Archives for posts with tag: Civil

It should be noted that Texas history is filled with citizens from other states and countries moving to Texas to escape debt and not so friendly debt collection laws, including in some instances, debtor’s prison.  For example, William B. Travis avoided arrest in Alabama for unpaid debts by moving to Texas.

As a result, the early Texans were not so fond of government interference in their private matters, including debt-collection.  That legacy still exists in Texas today.  Obtaining a judgment against a citizen of Texas may be one thing.  But collecting it is certainly another.

Chapters 41 and 42 of the Texas Property Code set forth certain property classifications which are “exempt” from execution by a judgment creditor.  Execution is the process of forcefully taking the property of a debtor, selling it, and paying the proceeds to a judgment creditor.  If the property is exempt, it may not be taken to satisfy a judgment debt.

Chapter 41 of the Texas Property Code deals with exempt real property.  Real property includes any permanent improvements and fixtures located on land.  Except for certain permitted types of liens and removables, a “homestead” and one or more lots used for a place of burial are exempt from seizure for the claims of a judgment creditor.

In order to qualify as a homestead, the real property (and improvements) must be categorized as either “urban” or “rural”.  If a property is “urban”, then the homestead exemption is limited to 10 acres.  If a property is “rural”, then for a single adult person the  homestead exemption is limited to 100 acres, and for a family the exemption is  limited to 200 acres.

A property is considered “rural” if it is not “urban”.  A property is considered “urban” if the property is located within the limits of a municipality or the extraterritorial jurisdiction of a municipality or a platted subdivision; and is served by policy protection, paid or volunteer fire protection, and at least 3 of the following services provided by a municipality or under contract to a municipality: (a) electric, (b) natural gas, (c) sewer, (d) storm sewer, and (e) water.

The proceeds from the sale of a homestead continue to be exempt for a period of 6 months following the date of sale.

Chapter 42 of the Texas Property Code addresses exempt personal property.  Personal property includes moveable property which is not real property.  Certain amounts and types of personal property are exempt from garnishment, attachment, execution, or other seizure.  The amount is limited to $100,000.00 of the combined fair market value of the personal property of a family.  For a single adult, the exemption amount is limited to $50,000.00.

The following are types of personal property that are exempt so long as the combined value does not exceed the limitations set forth above:

  1.  home furnishings, including family heirlooms;
  2.  provisions for consumption;
  3. farming or ranching vehicles and implements;
  4. tools, equipment, books, and apparatus, including boats and motor           vehicles  used in a trade or profession;
  5. wearing apparel;
  6. jewelry not exceeding 25% of the aggregate limits set forth above;
  7. two firearms;
  8. athletic and sporting equipment, including bicycles;
  9. a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each     member of a family or single adult who holds a driver’s license or who     does not hold a driver’s license but who relies on another person to           operate the vehicle for the benefit of the nonlicensed person;
  10. the following animals and forage on hand for their consumption:
    1.  horses, mules, or donkeys and a saddle, blanket, and bridle for                  each;
    2. 12 head of cattle;
    3. 60 head of other types of livestock; and
    4. 120 fowl; and

k. household pets.

Unpaid commission for personal services not exceeding 25% of the limitations set forth above are also exempt from seizure.

The following are the types of personal property that are exempt and their combined value is not included in the limitations discussed above:

  1. current wages for personal services (except for court-ordered child support payments);
  2. professionally  prescribed health aids of a debtor or a dependent of a debtor.
  3. alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or a dependent of a debtor; and
  4. bible or other religious book containing sacred writings (excludes a landlord exercising a contractual or statutory right to seize property after a tenant’s breach of a lease or abandonment of the leased premises).

Additionally, certain savings and retirement plans and college savings plans are also exempted from seizure.

VeronaNJ_CourtsIn response to legislation adopted in 2011, the Supreme Court of Texas has issued new rules governing civil cases filed in justice courts.  These new rules go into effect on August 31, 2012, and will govern the filing, pre-trial procedures, trial, and appeal of all civil cases filed in a justice court.

Historically, cases in justice courts were divided into small claims and justice court cases.  Small claim cases typically involved civil disputes of $10,000.00 or less. However, these same cases could also be heard as a justice court case.  The Texas Rules of Evidence applied to justice court cases, but not to small claims cases.  Certain types of civil disputes can only be initiated in justice courts, such as evictions, tenant lockouts, and the disconnection of residential tenant’s utilities by a landlord.

To some extent, the new rules simplify practice in justice courts.  Under the current rules, multiple and seemingly conflicting statutes could apply, while certain procedural topics are loosely addressed.  Texas Rules of Civil Procedure 523-591 set forth the general rules 737-755 deal with particular cases such as evictions and enforcing a landlord’s duty to repair or remedy residential rental property.  Starting August 31st, these rules will be repealed and replaced with new rules 500-510 of the Texas Rules of Civil Procedure.

The new rules will divide justice court civil cases into four distinct categories (1) small claims cases (rules 500-507); (2) debt claim cases (rules 500-507 and 508); (3) repair and remedy cases (rules 500-507 and 509); and (4) eviction cases (rules 500-507 and 510).

The general rules governing all cases will be found in rules 500-507.  These rules will apply to all small claims cases, and any other case not covered by rules 508, 509, and 510 which may be filed in a justice court.  Small claims cases will continue to apply to any disputes over monetary sums of $10,000.00 or less.  In computing  the $10,000.00 amount, attorney’s fees incurred will continue to be included, while statutory interest and court costs will not.  To the extent the general rules are not in conflict with rules 508, 509, and 510, they will apply to debt claims, repair and remedy claims, and eviction claims.   To the extent that rules 508, 509, or 510 conflict with the general rules, the specific rules shall control.

Debt claims will be primarily governed by rule 508, and will apply to any lawsuits brought to recover a debt by an assignee of a claim, a debt collector or collection agency, a financial institution, or a person primarily engaged in the business of lending money at interest.  These cases will typically involve unpaid credit card claims involving not more than $10,000.00 (as calculated in small claims cases).

Repair and remedy cases will be primarily governed by rule 509, and will apply to lawsuits filed by a residential tenant under Subchapter b of Chapter 92 of the Texas Property Code to enforce a landlord’s duty to repair or emery a condition which materially affects the physical health and safety of an ordinary tenant.  An associated monetary claim will not be allowed to exceed $10,000.00 (as calculated in small claims cases).

Eviction cases will be primarily governed by rule 510, and will apply to any lawsuits brought to recover possession of real property under Chapter 24 of the Texas Property Code.  If not more than $10,000.00 in unpaid rentals (as calculated in small claims cases) is sought, then a rent claim may be joined in the eviction suit.

All other rules of civil procedure and rules of evidence not included in rules 500-510 will typically not apply in justice courts.  The  judge will continue to be able to develop the facts of the case, including questioning witnesses or parties and summoning witnesses to appear.  pretrial discovery may be allowed so long as the judge considers it reasonable and necessary, and only after written court approval is obtained.

For all cases filed in justice court on or after August 31, 2013, the new rules will apply.  For cases which were filed prior to August 31, 2013, and not concluded by that date, the Supreme Court has authorized the justice courts to continue using the old rules where the use of the new rules would not be feasible or would work injustice.  Hopefully, the transaction will be smooth, and practice in the justice courts will continue to be affordable and efficient way to resolve smaller disputes.

Scott Alagood is Board Certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at alagood@dentonlaw.com and www.dentonlaw.com.

 

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