                              June   8,   1939

Hon. Orville S. Carpenter, Chairman
and Executive Director
Texas Unemployment Compensation Commission
Austin, .Texas
                       Opinion NO. O-862
                       Re:   Is the refusal  of a,.sheriff to levy
                       execution under a judgment on chattels
                       of a judgment debtor in a suit filed un-
                       der the Texas Unemployment Compensation
                       Act until he is furnished an indemnity
                       bond justified,   and can the State furnish
Dear Sir:              such bond?~
           We are in receipt  of your letter&  M8JI24 1939 in
which you. request the opinion of this department on Che follow-
ing questions:
            “The Texas Unemployment Compensation Commission
     is required by the Texas Unemployment Compensation
     Act to ~file civil    actions for the colleation   of con-
     tributions    penalties    or interest thereon in the name
     of the Stage and the ~Attorney General.       Judgments
     rendered Xn such actions are, therefore,       judgments in
     the name of the State.
                “A sheriff has refused to levy execution under
         such judgment on chattels     of a judgment debtor until
         such time as he is furnished an Indemnity bond by the
         State.    Is his refusal  justified?   Can the State furn-
         ish suoh Indemnity bond”?
          It is a well reoognlsed principle     of’law that, as a
general proposition     an officer  is bound to obey the legal or-
ders of a court     anA is not entitled  to be indemnified for so
doing.  See Cra:en v. Buchanan 248 SW 69.
           It is also well established  that .a sheriff   cannot
require a bond of indelrmity before selling   real estate.   Bryan
v* Bridge, 6 Tex. 137.
               On the other hand, the courts of this state have gen-
erally     recognized  the right of an officer to require indemnity
before     levying execution on personal property.   Seasongood V.
Hon. Orville    S. Carpenter,      June 8, 1939, Page 2


Campbell, 49 SW 407; Head V. Carlin   240 SW 1Oflj                 Craven v.
Buchanan, 248 SW 89; 78 Tex. Jur. d2:
             1'S 71.    Risht to Rxact Indemnitv.-In          contra-
     distinction       to the rule where the levy is made
     on chattels,       the plaintiff     In a writ cannot be
     required to indemnify the officer             for levying
     on real property           for the reason that a levy on
     land will not su b-Ject him to a suit for damages.
     With respect to chattels,           however, the law has
     always recognized          that the officer     should be
     conceded the right to protect himself from a
     potential      liability,     notwithstanding     that the
     chattels     are in the possession        of the debtor
     and are apparently -subject to levy under the
     writ; and in the case of ,an attachment this right
     is recognized        by statute.     The officer    is there-
     fore within his rights in requiring              indemnity
     where the defendant in the writ claims that the
     chattels     are exempt from execution           or where
     some third person claims chattels             &at the off+           .,, ~-;,
     cer believes       to be avail’able for levy under the” ’
     writ, or where there exists some other ground for
     apprehending that a claim in’ trespass or conver-
      sion will follow a seizure of chattels              specified
     in the writ or any property under a writ author-
     izing a levy on the debtor’s,property              generally.
     mreover,        if a doubt should arise. ,as to his) rights
     to proceed to a sale of chattels,             the officers       ,.:
     may exact indemnity~ after seizures and before a ‘.,:,”
      sale.     As has been pofnted out, any other rule
     would require the officer           to detertine     the’owne~r-
      ship of the chattels ‘at his peril,            and the true
      effect    of R.S. art- 6873, requiring          the sheriff
     to execute all process and,prece,pts directed                to
     him by legal authority is not to abrogate the
      ancient practice         in this matter.”
          In this connection    we wish to point out that an of-
ficer has a statutory right to obtain a bond of indemnity when
levying an attachment.   Article 287 of the Revised Civil Stat-
utes, 1925, giving him this rights,   reads as follows:
           Whenever an officer    shall levy an attach-
      ment, it shall be at his own risk.     Such officer
           for his own indemnification     require the plain-
      ?&   in att&neent   to execute an4 deliver to him a
      bond of indemnity to secure him if it should after-
      ward ~appear that the property levied upon by him
      does not belong to the defendant.”
- ._



       Hon. Orville   S. Carpenter,     June 8, 1939,   Page.3


                 In none of the ~above authorities,  however, is this
       right of the officer  to an indemnity bond extended to a sit-
       uation where the state is the judgment ~creditor.
                  Furthermore, although the officer     or sheriff is en-
       titled  to indemnity in executions    between private parties,
       the state occupies an entirely    different  status.   It is in
       most instances granted privileges     and lmmuuities not confer-
       red by law upon private parties to lawsuits.
                  38 Tex. Jur.   861:
                   ‘I *** the state is granted certain immani-
            ties which are not available    to other litigants,
            such as the right to be sued only with,its      consent,
            ssfrom                                             and
            freedom from exec&k      aga!&t   it.#’ (Underscoring
            ours>.
                   As au illustration  of this immunity from giving bonds,
       see Article   2276, Revised Civil Statutes. of Texas,’ 1925, which
       reads in part, as follows:
                  “Neither the State of Texas, nor any county in
            the State of Texas nor the Railroad Commission of
            Texas, nor the hea A, of auy department of the State.
            of Texas, prosecuting   or defending in any action
            in their official   capacity,  shall be required to
            give bond on any appeal ‘or writ of error taken by
            it, or either of them, in any civil    case .I(
                  3 Tex. Jur..    328 ’

                  It is not, of course, our contention that article
       2276, which refers to appeal bonds in civil      actions,  would~ex-
       empt the state as a judgment creditor    from being bound by the
       principle  that a sheriff  has the right to require an Indemnity
       bond before levying execution on personal property.        But, in
       the absence of express statutory immuulty ir         this particular
       instance,  we believe the general theory o h state exemption from
       the requirement to give bond would apply.       After all, the sher-
       iff is an officer   of the court.  As  such  he  is not entitled     to
       immunity for doing his duty in respect to the sovereignty         of
       which he is an important agent.
                   Article    6873 of the Revised   Civil   Statutes,   1925,
       provides   as follows:
Eon. Orville S. Carpenter, June 8, 1939, page 4


     be reTtired to (givebcod on any sppeal or writ
     of error taken by it, or either of thm, In any
     oivil ca8e."
     3Tex.Ju.r.. 928
          It la not, of oourse, our oontentlonthat arti-
ale 2270, -.lhioh
                refers to appeal bonds in a1vl.laatiom,
uoald exempt the state aa a judgment oredltorfrom being
bound by the prinolplethat a aheriif has the Pigbtto re-
quire an indeanlty bond beiore levying execution QIIper-
sonal property. But, in the absenue of express statutow
imaunity,in this partioular instenoe,we believe the
general theory oi state exemptiaafronthe requirementto
give bond would apply. After all, the sherlrf Is M offl-
oar or the court. AE suoh he la not entitledto immnity
for doing cis duty in reepeot to the sovereigntyoi whioh
he is en importantagent.
          Article 6875 of the Revised Civil Statutes, 1925,
provides as iollcave:
         %aoh sheriff shall execute all process and
    preoepta direoted to him by legs1 authority,an4
    make return thereof to the proper oourt on or be-
    fore the day to whlohthe saue is returnable;and
    any sheriff who shall rail so to do, or who shall
    mak6 a false return on any process or preoept
    shall, for every suoh offense, be liable to be
    fined by the oourt to whioh suoh process is returu-
    able-,as ror a contempt,not exceedingone hundred
    dollars at the discretion of the cart, which
    fine shall,gu to the county treasury; and suoh
    sheriff shall also be liable to the party injur-
    ed for all dmag:es he muy sustain."
          It is our opinion that a sheriii is not justi-
lied In refusing to levy exeoution under a judgment in
favor of the Tex&.sUnemployment COmpensation Commission
on chattels oi a judeptantdebtor beoause he has not been
f.m:lsh=dan ind~emitg bond by the state.

          TLe sawer to your first riU8tZtI.al
                                           elimiuateetha
necessity of considering the +estion of %&ether or not
the state can rumish nn indemnity bond.
Eon. Orville S. Gerpenter, June 8, 1939, Page 5

         Trustfng that the above fully answers the in-
cpirlee submitted,we are
                                  YoLlm very truly
