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Explained: Writs of Garnishment v. Writs of Execution

You've won a judgment. Now, how do you collect on it? Texas offers two significant forms of collection for parties who've won a judgment (i.e. judgment creditor) in Court: a Writ of Garnishment and a Writ of Execution. Learn the difference in these and the circumstances for when each should be used.

rendered.jpgWrit of Garnishment

A Writ of Garnishment allows a judgment creditor limited access to the judgment debtor's account, as explained in further detail below.

Once a judgment creditor has a judgment, it may petition the Court for a writ of garnishment, including the original judgment debtor, and the judgment debtor's financial institution (i.e., bank). The only way to petition for a writ of garnishment is if the judgment creditor has obtained the judgment debtor's banking information.

If a judgment creditor has been paid by check from the judgment debtor, enough information can be found to apply for a writ of garnishment. Essentially, the judgment creditor will need the following information:

  • The name of the financial institution
  • The name(s) on the accounts held by the financial institution
  • The registered agent and address of the financial institution
  • A copy of the final judgment

Once the clerk issues the writ, the judgment creditor needs to ensure the financial institution is served with it. If there is an account, and funds, the account will be frozen. Any funds in the account will be garnished up to the amount owed in the judgment, minus any fees the financial institution charges to carry out the writ.

If the account does not have enough funds to satisfy the judgment, the account will be garnished up to the amount it holds, minus any fees the financial institution charges to carry out the writ. In the latter case, a judgment creditor may look to a different form of collection.

Writ of Execution

Sometimes you have no way of knowing the banking information of the judgment debtor, or you happen to know the judgment debtor does not hold any accounts in a financial institution. If this is the case, you may try and collect by applying for a writ of execution.

You would only apply for a writ of execution if you knew the judgment debtor has non-exempt personal or real property in the county where you file. You may want to do some background research on your judgment debtor before applying for a writ of execution, to be sure eligible property is available.

In order to apply for a writ of execution, the judgment creditor needs to be sure to abstract the final judgment in the appropriate county. Some counties provide forms for applying for a writ of execution.

Call the court clerk to be sure about the appropriate process for requesting a writ. Once the application or request has been submitted to the clerk, the clerk will issue the writ to the judgment creditor.

When the judgment creditor receives the writ, he may send it to the constable or sheriff of the county where the property lies. The officer will then take the writ to the property to levy and eventually sell it to the highest bidder, after notice has been given. Depending on the rules of the county, the judgment creditor may need to wait several weeks before receiving the proceeds of any sale that resulted from a writ of execution.

If the sale of one property did not meet the amount due and owing under the judgment, the judgment creditor may request a writ on other eligible properties until said judgment has been paid in full. Or, the judgment creditor can hold on to the judgment, allowing it to collect interest (if the judgment allows). 

Once the judgment creditor knows the debtor has available funds or eligible property, and apply for either writ. Either writ must be issued within ten years of the date the judgment was given.

Still have questions?

We're happy to answer all your questions. Give us a call at (713) 715-7334 or post your question in the comments.

 

This article is intended as a general educational overview of the subject matter and is not intended to be a comprehensive survey of recent jurisprudence, nor a substitute for legal advice for a specific legal matter. If you have a legal issue, please consult an attorney.

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