The Honerable Bob Bullock           'Opinion No. 8-827
Comptroller of Public Accounts
L.B.J. State Office Building         Re: May a c&stable
Austin, Texas 78701                 :properly refut%e to levy
                                     on personal property to
                                     satisfy a tax judgment
                                     .unless an indemnity bond
                                     from the taxing authority
                                     is received.
Dear Mr. Bullock:
     Your letter asks:
          1. Can a levying officer require an
          indemnity bond from the State of Texas
          before levying on personal property
          pursuant to a writ of execution in'
          favor of the State [for taxes]?

          2. Can a levying officer require an
          indemnity bond from a City before
          levying on personal property pursuant
          to a writ of execution in favor of the
          City [for taxes]?
     You explain that the State of Texas and the City of
Houston joined to sue a delinquent taxpayer. A default
judgment was obtained and a writ of execution was subsequently
delivered to a constable in Houston where non-exempt
property of the judgment debtor was thought to be located.
The constable located only some personal property possibly
owned by the debtor. Because he is apprehensive that he may
be required to defend himself againat a charge of unlawful
seizure, the constable has asked that he be furnished an
indemnity bond before levying on the property.




                          p. 3491
The Honorable Bob Bullock - page 2 (H-827)


     It is the duty of sheriffs and constables to properly
execute process and precepts lawfully directed to them by
courts.        S. Miller Company v. Evans, 452 S.W.Zd 426
(Tex. Sup.
         =%   OF -S.       arts. m6885,73;   Attorney General
Opinion H-595 (1975). The powers of both officers with
respect to executing writs are generally the same. See 52
Tex.Jur.Zd, Sheriffs, 'Constablesand Marshalls 99 8,71T
Both are liable to the judgment creditor if they fail or
refuse to levy upon property subject to execution. V.T.C.S.
arts. 3825, 3826, 6887. And both may be liable in trespass
for actual and exemplary damages to the owner of personal
property wrongfully seized. 52 Tex.Jur.Zd, Sheriffs,
Constables and Marehalls SS 21, 25, 89.
     A person against whose personal property a wrongful
levy is made also has a cause of action in trespass against
a creditor who directs or participates in the improper levy.
Stevens --v. Wolf, 14 S.W. 29 (Tex. Sup. 1890); Wollner v.
Darnell, 94 s.w .2d 1225 (Tax. Civ. App. -- Amam9=,              no
writ);See also Southwest Bank & T. Co. v. Executive1
SportsmrAm,        411 S .W .2hVlOT ?% m.ma      896  (Tf !X. civ.
APP. --Dalm972,       writ   ref'd n.r.e.); McAde:n V.-Soil
                             394 S.W.Zd 662 (Tex. -cT;.naa.
                                                   ____ __r_ --
                            i 24 Tex.Jur.Zd, Executions 99-194,
196; Jarvis, Creditor's Liability in Texas for Wrongful
Attachment, Garnishment, or Execution, 41 Tex.L.Rev; 692,
708-709 (1963).
     The officer to whom execution has been delivered must
proceed without delay to levy upon the property of the
defendant as directed by the writ, but if the creditor-
plaintiff gives him other or different lawful directions, he
must obey them.                        Tex. _397
                                              - .(1883);
Tex. R. Civ. P. 6
S 6.  Notwithstanding such directions, however, if the
officer in good faith entertains a reasonable doubt as to
the ownership or exempt character of the personal property
to be eeized or the legality of its seizure, h;ly;isr;quire
indemnity of the creditor before proceeding.
Fitzgerald, 11 Tex. 417 (1854); Rankin v. Belvm7*.W.?d
908 (Tex. Civ. App. -- Houston r-i=.=,             writ ref’d
n.r.e.)J Fant Millin Co. v. Ma
App. -- Dmsdwn            ,fTar;l.:"~.sIWg:dT~~SJtl~f)~d,Civ.
Sheriffs, Constables and Marshalls 99 51, 52, 53. Indemnity,
when given, protects the officer in case his authority to
make the levy is later questioned.


                            p. 3492
The Honorable Bob Bullock - page 3 (H-827)


     More than one hundred twenty years ago, the Illies
court, like other courts since, said that an officerfdced
with the dilemma of being liable to the creditor if he 'fails
to ~levyon available property of the debtor, butliable to
the debtor or a third person if he attempts to levy on
property legally unavailable to satisfy the debt, may properly
shift the risk of litigation to the creditor demanding the
levy if the legal availability or non-availability of the
property,for levy is genuinely subj,ectto reasonable doubt.
Failure to allow such a course would cause rank injustice.


     In our opinion, the peril of the levying officer is the
same when the state or another taxing authority is the
judgment creditor. If he fails to properly execute the
writ, he will be liable to the taxing authority under,the
statutes, and if he levies on personal property not legally
available to satisfy the debt he will be liable to the
person harmed.
      If the sheriff or constable acts improperly at the
direction of an officer of the creditor-taxing authority,
the person harmed is prevented by the doctrine of govern-
mental immunity from suing the taxing unit for dsmages, but
not from suing the officer directing him to so act. Black
v. Baker, 111 S.W.Zd 706 (Tex. Sup. 1938). An officer
participates in the commission of a trespass without legal
authoritv is oersonallv liable         as a tortfeasor and is not
protected fro; suit by-the immunity of the governmental uni.t
for which he purports to act. Griffin v. Hawn, 341 S.W.Zd
151 (Tex. Sup. 1960); Cobb v. Harrin toTiTmS.W.2d             709
 (Tex. Sup. 1945); State--'+.2d
                            v.
                            --     Lain,            272 (Tex.  Civ.
App. --  Waco  1960),$ff'd,        349 S.W.2d 579 (1961); Worsham  \r.
Votasberaer.,129 S.W. 157 (Tex. Civ. App. -- 1910, no writ1T
Attornev
   ------*General Letter Advisory No. 24 (1973); 47 Tex.Jur.826,
P'ublicOfficers 9 130 at 170. --       See also Burton v.
                                                       - Rogers,
504 S.W.2d 404 (Tex. Sup. 1974); W.D. IiadenSRyv-   Cornan
Dodgen, 308 S.W.Zd 838 (Tex. Sup.mB);r               en o Realty
Corporation " Avila, 406 S.W.Zd 523 (Tex. Civ. App. --
  Corpus Christi1966, no writ); Calvert v. Harris Count
Water Control k s      pist., 368 S.W.2d 8'55=C           dP.
                                                           v.        --
  Austin 1963. writ relPTii1r.e.l.         Since no officer of h-
taxing unit has legal authority-to direct a sheriff or




                              p. 3493
The Honorable Bob Bullock - page 4 (H-827)


constable to do an illegal act , an officer of a'taxing
authority who demands that a sheriff or constable levy upon
personal property shown to have been legally unavailable for
levy exceeds the legitimate power of his own office and is
personally liable for the harm done. - See Black k Baker,
supra.
     Sheriffs and constables are already protected by law
against the risks of litigation arising from the proper dis-
charge of their duty. Not only are they protected by the
doctrine of governmental immunity against liability for acts
done within the scope of their authority, they are entitled
to legal representation at the expense of the county in
litigation arising from such acts. Turner v. Cook, 502
S.W.2d 824 (Tex. Civ. App. -- CorpusChristilm      no writ);
V.T.C.S. art. 332~; Attorney General Letter Advisory No. 24
(1973). See also Attorney General Opinions H-544 (1975), H-
70 (1973)t7Tex.Jur.Zd,    Public Officers S 130.
     When a constable or sheriff is met with a demand by an
officer of a taxing authority that he levy upon personal
property concerning which there is a genuine reasonable
doubt about its legal availability for levy, we think the
constable or sheriff may properly require an indemnity bond
from the demanding officer -- but not from the taxing unit --
before proceeding. Cf. V.T.C.S. art. 279a; Attorney General
Opinion S-71 (1953).-
     If a sheriff or constable fails or refuses to levy upon
legally available personal property of the debtor without a
leaallv sufficient reason, the creditor-taxina authority may
recove; its loss from him; even though he may-have unsuccessfully
demanded indemnity. Rankin v. Belvin, supra. But if his
reason for reluctancetdvyisicient,           he may properly
refuse to make the levy until the risk of illegality is
shouldered bv the official who demands that he do so.
Illies 5 Fi%sgerald, supra.




                          p. 3494
The Honorable Bob Bullock - page 5 (H-827)



                        SUMMARY

            When a constable or sheriff is met with
            a demand by an officer of a creditor-
            taxing authority that he levy upon
            personal property concerning which there
            is a genuine reasonable doubt about its
            legal availability to satisfy the judgment
            against the taxpayer-debtor, he may properly
            require an indemnity bond from the demanding
            officer as an individual, but not from the
            taxing authority for which the officer
            purports to act.

                                  /\Very   truly yours,




APPROVED:




jwb




                             p. 3495
