                             NUMBER 13-15-00055-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

ROSE CRAGO,                                                                    Appellant,

                                             v.

JIM KAELIN,                                                                     Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION
              Before Justices Garza, Benavides and Longoria
                  Memorandum Opinion by Justice Garza
       Appellant Rose Crago sued appellee Jim Kaelin, the Nueces County Sheriff,

alleging that Kaelin improperly failed to seize certain real property pursuant to a lawfully-

issued writ of execution. The trial court granted summary judgment in favor of Kaelin,

and Crago contends on appeal that the trial court erred. We reverse and remand.
                                      I. BACKGROUND

       In 2007, Crago obtained a judgment against David Crago (“David”) in the amount

of $120,000 plus interest and costs. Crago then requested that the trial court clerk issue

a writ of execution on certain Nueces County real property owned by David. The writ of

execution was issued by the clerk on January 5, 2012 and was delivered to Kaelin on

January 23, 2012. Crago alleged in her original petition, filed on January 31, 2014, that

the subject property was accessible to Kaelin, was not exempt, and was subject to

execution, but that Kaelin nevertheless refused to seize the property, and that the

judgment remains unsatisfied. Crago alleged that Kaelin was liable, in his official capacity

as sheriff, for damages under the civil practice and remedies code and local government

code. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.065(a) (West, Westlaw through 2015

R.S.); TEX. LOC. GOV’T CODE ANN. § 85.021(a), (d) (West, Westlaw through 2015 R.S.).

       Kaelin answered the suit and filed a motion for summary judgment on both no-

evidence and traditional grounds. The no-evidence portion of the motion alleged that

“there is no evidence that the property to be levied on was subject to execution; that the

officer failed or refused to levy under the writ; that Plaintiff, as judgment creditor in the

other suit, identified property for Defendant that was subject to execution; or that Plaintiff

suffered any damages from the alleged failure to levy under writ.”

       The traditional portion of Kaelin’s motion was supported by an affidavit by a

Nueces County Sheriff’s deputy stating that, according to her examination of the Nueces

County Appraisal District’s public records, the property at issue, though owned by David,

was subject to a homestead designation. The affidavit further stated: “It is the policy of

the Nueces County Sheriff’s Office not to levy on property that has been designated as



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homestead in the public records, absent a judicial determination that the real property is

not, in fact, homestead, and is non-exempt.” According to the affidavit, after determining

that the property was subject to a homestead designation, the sheriff’s office returned the

writ “nulla bona.” Kaelin’s motion alleged that the foregoing evidence “conclusively

disproves that:   Plaintiff informed Defendant of property owned by judgment debtor

subject to execution; Plaintiff suffered any actual damages as a result of Defendant's

alleged failure to levy; or Defendant failed to return the writ of execution or filed a false

return.” The motion also alleged that the evidence conclusively established a good-faith

defense under section 7.003 of the civil practice and remedies code. See TEX. CIV. PRAC.

& REM. CODE ANN. § 7.003(a) (West, Westlaw through 2015 R.S.). Finally, the motion

alleged that section 85.021 of the local government code was inapplicable because that

statute “addresses an officer’s complete failure to return a process or a sheriff’s false

return.”

       Crago filed a response noting that David’s designation of the subject property as

a homestead took place several months after she filed an abstract of the 2007 judgment

in the Nueces County public records.        She argued that the homestead designation

therefore did not render the property exempt from execution.               See Inwood N.

Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987) (“[A] previously

acquired lien, whether general or special, voluntary or involuntary, cannot be

subsequently defeated by the voluntary act of a debtor in attempting to make property his

homestead.”) (quoting Gage v. Neblett, 57 Tex. 374, 378 (1882)); see also TEX. PROP.

CODE ANN. § 52.001 (West, Westlaw through 2015 R.S.) (providing generally that an

abstract of judgment, when recorded and indexed in the public records, “constitutes a lien



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on and attaches to any real property of the defendant, other than real property exempt

from seizure or forced sale . . . , that is located in the county in which the abstract is

recorded and indexed, including real property acquired after such recording and

indexing”). The only evidence attached to Crago’s response was an affidavit by a real

estate agent stating that the value of the subject property would have been $178,000 in

2012.

        The trial court granted Kaelin’s motion and dismissed Crago’s suit. This appeal

followed.

                                      II. DISCUSSION

        Crago argues by her two issues that the trial court erred in granting no-evidence

and traditional summary judgment, respectively.

A.      Standard of Review

        We review summary judgments de novo. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman &

Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). We

take as true all evidence favorable to the non-movant and indulge every reasonable

inference and resolve any doubts in the non-movant's favor. Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 157 (Tex. 2004). When the trial court does not specify the

grounds for its ruling, as here, we must affirm the summary judgment if any of the grounds

on which judgment is sought are meritorious. Merriman, 407 S.W.3d at 248.

        In advancing a traditional motion for summary judgment, the movant has the

burden of showing there is no genuine issue of material fact and it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Joe, 145 S.W.3d at 157. An issue of fact is



                                            4
raised if more than a mere scintilla of evidence is produced. See, e.g., City of Keller v.

Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Evidence is less than a scintilla if it is “so weak

as to do no more than create a mere surmise or suspicion that the fact exists.” Regal Fin.

Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010). Evidence is more than a

scintilla if it “rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).

       A motion for no-evidence summary judgment must establish that there is no

evidence of at least one essential element of the plaintiff’s cause of action. Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).             The burden of producing

evidence is entirely on the plaintiff; the defendant has no burden to attach any evidence

to the motion, and if the plaintiff produces evidence raising a genuine issue of material

fact, summary judgment is improper. TEX. R. CIV. P. 166a(i). All that is required of the

plaintiff is to produce more than a scintilla of probative evidence to raise a genuine issue

of material fact on the challenged element. Forbes, Inc. v. Granada Biosciences, Inc.,

124 S.W.3d 167, 172 (Tex. 2003).

B.     Applicable Law

       “When an execution is delivered to an officer he shall proceed without delay to levy

the same upon the property of the defendant found within his county not exempt from

execution . . . .” TEX. R. CIV. P. 637. Under section 34.065 of the Texas Civil Practice

and Remedies Code, an officer who receives a writ of execution may be held liable for

the officer’s failure or refusal to levy on or sell property pursuant to the writ. TEX. CIV.

PRAC. & REM. CODE ANN. § 34.065(a). The statute provides: “If an officer fails or refuses

to levy on or sell property subject to execution and the levy or sale could have taken



                                              5
place, the officer and the officer’s sureties are liable to the party entitled to receive the

money collected on execution only for actual damages suffered.” Id. The judgment

creditor seeking relief under section 34.065 has the burden to prove:

       (1)    the judgment creditor has a valid judgment against the judgment
              debtor;

       (2)    the writ of execution was issued to the judgment creditor;

       (3)    the writ was delivered to the officer;

       (4)    the judgment creditor’s judgment was unpaid and unsatisfied;

       (5)    the property to be levied on was subject to execution;

       (6)    the officer failed or refused to levy under the writ; and

       (7)    the amount of actual damages suffered.

Id. § 34.065(b). Property is “subject to execution” for purposes of the statute “if the

judgment creditor proves that the judgment debtor owned the property at issue, the

property was accessible to the officer under the law, the property was situated in the

officer’s county, and the property was not exempt from execution.” Id. § 34.065(c).

       Texas Local Government Code section 85.021 provides that “[t]he sheriff shall

execute all process and precepts directed to the sheriff by legal authority and shall return

the process or precept to the proper court on or before the date the process or precept is

returnable.” TEX. LOC. GOV’T CODE ANN. § 85.021(a). Under the statute, the sheriff

commits an offense, punishable by a fine of not more than $100, if the sheriff fails to return

a process or precept as required by law, or files a false return. Id. § 85.021(b), (c).

Further, “[t]he sheriff is liable for all damages sustained by a person by reason of an

offense committed” under that statute. Id. § 85.021(d).




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C.      Analysis

        We first address Kaelin’s no-evidence motion, in which he argued that there was

no evidence (1) that the property at issue was “subject to execution,” (2) that Crago

“identified property . . . that was subject to execution,” or (3) that Crago suffered

damages.1 See TEX. CIV. PRAC. & REM. CODE ANN. § 34.065(b)(5), (7).

        The issues each turn on whether Kaelin’s office had the responsibility, under the

circumstances of this case, to confirm the validity of the homestead designation before

refusing to seize the property. Kaelin argues that it was not his “duty, or even within his

authority, to determine that the [judgment] lien in this case is valid and when it attached

to the property” because officers executing writs are not “tribunals to determine doubtful

questions of fact.” See Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 433–34 (Tex.

1970) (“A sheriff is an officer of the court, under a duty to execute process, [and] is not a

tribunal to determine doubtful questions of fact . . . .”).

        We disagree. There is no dispute that David applied for his homestead designation

several months after Crago filed her abstract of judgment in the public records. Moreover,

the summary judgment evidence established that Crago’s counsel advised Kaelin of this

fact at the time he wrote to Kaelin requesting that the subject property be seized.2 Under

well-settled law dating to the nineteenth century, “an encumbrance existing against



        1 Kaelin’s no-evidence motion also argued that there was no evidence that Kaelin “failed or refused
to levy under the writ.” See TEX. CIV. PRAC. & REM. CODE ANN. § 34.065(b)(6) (West, Westlaw through 2015
R.S.). But it is, in fact, undisputed that Kaelin “failed or refused to levy under the writ.” Kaelin’s defense is,
instead, that this failure or refusal was justified because of the homestead designation.
        2  Kaelin’s summary judgment evidence included a copy of the correspondence sent to the sheriff’s
office by Crago’s counsel. The correspondence included copies of: (1) a 2007 application for homestead
exemption filed by David pertaining to an unrelated property; (2) the abstract of judgment stating that it was
filed in the public records on May 2, 2008; and (3) a 2009 application for homestead exemption filed by
David pertaining to the subject property.

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property cannot be affected by the subsequent impression of the homestead exception

on the land.” Inwood N. Homeowners’ Ass’n, Inc., 736 S.W.2d at 635 (citing Farmer v.

Simpson, 6 Tex. 303, 310 (1851)). Accordingly, there was no “doubtful question[] of fact”

regarding the validity of David’s homestead designation—its invalidity was clear. In fact,

in order to determine whether the homestead designation was valid, Kaelin’s office was

required to do no more thorough of an investigation than its policy currently calls for—i.e.,

an examination of the public records.3 Such an examination would have revealed that

the homestead designation was filed well after the abstract of judgment and was therefore

invalid. See id.

        Crago’s counsel’s advised Kaelin, in his letter requesting seizure of the property at

issue, that the filing of the abstract of judgment preceded the filing of the homestead

designation and that the property was therefore not exempt from execution. The letter

included copies of the referenced instruments. This constituted more than a scintilla of

evidence establishing that the property at issue was subject to execution. See TEX. CIV.



        3  Kaelin also argues that our memorandum opinion in Condit v. Kaelin, No. 13-11-00327-CV, 2012
WL 3525654 (Tex. App.—Corpus Christi Aug. 16, 2012, pet. denied) (mem. op.), is controlling because it
involved “almost identical facts.” We disagree. That case also involved a lawsuit alleging that Kaelin was
liable for damages under section 34.065 for failing to seize property pursuant to a writ of execution. Id. at
*1. Kaelin contended, as he does here, that the property at issue was subject to a homestead designation
and was therefore exempt from seizure. Id. The plaintiff (who is Crago’s current attorney) argued, as Crago
does here, that the homestead designation was invalid. Id. We found that the trial court did not err in
rendering judgment for Kaelin. Id. at *4. However, Condit is distinguishable from the instant case for two
reasons. First, it was a review of a jury verdict, and we therefore reviewed the evidence “in a light most
favorable to the judgment” as opposed to the more exacting summary judgment standard of review
applicable here. See id. Second, the plaintiff in Condit argued that the homestead designation was invalid
because the homeowner abandoned the property, not because the homeowner applied for the homestead
exemption after the judgment lien was perfected. Id. at *2. Whether a homestead exemption has been lost
due to abandonment is not apparent from the public records and is arguably a “doubtful question[] of fact”
which sheriffs may not be called upon to determine. See Henry S. Miller Co. v. Evans, 452 S.W.2d 426,
433–34 (Tex. 1970). In any event, the plaintiff in Condit did not challenge the trial court’s conclusion of law
that Kaelin “had no legal duty to seek a judicial finding or to make a determination prior to execution of the
writ that the property’s homestead exemption had been lost due to abandonment.” Condit, 2012 WL
3525654, at *5. Further, there was no evidence that the sheriff’s office had ever been notified that the
property at issue was allegedly abandoned. Id. at *2 n.4.

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PRAC. & REM. CODE ANN. § 34.065(b)(5). Moreover, the letter, in combination with the

affidavit establishing the fair market value of the property as of 2012, constituted more

than a scintilla of evidence establishing “the amount of actual damages suffered” by

Crego. See id. § 34.065(b)(7). This also constitutes more than a scintilla of evidence

establishing that Kaelin filed a “false return” under section 85.021 of the local government

code. See TEX. LOC. GOV’T CODE ANN. § 85.021(b)(2). Accordingly, Kaelin was not

entitled to no-evidence summary judgment as to either statutory claim. See TEX. R. CIV.

P. 166a(i); Forbes, Inc., 124 S.W.3d at 172.

       We next address the traditional grounds for summary judgment. Kaelin argued in

his motion that his summary judgment evidence “conclusively disprove[d]” Crago’s claims

that: (1) she informed Kaelin of property subject to execution; (2) she suffered damages;

or (3) Kaelin failed to return the writ of execution or filed a false return. See TEX. CIV.

PRAC. & REM. CODE ANN. § 34.065(b)(5), (7); TEX. LOC. GOV’T CODE ANN. § 85.021(b). For

the reasons set forth above, we disagree.           Kaelin’s summary judgment evidence

established that the property at issue was subject to a homestead designation, but as we

have already determined, that did not necessarily mean that the property was not subject

to execution. And, although it is undisputed that Kaelin returned the writ, the writ was

returned “nulla bona”; therefore, the return would constitute a “false return” if, in fact, the

property at issue was subject to execution. See BLACK’S LAW DICTIONARY 1172 (9th ed.

2009) (defining “nulla bona” as “[a] form of return by a sheriff or constable upon an

execution when the judgment debtor has no seizable property within the jurisdiction”).




                                              9
       Kaelin further argued that he was entitled to traditional summary judgment

because he conclusively established a good-faith defense under section 7.003 of the civil

practice and remedies code. Section 7.003 provides:

       (a)     Except as provided by Section 34.061[4], an officer is not liable for
               damages resulting from the execution of a writ issued by a court of
               this state if the officer in good faith executes or attempts to execute
               the writ as provided by law and by the Texas Rules of Civil
               Procedure.

               ....

       (c)     An officer shows that the officer acted in good faith when the officer
               shows that a reasonably prudent officer, under the same or similar
               circumstances, could have believed that the officer’s conduct was
               justified based on the information the officer possessed when the
               conduct occurred.

See TEX. CIV. PRAC. & REM. CODE ANN. § 7.003(a). On appeal, Kaelin points to Kuo Kung

Ko v. Pin Ya Chin, 934 S.W.2d 839, 842 (Tex. App.—Houston [14th Dist.] 1996, no writ),

where the Fourteenth Court of Appeals upheld the trial court’s finding that a sheriff’s

deputy was entitled to a good-faith defense under 7.003. In that case, the sheriff’s deputy

failed to execute the writ “only because he received assurances from the judgment

debtor’s lawyer—an officer of the court—that the [underlying] probate matter was still

pending.” Id. Accordingly, the deputy was immune from liability under section 7.003. Id.

       This case is distinguishable. First, Kuo Kung Ko involved an earlier version of the

statute which required a showing that the officer “use[d] reasonable diligence in

performing his official duties.” Id. (citing Act of June 16, 1985, 69th Leg., R.S., ch. 959,

§ 1, 1985 Tex. Gen. Laws 3242, 3246 (amended 2007) (current version at TEX. CIV. PRAC.

& REM. CODE ANN. § 7.003)). As noted, the current version of the statute employs a


      4 Section 34.061 involves personal property and is not applicable here. See TEX. CIV. PRAC. & REM.

CODE ANN. § 34.061 (West, Westlaw through 2015 R.S.).

                                                  10
different standard, requiring a showing that “a reasonably prudent officer, under the same

or similar circumstances, could have believed that the officer’s conduct was justified

based on the information the officer possessed when the conduct occurred.” TEX. CIV.

PRAC. & REM. CODE ANN. § 7.003(c). Second, the facts discussed in Kuo Kung Ko are not

present in this case. In Kuo Kung Ko, the sheriff’s deputy was advised by an officer of

the court that the property sought to be seized was not subject to execution. 934 S.W.2d

at 842.   Accordingly, the sheriff’s deputy was entitled to rely, in good faith, on the

attorney’s representations. See id. Here, on the other hand, there was no representation

by an officer of the court, upon which Kaelin could have relied, indicating that the property

at issue was exempt from execution. Instead, as shown by the summary judgment

evidence, Kaelin was expressly advised by an officer of the court—Crago’s counsel—that

the property sought to be seized was not exempt from execution, notwithstanding the

homestead designation.          For the foregoing reasons, we find that Kaelin has not

conclusively established his entitlement to a good-faith defense under section 7.002.

       Because none of the grounds asserted by Kaelin in his summary judgment are

meritorious, the trial court erred in granting the motion. Crago’s issues are sustained.

                                       III. CONCLUSION

       We reverse the trial court’s summary judgment and remand for further proceedings

consistent with this opinion.




                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
8th day of October, 2015.

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