Texas does not permit wage garnishment against you as a judgment debtor unless your judgment is for court-ordered child support or spousal maintenance. But, Texas does authorize a bank garnishment to collect civil money judgments.
What Is a Bank Account Garnishment?
A bank account garnishment just means that your judgment creditor can, after filing with the court, confiscate your checking account and apply the proceeds to what you owe on a legitimate, uncollected judicial judgment. Generally speaking, garnishment permits the plaintiff to take possession of any type of property you possess that is in the possession of a third party.
Bank account garnishment works because the bank is actually holding your money in an account. Essentially, the bank is indebted to you and the plaintiff is asking that the funds the bank owes you be rerouted to pay off your judgment.
When Is a Bank Account Garnishment Possible?
Your judgment creditor may pursue a bank account garnishment only in specific circumstances. Allow me to explain those circumstances.
1. The person seeking a bank garnishment against you must have a valid, final, and subsisting judgment against you in a Texas court. See Texas Civil Practice & Remedies Code § 63.001 (3).
A judgment is final and subsisting for garnishment purposes when it is signed by the judge. See Texas Rules of Civil Procedure 657. Thus, effectively, on the day the judge signs the order against you your judgment creditor may apply for a bank garnishment writ as long as each of the requirements of garnishment are satisfied.
2. Your judgment creditor cannot get a writ of garnishment to get your bank accounts if you have filed an approved supersedeas bond to suspend execution on the judgment. See Texas Rules of Civil Procedure 657.
3. The judgment creditor must sign an affidavit attached to the application for writ of garnishment.
In that affidavit the judgment creditor must take an oath that, to his knowledge, you do not possess in the State of Texas adequate property subject to execution to satisfy the judgment. See Texas Civil Practices & Remedies Code § 63.001 (3).
The judgment creditor does not need to demonstrate that you do not have adequate property in the state to satisfy the judgment, but he must state that, to his knowledge, you do not have enough property.
What Can You Do About a Bank Garnishment?
There is no guarantee that you can defeat a bank garnishment in Texas. If you are obligated on a judgment; however, there are several things you should do to make certain your judgment creditor heeds both the letter of the law and the spirit of the law while pursuing collection of that judgment.
If, for instance, you do own nonexempt property in Texas that may be taken by a writ of execution and your judgment debtor files a writ of garnishment your judgment creditor could be found liable for a wrongful garnishment. Remember, the judgment creditor has to sign an affidavit wherein he states under oath that to his knowledge you do not own sufficient property subject to execution to pay the judgment.
Therefore, if that statement is untrue, the judgment creditor may possibly be liable for a wrongful garnishment even when he had probable cause to believe the statement was true and he did not act maliciously. See Peerless Oil & Gas Co. v. Teas, 138 S.W. 2d 637, 640 (Tex. Civ. App.-- San Antonio 1940), aff 'd, 158 S.W. 2d 758 (Tex. 1942). However, the law is very clear that a wrongful garnishment happens when your judgment creditor in fact knows you have property inside Texas that is subject to execution adequate to satisfy the judgment but he goes forward with a garnishment instead. See King v. Tom, 352 S.W. 2d 910, 913 (Tex. Civ. App.-- El Paso 1961, no writ); Griffin v. Cawthon, 77 S.W. 2d 700, 702 (Tex. Civ. App.-- Fort Worth 1934, writ ref 'd).
Your judgment creditor has a duty to make a reasonable inquiry to figure out whether you have any sort of nonexempt property in the State of Texas that he can seize by using a writ of execution. See Massachusetts v. Davis, 160 S.W. 2d 543 (Tex. Civ. App.-- Austin), aff 'd in part and rev 'd in part on other grounds, 168 S.W. 2d 216 (Tex. 1942), cert. Denied, 320 U.S. 210 (1943).
The way your judgment creditor may make a reasonable investigation is usually with Interrogatories in Aid of Judgment. If you get such interrogatories, it is your obligation to respond to them completely and truthfully under oath. You cannot hide your assets and then make a claim that your judgment creditor wrongfully garnished your bank account.
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