                                   November     12.    1974


Tke Honorable Ned Granger                 Opinion No.         H- 449
County Attorney
Travis County Courthouse                  Re:         May an officer force his
Austin, Texas 78701                                   way into a person’s   resi-
                                                      dence to seize property
                                                      that is subject to a writ
                                                      of attachment or other
                                                       similar process,   and
Dear   Mr.   Granger:                                  related questions.

    You have requested our opinion concerning            the execution   of process
in civil cases. Your first questions are:

        May an officer force his way into a person’s
        residence to seize property that is subject
        to a writ of attachment or other similar pro-
        cess?   May he do so in order to eject a party
        from the premises    pursuant to a writ of resti-
        tution obtained in a judgment in a forcible entry
        and detainer action?

    The specific question of an officer’s  authority in the execution of writs
for personal property was decided in Hillman V. Edwards.        66 S. W. 788
(Tex. Civ. App.,   1902, no writ).    The court stated the rule to be:

             It is a well-settled    rule of co-on      law
         that in the execution of civil process       an officer
         is not authorized to break open an outer door,
         or raise a window, or forcibly        enter the dwelling
         house of the defendant in execution,        used and
         occupied as such by him, without his consent.           If
         he gains admission without force, he may go from
         room to room, or forcibly enter an inner room, or
         break open trunks,       wardrobes,   etc.,   for the pur-
         pose of a necessary      levy.  Ia at 789.




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The Honorable    Ned Granger.    page 2     (H-449)




     Hillman is the only Texas case in which this issue has been
decided but the rule has more recently been acknowledged           in Attorney
General Opinion M-285     (1968), and in Singer Sewing Machine v. Mendoza,
62 S. W. 2d 656 (Tex. Crim. App. --San     Antonio,   1933). rev’d.     on other
grounds,   84 S. W. 2d 715 (Tex. 1935).   In the latter case,     officers who
forcibly entered a dwelling to serve a writ of sequestration         were acknowl-
edged to be liable for abuse of process    and assault,   and the issues on
which the case was reversed      involved only the joint liability of third
parties.

    While the rule is not frequently discussed in reporied cases,         it
is generally  recognized   in United States jurisdictions.     The most recent
application of the rule is found in Vanden Bogert V. May,        55 N. W. 2d 115
(Mich. 1952).    See 33 C. J.S. Executions   Sec. 96 (1942); 30 Am. Jur. 2d
Executions   Sec. 261 (1967); 52 Tex. Jur. 2d Sheriffs,    etc. Sec.   30 (1964).

    In Hillman the court rejected a contention that there is an exception
to the rule where specific personal property is sought, and held that in
no case may an officer break into a dwelling to seize personal property
under civil process.

     In the case of the execution of a valid writ or order of a court to
evict the possessor    of land or put another in possession,       an officer may,
after making a fruitless    demand for the possessor       to remove himself,
employ such force to the person.of       the possessor    or to the premises    as
is reasonably   necessary    to carry out the court’s order.      Semayne’s    Case,
5 Coke 91b (King’s Bench 1603); Howe V. Butterfield,          4 Gush, 302, 50
Am. Dec. 785 (Mass.       1849); Fry V. Taylor,     138 A. 138 (Corm. 1927);
Nourse V. Lycett,     159 A. 277 (Corm. 1932); State V. Frandsen,         30 P. 2d
371 (Wash. 1934); 3 Freeman         on Executions,   Sec. 473 (3rd ed. 1900);
3A Thompson on Real Property,          Sec. 1370 (1959); 1 Harper & James,
The Law of Torts,     Sec. 1. 19 (1956); Restatement      (Second) of Torts,




                                      p.   2072
The Honorable    Ned Granger      page 3     (H-449)




Sec. 210 (1965); cf. Patton V. Slade,       38 S. W. 832 (Tex. Civ.   App.,
1897, no writ) (wTt of sequestration):        Modesett v. Emmons,     292 S. W.
855 (Tex. 1927).

         You further ask whether the types of dwelling involved is of sig-
nificance.    The rule regarding execution on personal property is stated
in terms prohibiting the breach of the outer door of a dwelling.          Despite
some authority to the contrary,     in the case of a building leased in distinct
portions to several tenants where the outer door of the building and hall-
ways are used in common,       the doors leading into a tenement or apart-
ment in the sole and exclusive     possession   of a tenant are to be regarded
as outer doors which an officer has no right to break open.          Swain v.
Mizner,    8 Gray 182, 69 Am. Dec. 244 (Mass.        1857); Schork V. Calloway,
265 S. W. 807 (KY. 1924); 30 AM. JUR. 2d, Executions, Sec. 262 (1967);.
33 C. J.S.   Executions, Sec. 96 n. 67, p. 242 (1942); Annot.,        A. L. R. 210,
216 (1928); Contra Cantrell V. Conner,       6 Daly 39 (N. Y. 1875).

         Your next question asks what alternatives     are available when a
defendant avoids execution by refusing to allow the officer to enter his
dwelling.   In light of our answer concerning    an officer’s  authority pur-
suant to a writ of restitution to obtain possession    of real property,  we
limit our answer to executions    on personal property in a dwelling.

         Without attempting to exhaust all possible alternatives,         we note
the following:   In a proper case,    a defendant may be held in constructive
contempt for disobedience      of process.    The procedure    to be followed is
set out in Ex Parte Pyle, 133 S. W. 2d 565 (Tex. 1939).         See also,   Ex parte
White,   229 S. W. 2d 1002 (Tex. 1950).      See generally,    H. Lowe, REMEDIES
ch. 4, Contempt,     $ 541 et seq.,  (2d ed. 1973) ; 4 R. STAY TON, TEXAS
FORMS,     ch. 20, w,            $2081 et seq. (1959~ & Supp. 1974).       When
personal property has “especial       value” to the plaintiff,   that is, value
other than monetary,     Ex Parte Prickett,    320 S. W. 2d 1 (Tex. 1958), the
court may award a special writ for the seizure and delivery of the property
to the plaintiff and may enforce its judgment by attachment,          fine and
imprisonment.      Rule 308, Tex. R. Civ. P.

        Depending on the facts of the particular    case,  the defendant’s conduct
may constitute a criminal offense,    such as hindering secured creditors,
Sec. 32.33,   V. T. P. C., or theft on a conversion   theory, Sec. 31.03, V. T. P. C.




                                       p.   2073
        The Honorable   Ned Granger     page 4      (H-449)


,

                                      SUMMARY

                            An officer may not break into a dwelling in
                        order to execute a writ on personal property.
                        He may employ such force as is reasonably
                        necessary   to carry out a court order concerning
                        possession   or restitution   of real property.     An
                        uncooperative   defendant may be held in constructive
                        contempt.    A special writ may issue for personal
                        property of “especial     value ” to the plaintiff,  and
                        refusal to deliver secured personal     property   may
                        constitute a criminal offense.

                                                          Very truly yours,




                                                          Attorney   General   of Texas


        APP    V   D:




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        DAVID M. KENDALL,        Chairman
        Opinion Committee


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