                                 NO. 07-07-0308-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                               OCTOBER 17, 2007
                        ______________________________

                           JEFFREY GARRETT CROSS,

                                                             Appellant

                                          v.

            USAA FEDERAL SAVINGS BANK, JENNIFER MAY, ET AL.,

                                                    Appellees
                      _________________________________

             FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY;

       NO. D-1-GN-06-003882; HON. MARGARET A. COOPER , PRESIDING
                     _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Jeffrey Garrett Cross, acting pro se, appeals from a summary judgment granted in

favor of USAA Federal Savings Bank (USAA) and Jennifer May (May) as well as from an

order denying his own motion for summary judgment. Cross sued USAA and its employee

May for honoring a tax levy by the Internal Revenue Service (IRS). He sought as damages

treble the amount of money remitted to the IRS. We affirm.
       Summary Judgment

       We review a traditional motion for summary judgment, such as that before us, under

the standard set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.

1985). We next note that the IRS may levy upon all property and rights to property upon

which there exists a lien for unpaid taxes. 26 U.S.C.A. §6331(a) (West Supp. 2007).

Furthermore, anyone possessing such property upon which a levy has been made must

surrender it “except [for] such part of the property or rights as is, at the time of such

demand, subject to an attachment or execution under any judicial process.” Id. §6332(a)

(West 2002).     Failing or refusing to surrender the property makes the stakeholder

personally liable to the government for the value of the property withheld. Id. §6332(d).

However, surrendering the property “discharge[s] [the stakeholder] from any obligation or

liability to the delinquent taxpayer and any other person with respect to such property or

rights to property arising from such surrender or payment.” Id. §6332(e). In other words,

the IRS can levy upon property encumbered by a lien for unpaid taxes. If the person

holding the property does not release it, he becomes personally liable to the government

for the value of the property held. But, if he turns it over, then he is insulated from liability

to the tax debtor.

       Not only is the foregoing statute and procedure constitutional, United States v.

National Bank of Commerce, 472 U.S. 713, 721, 105 S.Ct. 2919, 2925, 86 L.Ed.2d 565

(1985), but also the options available to the party holding the property are limited. Either

he can release it, illustrate that he does not possess it, or show that it is subject to a prior




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judicial attachment or execution. United States v. National Bank of Commerce, 472 U.S.

at 721-22, 105 S.Ct. at 2925.

        The record at bar contains no evidence suggesting that those who Cross sued either

lacked possession of the money subjected to levy or that the money was subject to a prior

attachment or execution. Thus, neither USAA nor its employee (May) could challenge the

validity of the levy. Moore v. General Motors Pension Plans, 91 F.3d 848, 851 (7th Cir.

1996). And, in abiding by the levy, both USAA and May were relieved of any obligation or

liability to Cross arising from the act of surrendering the property. Jones v. Bass, 343

F.Supp.2d 1066, 1070 ( D. Wyo. 2004), aff’d, No. 04-8113, 2005 U.S. App. LEXIS 19187

(10th Cir. September 2, 2005), cert. denied, 547 U.S. 1019, 126 S. Ct. 1573, 164 L.Ed.2d

299 (2006). So, and as a matter of law, Cross could not recover from either USAA or May

for the purported breach of contract underlying his suit or any other claim tied to honoring

the levy, and summary judgment in favor of the two defendants was proper.1

        Motion for Sanctions

        Also pending before us is the motion for sanctions filed by USAA and May. The

latter two contend that they are entitled to reasonable attorney’s fees and court costs as

sanctions for responding to a frivolous appeal. Assuming arguendo that the appeal was

frivolous, we have no evidence before us of what a reasonable attorney’s fee would be in

responding to the appeal. So, we have no basis upon which to award any fees. As for




        1
         Our holding also includes the allegation that USAA and May som ehow adm itted liability because they
did not respond to various written dem ands Cross m ade. Sim ply put, federal statute negated the claim s
underlying his dem ands. So, there was nothing to support them .

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court costs, they are normally levied against the losing party. So, because Cross is the

losing party here, it matters not whether the appeal was frivolous.

      Accordingly, the judgment of the trial court is affirmed.



                                                Per Curiam




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