          T?EEEA

                       OFTEXAS




                       July 26, 1961

Honorable Charles J. Lieck, Jr.
Criminal District Attorney
Bexar County
San Antonio, Texas         Opinion No. WW-1099
                           Re:   Under the facts stated,
                                 when may the county clerk
                                 issue a writ of execution
                                 on a county court judg-
Dear Mr. Lieck:                  ment and related questions.
          Your letter requesting an opinion has been receiv-
ed and carefully considered by this department. We quote
from your letter as follows:
                "On April 17, 1961 Welex Inc.
          recovered judgment against Emmett
          Cole, Jr. in said court based upon
          a jur verdict for the sum of
          $796.%7 with 10% interest from May
          19, 1959, and $200.00 attorney's
          fees and all costs of suit. The
          judgment is dated April 17, 1961
          and was signed by the Judge of said
          court April 19, 1961.   A motion for
          new trial was filed April 24, 1961,
          and without having been heard, an
          amended motion was filed May 12, 1961.”
          Your first question is whether under the facts
stated, and assuming that 90 days will elapse for determin-
ation of the amended motion, how long will the Clerk have
to wait before he can lawfully issue a writ of execution?
          Rule 329b, Rules of Civil Procedure, effective Jan-
uary 1, 1961, by which original or amended motions for new
trials in county court cases are governed is quoted as follows:
               "The following rules shall be
          applicable to motions for new trial
Honorable Charles J. Lieck, Jr., Page ‘2 (w-1099)


          filed in all district and county
          courts:
               "1. A motion for new trial when
          required shall be filed within ten
          (10) days after the judgment or other
          order complained of is rendered.
               "2. An original motion for new
          trial filed within said ten (10) day
          period may be amended by leave of the
          court. Said amended m~otionshall be
          filed before the original motion is
          acted upon and within twenty (20) days
          after the original motion for new
          trial is filed. Not more than one
          amended motion for new trial may be
          filed.
               “3. All motions and amended
          motions for new trial must be deter-
          mined within not exceeding forty-five
          (45) days after the original or amend-
          ed motion is filed, unless by one or
          more successive written agreements of
          the parties In the case filed with the
          clerk of the court the decision of the
          motion Is postponed to a day certain
          speciflcally set out in any such agree-
          ment. Any such day certain shall not
          be more than ninety (90) days after
          such original or amended motion is
          filed.
               "4. It shall be the duty of the
          proponent of an original or amended
          motion for new trial to present the
          same to the court within thirty (30)
          days after the same is filed. However,
          at the discretion of the judge, an
          original motion or amended motion for
          new trial may be presented or hearing
          thereon completed after such thirty
          (30) day period. Such delayed hearing
          shall not operate to extend the time
          within which the original or amended
          motion must be determined, unless such
Honorable Charles J. Lieck, Jr., Page 3 (Ww-1099)


           time be extended by agreement as pro-
           vided for in the preceding subdivisions
           of this Rule. In the event an original
           motion or amended motion for new trial
           be not presented within thirty (30)
           days after the date of the filing there-
           of, and the judge in his discretion re-
           fuses to consider the same or refuses to
           hear evidence relating thereto, such
           motion will be overruled by operation of
           law forty-five (45) days after the same
           is filed, unless disposed of by an order
           rendered on or before said date. In the
           event the decision of the motion is post-
           poned by any written agreement as provid-
           ed in subdivision 3 of this Rule then any
           such original or amended motion, if not
           determined by the court, will be overrul-
           ed by operation of law ninety (90) days
           after the same is filed or on the latest
           day certain agreed upon, whichever occurs
           first.
                "5. Judgments shall become final
           after the expiration of thirty (30) days
           after the date of rendition of judgment
           or order overruling an original or amend-
           ed motion for new trial. . . .'
           Rule 627, Rules of Civil Procedure, reads as
follows:
                "The clerk of the court or the
           justice of the peace shall Issue the
           execution upon such judgment upon the
           application of the successful party
           or his attorney after the expiration
           of twenty days from and after the
           rendition of a final judgment in the
           district or county court or in the
           justice court, and after the overrul-
           ing of any motion therein for a new
           trial, or in arrest of the judgment,
           if no supersedeas bond has been filed
           and approved."
          As set out in the statute, a motion for a new
trial must be filed within ten (10) days after entry of
                                                              ’




Honorable Charles J. Lleck, Jr., Page 4 (m-10%)


judgment, may be amended once by permission of the court
within twenty (20) days after filing the original motion
if the ori lnal motion has not been acted upon. Bunker
v. Lott, 282 S.W.2d 879 (Civ.App. 1955, error ref. n.r.e.).
The original or amended motion should be presented to the
court within 30 days after filing, but the court has the
right to extend the time for presentation until the motion
is overruled by operation of law after forty-five (45)
days have elapsed. If the court does not rule on the
original or amended motion within forty-five (45) days
from the date of filing, it is overruled by operation of
law unless all parties or their attorneys extend the time
in writing for a definite period or dav certain for the
court to rule on the motion. Moore v.-Decuir, 286 S.W.2d
471 (Civ.App. 1956, error ref.).
          Any such day certain shall not be more than nine-
ty (90) days after the original or amended motion is filed.
In the event the decision on the motion is postponed by a
written agreement, the original or amended motion, If not
determined by the court, will be overruled by operation of
law ninety (90) days after the same Is filed or on the
latest day certain agreed upon, whichever occurs first.
The judgment of the court becomes final thirty (30) days
after the date of rendition of Judgment or a timely filed
motion for new trial or amended motion is overruled by the
court or by operation of law.
          The two important changes in the amendment of
Rule 32913which we are concerned with here are the ninety
(90) day limitation period designed to eliminate unreason-
able delay in disposing of motions for new trial and the
application of this rule to county courts as well as dis-
trict courts,
          Under'the facts stated In your letter, the judg-
ment in the instant case was properly signed and entered,
the original and amended motions for new trial were timely
filed, the amended motion being filed on the 12th day of
May, 1961. If the motion is not presented within the
thirty (30) day period after filing and the judge in his
discretion refuses to hear the motion, the motion Is over-
ruled by operation of law forty-five (45) days after being
filed which in this case would be June 26, 1961. Assuming
that there is a written agreement between the parties to
Honorable Charles J. Lieck, Jr., Page 5 (WW-1099)


postpone the hearing to a day certain and that the ninety
(90) day period will elapse with no action taken on the
amended motion by the court, the 90 day period will be up
under your facts on August 10, 1961, and the judgment will
become final Se tember 11, 1961, (see Rule 4, Rules of
Civil ProcedureP , thirty (30) days after the motion for
new trial is overruled by operation of law.
          Under Rule 627, Rules of Civil Procedure, which
provides that execution may issue twenty (20) days "after
the rendition of a final judgment in the district or coun-
ty court . . . and after the overruling of any motion there-
in for a new trial," execution may safely issue, under the
assumed facts, herein stated, on October 2, 1961, (see Rule
4, Rules of Civil Procedure), unless a supersedeas bond has
been filed and approved.
          Therefore, In answer to your first question, under
the facts stated in your letter and assuming there was a
written agreement to postpone the hearing to a day certain
and that 90 days will elapse for the determination of the
amended motion, the Clerk can lawfully issue a writ of
execution on October 2, 1961, unless a supersedeas bond
has been filed and approved. However, under Rule 628, exe-
cution may issue within said twenty days under named condi-
tions.
          In your second, third, and fourth questions you
ask if there is any liability on the part of the Clerk for
the premature issuance of the execution and, if he refuses
to issue an execution, which he deems premature, would he
be liable in damages, or would he be guilty of contempt of
court for such refusal.
          The general rule seems to be that the premature
issuance of an execution is an irregularity, but the writ
must be respected until it is vacated in a direct proceed-
ing for that purpose. House v. Robertson, 36 S.W. 251
(Civ.App. 1896); Acrey v. Henslee, 2'19S W.2d 925 (Civ.App.
1955); Sydnor v. Roberts, 13 Tex. 600; Interstate Life
Insurance Company v. Arrlngton, 307 S.W.2d 14b (Civ.App.
1957); 18 Tex.Jur. 581, Executions, Sec. 43. It is clear
from a study of the above cited cases that, in the exercise
of his ministerial duties, there Is no liability on the
part of the Clerk for the mere issuance of an execution
which is premature.
                                                              .




Honorable Charles J. Lieck, Jr., Page 6 (m-1099)


          Although we find no Texas cases holding the
Clerk liable in damages for the premature issuance of an
execution, we do find certain cases which indicate that
the Clerk is not immune from liability where he refuses
to issue an execution which he deems premature and an
injury occurs resulting in actual damage to one of the
parties because of neglect in the discharge of his duties,
or wilful disregard of the rights of a oarty to an action.
Moore v. Muse, 47 Tex. 410; Kznney v. Bell,-127 Fed. 1002
~c.c.A.E.D. Pa. 1904). However, these cases also indicate
that the Clerk is not liable in damages because of his
refusal to issue execution where he has a legal reason for
not doing so. In Kruegal v. Jones, 143 S.W. 989 (Civ.App.
7912), the Court held that the refusal of the Clerk to
i.ssuk.anexecution under the facts of the case did not
render him liable in damages, the plaintiff In such circum-
stances having no right to the writ.
          The situation is much the same In a proceeding
for contempt of court. If the Clerk refuses to carry out
the order of the court or neglects to carry out the duties
imposed by statute in the performance of his ministerial
duties he may be found guilty of contempt of court but, if
a party to a suit has no right to the writ, the Clerk is
not guilty of contempt. 12 Tex.Jur. 159, Clerks of Court,
Sec. 39; Francis v. State, 156 S.W. 1167 (C.C.A. 1913);
Kruegal v. Williams, 153 S.W. 903 (Clv.App. 1913, error
ref.).
          Therefore, in answer to your last three ques-
tions, it is the opinion of this department that there is
no liability on the part of the Clerk for the mere Issuance
of an execution which is premature and that the writ must
be respected until it is vacated in a direct proceeding for
that purpose. Neither is the Clerk liable in damages or
guilty of contempt of court where he refuses to issue an
execution which is, in fact, premature, where there is no
valid judgment and a legal reason for his refusal. However,
the Clerk may be liable in damages if he refuses to act
when a party has a right to an execution and his refusal is
due to the wilful neglect of the discharge of his duties or
wilful disregard of the rights of a party to an action re-
sulting in actual damage to a party. He may also be found
guilty of a contempt of court where he neglects to perform
his duties as a ministerial officer which have been imposed
by statute and he fails or refuses to carry out the order
of the court without legal excuse.
Honorable Charles J. Lieck, Jr., Page 7 (WW-1099)


                       SUMMARY
            Under the facts presented, the Clerk
            may lawfully Issue a writ of execu-
            tion on the judgment on October 2,
            1961. There is no liability on the
            part of the Clerk for the mere pre-
            mature issuance of an execution but
            the writ may be vacated in a direct
            proceeding for that purpose. The
            Clerk is not liable in damages or
            guilty of contempt of court where he
            refuses to Issue a writ of execution
            which is, in fact, premature.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas



                                 Byott’   ~P-w-JQ~+
                                      Iolz Barron Wilcox
1BW:mm                                Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ralph R. Rash
Pat Bailey
Watson C. Arnold
J. Milton Richardson
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Morgan Nesbitt
