cooperate or Pay or Stay? |
I.
Introduction. This paper reviews the procedure to compel post judgment discovery through contempt and attachment when the judgment debtor refuses to comply with post judgment discovery requests and orders. Contempt and attachment are also available for the judgment debtor's failure to comply with a Turnover Order. The same procedure is available for violation of either an Order Compelling Discovery or a Turnover Order.
II.
Failure to Pay Judgment Debt. Notwithstanding a judgment creditor's angst, a judgment debtor may not be imprisoned for his failure to pay the judgment debt. Failure to comply with an order to pay "debt" is not contempt punishable by imprisonment.
Texas Const. art. 1, § 18 [No persons shall ever be imprisoned for a debt]; In re Henry, 154 S.W.2d 594 (Tex. 2005);
Ex parte Hall, 854 S.W.2d 656 (Tex. 1993) [Order to pay "debt" may be enforced through such legal processes as execution or attachment of property, but not by imprisonment of adjudicated debtor through finding of contempt.];
In re Roberts, 584 S.W.2d 925 (Tex. App. - Dallas 1979, no writ) [Commitment order issued following contempt finding for failure to pay debts was void.]However, not every obligation to pay money is a debt. within the meaning of Article 1, §18 of the Texas Constitution.
Ex parte Gorena, 595 S.W. 841, 846-47 (Tex. 1979) [trustee's or fiduciary's duty to turn over property, including money, to a third party];
Ex parte Sutherland, 526 S.W.2d 539 (Tex. 1975) [spouse's duty to surrender specific property in division of a community estate];
Ex parte Davis, 111 S.W. 394, 396 (Tex. 1908) [finder's duty to return "lost" money].
III.
Judgment Creditor's Ultimate Goal. The ultimate goal of the judgment creditor is full satisfaction of the judgment debt. Ideally, the judgment debtor would agree to pay the judgment debt on an agreed basis. However, in the likely event that does not occur, the judgment creditor, the judgment creditor must pursue post judgment remedies for satisfaction of the judgment. The postjudgment remedy available to secure the judgment debt is the judgment lien. Tex. Prop. Code §52.001-.0011 Vernon 1984) and Tex. Civ. Prac. & Rem. Code §52.001, et seq. (Vernon Supp. 1990). Postjudgment remedies available to satisfy the debt include: execution, Tex. Civ. Prac. & Rem. Code §§34.001-.067 (Vernon 1986), Tex. R. Civ. P. 313, 621-656; garnishment, Tex. Civ. Prac. & Rem. Code §§63.001 - .008 (Vernon 1986), Tex. Fin. Code §59.001(2), §59.008, §201.102 - .103; §276.002 (Vernon 2005), Tex. R. Civ. P. 313, 657 - 79; and turnover, Tex. Civ. Prac. & Rem. Code §31.002, §31.0025 and §31.010 (Vernon 1986 and Supp. 1999). Knowledge of the judgment debtor's assets and their location are factors in the choice selection and successful employment of post judgment remedies.