
                              NO. 07-09-0248-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL C

                              NOVEMBER 17, 2010




               CHARLES WILLIAMSON A/K/A CHARLES J. WILLIAMSON,


                                   Appellant
                                     v.


               THE STATE OF TEXAS AND WELLS FARGO BANK, N.A.,


                                   Appellees
                        _____________________________

             FROM THE COUNTY COURT AT LAW NO 1 OF TRAVIS COUNTY;

        NO. C-1-CV-09-001389; HONORABLE J. DAVID PHILLIPS, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Charles Williamson (Williamson) files a pro se direct appeal from  the
trial court's order denying his motion to intervene and quash a  garnishment
against funds of his held by Wells Fargo Bank, N.A. (Wells Fargo).  He  also
asserts  a  restricted  appeal  with  respect  to  the  propriety   of   the
garnishment.  We reverse the order.
      Background
      The State of Texas filed an application  for  a  writ  of  garnishment
against Wells Fargo on February 9, 2009, to obtain money from bank  accounts
of Williamson for payment on  a  judgment  entered  on  September  8,  1997,
against Williamson with respect to a student loan obtained from  the  State.
The record presented on appeal does not show service of the  application  on
Williamson at the time of its filing.[1]  A judgment agreed to by the  State
and Wells Fargo was entered on February 24, 2009.   That judgment was  later
amended by a judgment dated March 3, 2009, in  which  the  State  recognized
that some of the money in Williamson's  accounts  was  exempt,  and  it  was
released for his benefit.  The record indicates that, prior to the entry  of
the March 3 judgment, Williamson had contacted the State claiming that  some
or all of the money was exempt.  Thus,  it  is  clear  that  he  had  actual
knowledge of the garnishment prior to entry of the March 3 judgment.   There
is also evidence that at some point he received a copy  of  the  application
from either the State or Wells Fargo.
      Williamson  filed  an  amended  motion  to  intervene  and  quash  the
garnishment on March 10, 2009, after entry of  the  final  judgment.[2]   In
that motion, he raised the lack of notice to him as well as other  defenses.
 On April 28, 2009, the court conducted a hearing on  the  motion  at  which
time the court ruled  that  it  no  longer  had  jurisdiction   because  the
hearing had not been held within ten days  pursuant  to  Rule  664a  of  the
Rules of Civil Procedure.   Thus,  the  merits  of  Williamson's  motion  to
intervene and quash were never addressed.   He  then  filed  both  a  direct
appeal from the trial court's order and a restricted appeal.
      Order on Motion to Intervene and Quash
      First, Williamson challenges  the  trial  court's  order  denying  his
motion to intervene and to quash the garnishment by arguing that  the  trial
court had jurisdiction to consider them.[3]  Rule 664a provides:
           A defendant whose property or account has been garnished or  any
      party who claims an interest in such property or account, may by sworn
      written motion, seek  to  vacate,  dissolve  or  modify  the  writ  of
      garnishment, and the order directing its issuance, for any grounds  or
      cause, extrinsic or intrinsic. . . . Unless the parties  agree  to  an
      extension  of  time,  the  motion  shall  be  heard  promptly,   after
      reasonable notice to the plaintiff . .  .,  and  the  issue  shall  be
      determined not  later  than  ten  days  after  the  motion  is  filed.
      Williamson contends this rule is for the benefit  of  the  debtor  and
      should not be used to deprive him of the right to intervene.

      Several courts have found that this rule is not  jurisdictional.   See
Cloughly v. NBC Bank-Seguin,  N.A.,  773  S.W.2d  652,  658  (Tex.  App.-San
Antonio 1989, writ denied) (holding that  the  failure  to  hold  a  hearing
within ten days was waived when  the  debtor  made  no  complaint);  Kyanize
Paints, Inc. v. Denton, No. C14-91-00705-CV, 1992 Tex. App.  Lexis  1379  at
*7-8 (Tex. App.-Houston [14th Dist.] May 21, 1992, no writ) (not  designated
for publication) (stating that a hearing beyond ten days was  not  precluded
when the creditor was the complaining party).  That the  parties  may  agree
to an extension of the deadline further illustrates  the  non-jurisdictional
nature of the period; if jurisdictional, the parties cannot negotiate it  or
manufacture new periods. Good Shepherd Medical Center, Inc.  v.  State,  306
S.W.3d 825, 837 (Tex. App.-Austin  2010,  no  pet.)  (stating  that  subject
matter  jurisdiction  cannot  be  conferred  by  agreement).      Williamson
further argues that he was informed by a court employee that  he  could  not
obtain a hearing for three weeks.[4]  The purpose of the notice  requirement
and the opportunity to intervene is to provide the debtor with due  process.
 See Hering v. Norbanco Austin I, 735 S.W.2d 638, 641 n.5 (Tex.  App.-Austin
1987, writ denied).   The inability of a court's docket to hear  the  motion
within ten days of its filing should not be used to punish the  debtor.   We
find the trial court was not precluded by Rule 664a from hearing the  merits
of the matter.
      The court also discussed the fact that thirty days  had  passed  since
the judgment had been entered.  A court's plenary  power  ends  thirty  days
after all timely filed motions to grant a new trial or  to  vacate,  modify,
or correct a judgment are overruled. Sims v.  Fitzpatrick,  288  S.W.3d  93,
105 (Tex. App.-Houston [1st Dist.] 2009, no pet.).    Williamson  filed  his
verified motion to intervene and to  quash  the  garnishment  within  thirty
days of the entry  of  the  judgment.   Since  the  statutes  pertaining  to
garnishments do not specify a time period within which a motion  to  vacate,
dissolve or modify a writ of garnishment may be filed, we presume  that  the
court's plenary power is the same as in other proceedings.  That  being  so,
we will treat Williamson's motion as a post-judgment motion  to  vacate  the
judgment.  Since the court ruled on it within the  prescribed  time  limits,
see Tex. R. Civ. P. 329b(c), we find that the trial court had jurisdiction.
      Our ruling on this matter precludes the need to discuss  other  issues
raised by appellant or his restricted appeal.  We reverse and remand to  the
trial court for further proceedings.

                                        Brian Quinn
                                        Chief Justice

Pirtle, J., concurs in result only.
-----------------------
      [1]Rule 663a of the Rules of Civil Procedure provides for  service  of
the writ on the defendant.  Moreover, specific  language  must  be  used  in
that notice.  Several  courts  have  held  that  the  trial  court  errs  in
granting a writ of garnishment when there is no proof of service  in  strict
compliance with the statute even if the defendant had actual notice.   Lease
Finance Group, LLC v. Childers, 310 S.W.3d 120, 126  (Tex.  App.-Fort  Worth
2010, no pet.); Zeecon Wireless Internet, LLC v.  American  Bank  of  Texas,
N.A., 305 S.W.3d 813, 817-18 (Tex.  App.-Austin  2010,  no  pet.);  Abdullah
v.State, 211  S.W.3d  938,  942-43  (Tex.  App.-Texarkana  2007,  no  pet.);
Mendoza v. Luke Fruia Invs., 962  S.W.2d  650,  651-52  (Tex.  App.-  Corpus
Christi 1998, no pet.); but see  Del-Phi  Engineering  Associates,  Inc.  v.
Texas Commerce Bank-Conroe, N.A., 771 S.W.2d 589 (Tex.  App.-Beaumont  1989,
no writ) (stating that even though notice of the garnishment  was  not  sent
to the debtors, a hearing on the motion to  vacate  the  writ  was  properly
held  by  agreement  as  notice  was,  in  effect,  waived).   Moreover,   a
recitation in the judgment that notice has been  given  does  not  create  a
presumption in  favor  of  the  garnishor.   Lease  Finance  Group,  LLC  v.
Childers, 310 S.W.3d at 126.

      [2]The court indicated that Williamson had filed a motion to intervene
and quash on March 6, 2009, but  that  document  is  not  contained  in  the
clerk's record.

      [3]Wells Fargo contends that appellant's notice of appeal is  untimely
because  he  appealed  from  the  court's  order  and  not  from  the  final
garnishment judgment.  However, we have jurisdiction to determine the  trial
court's jurisdiction.  State v. Morse, 903 S.W.2d  100,  102  (Tex.  App.-El
Paso 1995, no writ) (court of appeals  may  address  the  propriety  of  the
county court's exercise of jurisdiction  or  refusal  to  do  so  under  its
general jurisdiction).

      [4]Appellant apparently did not attempt to set a hearing  until  after
the ten days had passed.  However, it appears that the trial court  may  not
have been able to accommodate a hearing within ten days.



