Opinion issued July 24, 2014.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00706-CV
                           ———————————
                      STEPHEN J. HARPER, Appellant
                                       V.
                 SPENCER & ASSOCIATES, P.C., Appellee



             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                        Trial Court Case No. 709957



                                 OPINION

      Stephen J. Harper appeals the trial court’s order granting Spencer’s motion

for scire facias to revive a dormant judgment against Harper. Harper contends that

the August 2001 writ of garnishment issued by the trial court was not a “writ of
execution” that extended the enforceability of the judgment for an additional ten

years beyond the date of the writ’s issuance and that, as a result, the judgment had

been dormant for more than ten years and could not be revived. See TEX. CIV.

PRAC. & REM. CODE ANN. § 34.001(b) (West 2008). We hold that the writ of

garnishment qualifies as a writ of execution for purposes of section 34.001(b); we

therefore affirm.

                                   Background

      During the 1990’s, Spencer provided legal services to Seven Oaks Farms,

Ltd. and Harper, both individually and in his capacity as president of Seven Oaks.

When Harper failed to pay the fees owed for the representation, Spencer sued for

breach of contract. Spencer prevailed. In 1999, the trial court signed a judgment

awarding him $33,237.28 plus ten percent annual interest, court costs, and $5,000

in attorney’s fees in this case (Case Number 709,957) (the original judgment).

      This appeal is from one of several actions Spencer has filed in Harris County

Court Number One in an effort to collect on the original judgment, to no avail. In

addition to other debt collection actions, Spencer sued in Harris County Civil Court

at Law Number One for two charging orders. The first sought a charging order

against Stephen Harper individually, the Steve J. Harper Family Limited

Partnership, and ZO Resources—entities that Spencer learned, through post-

judgment discovery, in which Harper had membership or ownership interests. In

                                         2
that action (Case Number 741,179) the trial court granted the charging order in

March 2001. It also sanctioned Harper for post-judgment discovery violations in

connection with Spencer’s efforts to collect on the original judgment, requiring

payment of $3,000 as reimbursement for the attorney’s fees that Spencer incurred

in the discovery dispute.

      Spencer procured the second charging order against Steve J. Harper Family

Limited Partnership, also in March 2001, under Cause Number 741,775. This

charging order sanctioned Harper’s post-judgment discovery conduct, awarding

Spencer $3,000 in additional attorney’s fees.

      The revival dispute forming the basis of this appeal centers on a writ of

garnishment issued to Spencer in October 2001 under Case Number 709,957-801;

thus, a writ in an ancillary action related to the original suit. The writ named

Broadway Bank as garnishee. Referencing the first charging order, Spencer sought

to garnish an account held in the name of ZO Resources. The trial court granted

the application; the constable executed the writ. In June 2002, the parties and the

trial court signed an agreed judgment providing that ZO Resources owed Spencer

$3,354.25; the order required the bank to deliver that amount to Spencer.

      In July 2013, Spencer sought the appointment of a receiver to aid in

collection on the original judgment against Harper. When Harper responded that

the judgment had become dormant, Spencer, based on the writ of garnishment,

                                         3
applied for scire facias to revive the judgment.      The trial court granted the

requested relief.

                                    Discussion

      Harper contends that the trial court erred in reviving the judgment because it

had been dormant for more than twelve years; in particular, he challenges the trial

trial court’s implicit finding that the October 2001 writ of garnishment action

involving Broadway Bank qualified as a “writ of execution,” sufficient to revive

the judgment under Texas law.

Applicable law and standard of review

      Chapter 34 of the Civil Practice and Remedies Code, governing the

execution of judgments, provides: “If a writ of execution is not issued within 10

years after the rendition of a judgment of a court of record . . . , the judgment is

dormant and execution may not be issued on the judgment unless it is revived.”

TEX. CIV. PRAC. & REM. CODE § 34.001(a). Thereafter, a judgment creditor may

renew it “indefinitely by having a writ of execution issued within ten years of the

previous writ” to prevent the judgment from becoming dormant. Cadle Co. v.

Fahoum, No. 2-06-459-CV, 2008 WL 754992, at *2 (Tex. App.—Fort Worth Mar.

20, 2008, no pet.) (mem. op.); see TEX. R. CIV. P. 34.001(b).

      Once it becomes dormant, a judgment can be “revived” by a petition for writ

of scire facias or an action of debt. A creditor must bring either type of action no

                                         4
later than two years after the judgment becomes dormant. Id. § 31.006. Section

31.006 has the effect of creating a twelve-year residual limitations period for final

judgments. Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17 (Tex. App.—Dallas

2007, pet. denied); Longhurst v. Clark, No. 01-07-00226-CV, 2008 WL 3876175,

at *2 (Tex. App.—Houston [1st Dist.] Aug. 21, 2008, no pet.) (mem. op.).

      In determining whether to revive a dormant judgment, a trial court considers

the date of the judgment, evidence of any writs of execution issued on the

judgment, and the date of the motion to revive. See TEX. CIV. PRAC. & REM. CODE

ANN. § 31.006; Cadle Co. v. Rollins, No. 01-09-00165-CV, 2010 WL 670561, at

*2 (Tex. App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op.); see also

Trad v. Colonial Coins, Inc., No. 14-02-00172-CV, 2003 WL 124680, at *2 (Tex.

App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.) (stating that

because appellant timely filed motion for scire facias, the judgment “should be

revived,” and indicating that revival of judgment is not discretionary if statutory

requirements to revive dormant judgment are satisfied).

      Whether the writ of garnishment executed on Broadway Bank to recover

assets held in an account by ZO Resources satisfies the statutory requirement of a

writ of execution issued on the original judgment is a question of law we review de

novo. See Tex. Lottery Comm’n v. First State Bank of Dequeen, 325 S.W.3d 628,

635 (Tex. 2010).

                                         5
Defining a “writ of execution”

      Harper first contends that a writ of garnishment action does not qualify as a

“writ of execution” for purposes of extending the life of a judgment. Thus, we first

consider whether Chapter 34’s reference to a “writ of execution” encompasses a

writ of garnishment. Our rules of civil procedure define “an execution” as

      a process of the court from which it is issued. The clerk of the district
      or county court or the justice of the peace, as the case may be, shall
      tax the costs in every case in which a final judgment has been
      rendered and shall issue execution to enforce such judgment and
      collect such costs . . . [J]udgments of the district, county, and justice
      courts shall be enforced by execution or other appropriate process.
      Such execution or other process shall be returnable in thirty, sixty, or
      ninety days as requested by the plaintiff, his agent or attorney.

TEX. R. CIV. P. 621, 622. The rules thus define an execution as a process, issued

by a court, executed through a Texas sheriff or constable or other appropriate

means for purposes of collecting on a judgment. TEX. R. CIV. P 629.

      Garnishment is one means of collecting on a judgment. It is a statutory

remedy available to a judgment debtor against a third party who is in possession of

the judgment debtor’s nonexempt personal property. See Bank One, Tex., N.A. v.

Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992); Bank One, N.A. v.

Wohlfahrt, 193 S.W.3d 190, 194 (Tex. App.—Houston [1st Dist.] 2006, no pet.);

see generally TEX. R. CIV. P. 657–679; TEX. CIV. PRAC. & REM. CODE ANN.

§ 63.001. Upon service of the writ of garnishment, assets of the judgment debtor

in the possession of the garnishee are brought “within the control of the court.”

                                         6
Tex. Commerce Bank-New Braunfels, N.A. v. Townsend, 786 S.W.2d 53, 55 (Tex.

App.—Austin 1990, writ denied). Service of the writ of garnishment creates a lien

on the judgment debtor’s property, impounding the funds in the hands of the

garnishee bank. Rome Indus., Inc. v. Intsel Sw., 683 S.W.2d 777, 779 (Tex.

App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). Through strict compliance

with the garnishment statutes, a plaintiff in garnishment steps into the shoes of his

debtor as against the garnishee, and may enforce, as against the garnishee, any

rights the debtor could have enforced against the garnishee directly. Rowley v.

Lake Area Nat’l Bank, 976 S.W.2d 715, 718–19 (Tex. App.—Houston [1st Dist.]

1998, pet. denied); Baytown State Bank v. Nimmons, 904 S.W.2d 902 (Tex. App.—

Houston [1st Dist.] 1995, writ denied); see Beggs v. Fite, 106 S.W.2d 1039, 1042

(Tex. 1937).

      The Finance Code governs the writ of garnishment issued in this case. See

TEX. FIN. CODE ANN. § 59.008 (West 2013). A bank will comply with a writ of

garnishment without requiring formal execution, unless the judgment debtor-

customer seeks to block the bank’s compliance with the garnishment judgment.

See TEX. FIN. CODE ANN. § 59.008(c) (explaining that “[t]he customer bears the

burden of preventing or limiting a financial institution’s compliance with or

response to a claim made subject to this section by seeking an appropriate remedy,

including a restraining order, injunction, protective order, or other remedy, to

                                         7
prevent or suspend the financial institution’s response to a claim against the

customer”). Neither Harper nor ZO Resources opposed the writ of garnishment;

the trial court signed an agreed judgment ordering the Bank to pay Spencer the

funds available in ZO Resources’ account.

      Harper contends that the writ of garnishment is not a “writ of execution” as

the statue requires for extending the life of a judgment. He relies on Shields v.

Stark, 51 S.W. 540 (Tex. Civ. App.—Fort Worth 1899, no writ), to support his

position. Significantly, Shields predates the enactment of the Texas Rules of Civil

Procedure, including Rule 622’s definition of execution as a judicial process

directing the enforcement of a judgment. See TEX. R. CIV. P. 622.          Shields

involved an 1885 judgment rendered against J.T. Walters’s wife, which Stark had

obtained through an assignment in 1896. Id. at 540. When Stark sued to recover

on the judgment, Shields responded that the judgment was dormant. Id. The trial

court concluded that a writ of garnishment, issued in 1895, kept the judgment from

becoming dormant, but the court of appeals disagreed. Id. It held that the writ of

garnishment was not “in any sense an execution” and the record showed no

judgment or execution in the garnishment suit; as a result, the court of appeals

concluded that Stark did not demonstrate any action in furtherance of collecting on

the original judgment. Id.




                                        8
      We disagree that the analysis in Stark applies in the present case. Unlike

Stark, the record in this case shows that the trial court granted the writ and the

garnishment order was executed.        And, under our modern rules, a “writ of

execution” as used in context, can be read to encompass multiple specific forms of

judicial enforcement of a judgment. As the Eastland Court of Appeals observed in

In re V.R.N., Texas courts have held that a variety of judgment collection activities

may revive a judgment. 188 S.W.3d 835, 837 & n.1 (Tex. App.—Eastland 2006,

pet. denied); see, e.g., Williams v. Masterson, 306 S.W.2d 152, 155–56 (Tex. Civ.

App.—Houston 1957, writ ref’d n.r.e.) (holding that section 34.001’s predecessor

included writs of possession within the statutory term “execution”); Swafford v.

Holman, 446 S.W.2d 75, 80 (Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.) (order

of sale); Grissom v. F.W. Heitmann Co., 130 S.W.2d 1054, 1056–57 (Tex. Civ.

App.—Galveston 1939, writ ref’d) (alias execution); Ludtke v. Bankers’ Trust Co.,

251 S.W. 600, 604 (Tex. Civ. App.—Galveston 1922, writ ref’d) (writ of

venditioni exponas). We hold that the writ of garnishment in this case satisfies the

statutory requirement that it be a writ of execution.

Relation to the original judgment

      Harper next complains that, because the writ of garnishment refers to the

attorney’s fees awarded in the first charging order and not expressly to the funds

awarded in the original judgment, which was designated with a different cause

                                          9
number, Spencer cannot revive the original judgment. We disagree. First, the

attorney’s-fee award in the first charging order resulted from Harper’s obstructive

behavior in response to Spencer’s efforts to collect on the original judgment. It

was part and parcel of Spencer’s collection efforts on the original judgment.

Second, the proof supporting the writ of garnishment traced the garnished funds to

Harper, the judgment debtor in the original judgment.         That the assets only

satisfied some of the attorney’s fees that Spencer incurred in post-judgment

discovery, and were insufficient to discharge the original judgment debt itself, does

not sever the garnishment’s connection to the original judgment, from which all

liability for the judgment and post-judgment attorney’s fees arose. We hold that

the record supports the trial court’s determination that the garnishment action was

executed in furtherance of collection of the underlying judgment.

      Once Spencer executed the writ of garnishment on assets belonging to

Harper, Spencer was not required to undertake the further exercise of obtaining a

writ of execution directly against Harper to keep the original judgment from

becoming dormant. See Kelly v. Gibbs, 19 S.W. 563, 564 (Tex. 1892) (reasoning

that garnishment is just a method of enforcing execution); Baca v. Hoover, Bax, &

Shearer, 823 S.W.2d 734, 740 (Tex. App.—Houston [14th Dist.] 1992, writ

denied) (same). Accordingly, we reject Harper’s contention that the trial court

erred in reviving the original judgment.

                                           10
                                   Conclusion

       The trial court properly revived the dormant judgment. We therefore affirm

the order of the trial court.




                                            Jane Bland
                                            Justice

Panel consists of Justices Keyes, Bland, and Brown.




                                       11
