Untitled Texas Attorney General Opinion ( 1974 )

November 12. 1974
Tke Honorable Ned Granger Opinion No. H- 449
County Attorney
Travis County Courthouse Re: May an officer force his
Austin, Texas 78701 way into a person’s resi-
dence to seize property
that is subject to a writ
of attachment or other
similar process, and
Dear Mr. Granger: related questions.
You have requested our opinion concerning the execution of process
in civil cases. Your first questions are:
May an officer force his way into a person’s
residence to seize property that is subject
to a writ of attachment or other similar pro-
cess? May he do so in order to eject a party
from the premises pursuant to a writ of resti-
tution obtained in a judgment in a forcible entry
and detainer action?
The specific question of an officer’s authority in the execution of writs
for personal property was decided in Hillman V. Edwards. 66 S. W. 788(Tex. Civ. App., 1902, no writ). The court stated the rule to be:
It is a well-settled rule of co-on law
that in the execution of civil process an officer
is not authorized to break open an outer door,
or raise a window, or forcibly enter the dwelling
house of the defendant in execution, used and
occupied as such by him, without his consent. If
he gains admission without force, he may go from
room to room, or forcibly enter an inner room, or
break open trunks, wardrobes, etc., for the pur-
pose of a necessary levy. Ia at 789.
p. 2071
The Honorable Ned Granger. page 2 (H-449)
Hillman is the only Texas case in which this issue has been
decided but the rule has more recently been acknowledged in Attorney
General Opinion M-285 (1968), and in Singer Sewing Machine v. Mendoza,
62 S. W. 2d 656 (Tex. Crim. App. --San Antonio, 1933). rev’d. on other
grounds, 84 S. W. 2d 715 (Tex. 1935). In the latter case, officers who
forcibly entered a dwelling to serve a writ of sequestration were acknowl-
edged to be liable for abuse of process and assault, and the issues on
which the case was reversed involved only the joint liability of third
parties.
While the rule is not frequently discussed in reporied cases, it
is generally recognized in United States jurisdictions. The most recent
application of the rule is found in Vanden Bogert V. May, 55 N. W. 2d 115(Mich. 1952). See 33 C. J.S. Executions Sec. 96 (1942); 30 Am. Jur. 2d
Executions Sec. 261 (1967); 52 Tex. Jur. 2d Sheriffs, etc. Sec. 30 (1964).
In Hillman the court rejected a contention that there is an exception
to the rule where specific personal property is sought, and held that in
no case may an officer break into a dwelling to seize personal property
under civil process.
In the case of the execution of a valid writ or order of a court to
evict the possessor of land or put another in possession, an officer may,
after making a fruitless demand for the possessor to remove himself,
employ such force to the person.of the possessor or to the premises as
is reasonably necessary to carry out the court’s order. Semayne’s Case,
5 Coke 91b (King’s Bench 1603); Howe V. Butterfield, 4 Gush, 302, 50
Am. Dec. 785 (Mass. 1849); Fry V. Taylor, 138 A. 138 (Corm. 1927);
Nourse V. Lycett, 159 A. 277 (Corm. 1932); State V. Frandsen, 30 P. 2d
371 (Wash. 1934); 3 Freeman on Executions, Sec. 473 (3rd ed. 1900);
3A Thompson on Real Property, Sec. 1370 (1959); 1 Harper & James,
The Law of Torts, Sec. 1. 19 (1956); Restatement (Second) of Torts,
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The Honorable Ned Granger page 3 (H-449)
Sec. 210 (1965); cf. Patton V. Slade, 38 S. W. 832 (Tex. Civ. App.,
1897, no writ) (wTt of sequestration): Modesett v. Emmons, 292 S. W.
855 (Tex. 1927).
You further ask whether the types of dwelling involved is of sig-
nificance. The rule regarding execution on personal property is stated
in terms prohibiting the breach of the outer door of a dwelling. Despite
some authority to the contrary, in the case of a building leased in distinct
portions to several tenants where the outer door of the building and hall-
ways are used in common, the doors leading into a tenement or apart-
ment in the sole and exclusive possession of a tenant are to be regarded
as outer doors which an officer has no right to break open. Swain v.
Mizner, 8 Gray 182, 69 Am. Dec. 244 (Mass. 1857); Schork V. Calloway,
265 S. W. 807 (KY. 1924); 30 AM. JUR. 2d, Executions, Sec. 262 (1967);.
33 C. J.S. Executions, Sec. 96 n. 67, p. 242 (1942); Annot., A. L. R. 210,
216 (1928); Contra Cantrell V. Conner, 6 Daly 39 (N. Y. 1875).
Your next question asks what alternatives are available when a
defendant avoids execution by refusing to allow the officer to enter his
dwelling. In light of our answer concerning an officer’s authority pur-
suant to a writ of restitution to obtain possession of real property, we
limit our answer to executions on personal property in a dwelling.
Without attempting to exhaust all possible alternatives, we note
the following: In a proper case, a defendant may be held in constructive
contempt for disobedience of process. The procedure to be followed is
set out in Ex Parte Pyle, 133 S. W. 2d 565 (Tex. 1939). See also, Ex parte
White, 229 S. W. 2d 1002 (Tex. 1950). See generally, H. Lowe, REMEDIES
ch. 4, Contempt, $ 541 et seq., (2d ed. 1973) ; 4 R. STAY TON, TEXAS
FORMS, ch. 20, w, $2081 et seq. (1959~ & Supp. 1974). When
personal property has “especial value” to the plaintiff, that is, value
other than monetary, Ex Parte Prickett, 320 S. W. 2d 1 (Tex. 1958), the
court may award a special writ for the seizure and delivery of the property
to the plaintiff and may enforce its judgment by attachment, fine and
imprisonment. Rule 308, Tex. R. Civ. P.
Depending on the facts of the particular case, the defendant’s conduct
may constitute a criminal offense, such as hindering secured creditors,
Sec. 32.33, V. T. P. C., or theft on a conversion theory, Sec. 31.03, V. T. P. C.
p. 2073
The Honorable Ned Granger page 4 (H-449)
,
SUMMARY
An officer may not break into a dwelling in
order to execute a writ on personal property.
He may employ such force as is reasonably
necessary to carry out a court order concerning
possession or restitution of real property. An
uncooperative defendant may be held in constructive
contempt. A special writ may issue for personal
property of “especial value ” to the plaintiff, and
refusal to deliver secured personal property may
constitute a criminal offense.
Very truly yours,
Attorney General of Texas
APP V D:
&&fFifg
DAVID M. KENDALL, Chairman
Opinion Committee
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p. 2074