                              The Attorney            General       of Texas
                                                  July 6, 1982
MARK WHITE
Attorney General


                             WouorableMike Driacoll                  Opinion No.hW-406
supremscoull sulMiflg        Esrrle CountyAttorney
P. 0. Box 12949
Auslln. TX. 78711.2545
                             1001 Preston.Suite 634                  Be:  Temporary dispositionof
512/4752591                  Rouston,Texan 77002                     tenant’e personal property
Telex 919/974-1387                                                   vhen- tenant is subject to
Telecqir 5t2l479.0299                                                -removalfrm premisespursuant
               ..%                                                   to court order
1697Mdll Sl.. suite 1409
LMlh& TX. 752014709          Dear Mr. Driscoll:
214l742.9944        _
                                 Iu your letter to this office.you stated:
4924AlbertaAve.. suite 150
El Paw. TX. 799052793 .
                                      A,situation has come to a head ‘in Barrio County
91-                                  ..,qverthe authority of a constable to place
                                      personal property of a- tenant’ in a public
                                     -,Lwarehouse
                                                when ~uecuting a Writ of Restitution
1220OallSSAve.. Suite 292
                                      from a justice court or county court at law. A
Nolmton.TX. 77o!xaQ55
71-
                                     -.spokesmanfor the juetices of .,ethe. peace has
                                      requestedus to ask you for your :opinionof this
                                      mett*r.
906 BrOwway, sate 312
Lubbock,TX. 79401-2479
8081747.52%
                                  Articles’3973 through 3994, :V.T.C.g.,provide for an action of
                             forcibleentryand detainer.~.Rules~738   through:755of the Texas Rules
                             of --Civll~
                                      iProcadure govern the .procedurein such action. Rule 740
4399 N. Tenth. Suits B       atetes that:‘1 ,tL7r ~~  ~,
YcAffelt,TX. 7B501-1995           .~,, .:: .,I 1 i ”
512m92-4547
                                       If ,the::judgment~or verdict’.be :in favor of the
                                    ~‘,,
                                       plai.utiff,the.justice ebell :,give *,
                                                                            judgment for
200 M*ln PIUL suite 4w                ,..p,leiutiff
                                                  for restitution-of the :premisea.coets.
San Antonlo.TX. 792052797              .+nd.damages; end he ‘shall award his writ of
512l2254191                            vestitution. If the judgment or verdict be in
                                       favor of the defendant, the justice shall give
                                       .judgmeotfor defeudent against the .plaintifffor
                                       ,coataand any damages. No writ:of restitution
                                       abell~iesueuntil the expirationof five days from
                                        the time the judgmentia signed.

                             Rule 755 providesthat:

                                      The writ of restitution.or execution, or both,
                                      shall be issued by the clerk of the county court
                                      according to the judgment rendered, and the snme
                                      shell be executedby the sheriff or constable,as



                                                        D.   1717
HonorableMike Driacoll- Page ,2   (NW-486)




         in other cases;and such writ of restitutionshall
         not be suspended or superseded in any case by
         appeal fro-esuch final judgment in the county
         court.

    In your letter,you advised that:

         [iln the past few weeks two district judges and
         one county court at law judge have questioned.the
         constable'sauthorityto place a tenant'8peraoeal
         property in a public warehouse at the tenant's
         expensewhen executinga Writ of Restitution.-.

You did uot..however.ask us to considerany specific possible legal
impedimentto this practice. Therefore,we will respond in general
term3 to your question.

     Perguaon v. Barnes, 274 S.W. 277 (Tex. Civ. App. - San Antonio
1925,writ dima'd).was a suit to recoverdamageswhich the plaintiffs
claimedwere sustainedwhen the county sheriffevicted them from their
home end ."dump[ed] [their].household goods, furniture, wearing
apparel. and .otherproperty,and-belongings...'.intothe street." Id.
at- 270. me: relevant background information, and the courz
concluaiona,are!aet forthin this excerpt'fromthe court's opinion:

          s. :: c. Pitagerald filed a suit for forcible
          ,detainerof ~certain premises.... :In connection
          with his suit he filed a bond..~..:CL B. Corley.
          the justice of the peace. took the complaint...
          and issued a citationthereon..:. Be placed this
          citation in the hands of... the sheriff;:.[who]
          served it upon.the~.defendaar...i;~.-The
                                               plaintiffin
          the forcibledetainer suit having filed~a bond;..
          at the time of the institutionof the suit... it
        .~becama the ~duty.of thei%herifff.. to put the
          plaintiff..i.npoaeeaeioa~~'of: -the ~~~premiaea
                                                        in
      : ..~diepute, unless the defendant presented to said
          sheriff:.a bond in .double the amount of the
          plaintiff's,bond..,. This ~bond coming too late,
          the, aheriff.....,wasrequired to ~"~put s. c.
          Fitznerald
            i -      ..in~ooeaeaaion'-;of~the nremiaea in
          dispute. This hi-could do only by &possessing
          Ferguaon by removing his effects from the
          premiaee.... ,-Thesheriff. in executingthe writ,
          was acting in his official capacity. The writ is
          fair on -its face, and .th&efore a complete
          protection to the officer. unless, indeed, he
          should have acted arbitrarilyand harshly, with a
          bad motive and wrongful intent.... The cause of
          action is predicated on the .claimthat all the
          appelleeaacting togetherharshlyand oppressively
HonorableMike Driacoll- Page 3        (MW-486)




          committeda tort or trespass.and it devolvedupon
          them to substantiateit by evidence. We do not
          think appellsnts have shown any malice or
          arbitrary action on the part of appellees....
          (Emphasisadded).

-Id. at 279.
     In Guyer v. Guyer. 141 S.W.2d 963 (Tex. Civ. App. - Amarillo
1940, writ ref’d), the appellantsought, inter alla, damages for the
alleged conversionof her householdfurnitureby the county sheriff.
Acting under a writ of possessionissued after final judgment in a
trespass to try title action. the sheriff had removed appellant’s
propertyfrom the premises in questionand placed it in a warehouse,
subjectto appellant’sorders. The court stated:

          the .aheriff removed such uronertv from the
          premises under the direction‘of‘a valid writ of
          possessionand stored the same in the warehouseof
          Sid Parker of Vernon...subject to the disposalof
          the appellant. No demand for posaeaaionmofthis
          property was thereafter ever wade by the
          gpellant. The testimony shows that she could
          have obtained the propertyat any time she called
          for it upon the payment-of the storage charges
          thereon.... There was no evidence that the
          appellantdirected the sheriffwhere to place the
          property or that she gave him any directionsat
          all with reference thereto. It is apparent from
          the record that the propertywas stored solely for
          the benefit of the appellant. Neither the
          sheriff, nor Prince, nor anyone other than
          appellantwer assertedany claim to or ownership
          of such property or exercised any dominion or
          control over it. Under such circumstanceswe
          think no conversion of the property was shown.
          (Emphasisadded).

Id. at 968-69. For furtherdiscussionof the elementsof the crime of
nZnversion.” see, e.g., Hull v. Freedman,383 S.W.2d 236 (Tex. Civ.
APP. - Fort Worth 1964. writ ref’d n.r.8.);Cantrellv. Broadnax.306
S.W.Zd 429 (Tex. Civ. App. - Dallas 1957. no writ).

     These cases demonstrate that it is not per se illegal for a
sheriff. acting under a valid writ of possession or writ of
restitution,to remove a tenant’spersonal propertywhich is located
in the subjectpremisesand have it stored in a public warehouse. See
also Shemanski v. Sair, 268 P.2d 576 (Cal. App. Dep’t Super. Ct.
1954); Gaertner v. Bues. 85 N.W. 388 (Wls. 1901) (officer may.
exercising“reasonablecare,” selectwarehousefor storageof property
and take property thereto). Various legal pitfalls may, of course,


                                 p.    1719
RonorableMika Driacoll- Page 4    (Ml-486)




appear in a particular case. depending on the facts. The cases
discussed above offer clues as to the kinds of complfcationathat
might arise.

    In your brief, you stated that Aarria County adheres to the
followingprocedure:

          After trial -- or opportunityto appearand defend
          himself -    judgment is rendered against the
          tenant. After five days and no appeal havingbeen
          perfected,-aWrit of Restitution' Pay issue. When
          the vrit is placed with ~theconstable.in Rarria
          County,'a:wrltten notice is taken to the aubjcct
          pramiaea by the officer~~informingthe~tenantthat
          the officer.~ will:~move him and his;-:property
          therefromunless the tenant voluntarilyramovea
         such:.from the.property. When the day of reckoning
          .arrivea,the tenant;:etill holding poaaeaion'iaa
         .a&offlnwwho has flouted his lendlord and lease
          agreement, flouted the court:-and flouts the
          officer..~,Undersuch state of affairs,the officer
          cella:~~,.on
                    ;:aoms moving:.'compenytom aid him 'in
          executing the court order.. Previously he ,hea
         'requiredany such moving .compai~yto show proof
          thatit .ia.operatinga bonded warehouse and'has
          sufficientpublic liebility insurancecoverage-to
          protect a tenent'a~"property'~  intereat~in any
         jremoved-propertythat might-be lost or damaged
          while:inthe mover's custody.     ~.
           .~ f:'
    In our opinion,..the storage of a 'ter&~a.peraorLsl:property
                                                               under
these conditions :would, absent extenuating drcumatancea. be
reaaonable;;~.
             Aa we.h+ve.,notad
                             , ,howevet,i_the.~facta
                                                 of a particularcase
might create:cau~~:of~.,lctlonwhich:cannotbe anticipatedhere.



            It is not per se illegal for a sheriff,acting
         under,-'avalid-writ of reatitution issued in a
         forcible detainer~action, to ramova a tenant's
   .*    personal property,:~fromthe .aubjectpramiaea end
         store it ina public warehouse. The facta of a
         particularcase might, however, create causes of
         actionwhich cannot be anticipatedhere.'




                                       MARK     WEITE
                                       AttorneyGeneralof Texas


                                  n.   1770
EonorableHike Driscoll- Page 5    (HW-486)




JOHN W. FAINTER,JR.
First AssistantAttorneyGeneral

RICRARDE. GRAY III
ExecutiveAssistantAttorney   General

Preparedby Jon Bible
AssistantAttorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,Chairman
Jon Bible
Rick Gilpin
PatriciaRinojoaa
Jim Woellinger
Susan Russell
Bruce Youngblood




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