                                   The Attorney             General of Texas
                                                      January 21, 1982

MARK WHITE
Attorney General


Supreme Court Building
                                 Ms. Joyce Tompkins                        Opinion No. MW-431
P. 0. Box 12548
                                 Fort Bend County Auditor
Austin, TX. 70711                P. 0. Drawer 549                          Ret Procedure to be followed
512/475-2501                     Richmond, Texas   77469                   by justice of peace in forcible
Telex 9101874-13S7                                                         entry and detainer actions and
Telecopier   51Z47502SS
                                                                           writs of restitution

IS07 Main St., Suite 1400        Dear Ms. Tompkins:
Dallas. TX. 75201
21417426944                            You ask whether, in an action of forcible entry and detainer. it
                                 is:
4824 Alberta   Ave., Suite 180
El Paso, TX. 79905                         the correct procedure for [a justice of the peace]
915/53334S4                                to collect the monies for the writ of restitution
                                           before the forcible detainer is served?
1220 Dallas Ave.. Suite 202
Houston, TX. 77002
                                      Articles 3973 through 3994, V.T.C.S.. provide for an action of
713fS5o.om                       forcible entry and detainer. Any justice of the peace of the precinct
                                 in which the property in question is situated has jurisdiction over
                                 such cause of action. V.T.C.S. art. 3973. Rules 738 through 755 of
808 Broadway, Suite 312
                                 the Texas Rules of Civil Procedure govern the procedure therein.
Lubbock, TX. 79401
8061747.5238
                                       Rule 748 states that:
4309 N. Tenth, Suite S                     If the judgment or verdict be in favor of the
McAllen. TX. 78501
512682-4547
                                           plaintiff, the justice shall give judgment for
                                           plaintiff for restitution of the premises, costs,
                                           and damages; and he shall award his writ of
2M) Main Plaza. Suite 400                  restitution. If the judgment or verdict be in
San Antonio. TX. 78205                     favor of the defendant, the justice shall give
5121225-4191
                                           judgment for defendant against the plaintiff for
                                           costs and any damages. No writ of restitution
An Equal OpportunityI                      shall issue until the.expiration of five days from
Affirmative Action EmptOyer                the time the judgment is signed.

                                       Rule 755 provides that:

                                           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 same
                                           shall be executed by the sheriff or constable, as




                                                                 p. 1475
Ms. Joyce Tompkins - Page 2   (MW-431)




          in other cases; and such writ of restitution shall
          not be suspended or superseded in any case by
          appeal from such final judgment in the county
          court.

     We understand from the context of your letter that you are
essentially asking whether the following procedure is permissible; an
aggrieved property owner files a written sworn complaint with a
particular justice of the peace, said justice collects for the cost of
executing the citation and, in addition, for the costs connected with
issuing and executing a writ of restitution. The justice then
allocates the charges for the writ of restitution between the county
clerk and the sheriff or constable.

     In order to answer your question, we must focus upon other rules
of procedure. Rule 523 reads as follows:

         All rules governing the district and county courts
         shall also govern the justice courts, insofar as
         they can be applied, except where otherwise
         specifically provided by law or these rules.

     Rules 143 et. seq. apply to district and county courts.   Rule 143
states that:

         A party seeking affirmative relief may be ruled to
         give security for costs at any time before final
         judgment, upon motion of any party, or any officer
         of the court interested in the costs accruing in
         such suit, or by the 'court upon its own motion.
         If such rule be entered against any party and he
         failed to comply therewith on or before twenty
         (20) days after notice that such rule has been
         entered, the claim for affirmative relief of such
         party shall be dismissed.

    Rule 144 reads as follows:

         All bonds given as security for costs shall
         authorize judgment against all obligers in such
         bond for the said costs, to be entered in the
         final judgment of the cause.

    Rule 146 states that:

         In lieu of a bond for costs, the party required to
         give the same may deposit with the clerk of court
         or the justice of the peace such sum as the court




                               p. 1476
Ms. Joyce Tompkins - Page 3   N-431)




          or justice from time to time may designate es
          sufficient to pay the accrued costs.

See also Rules 145 (Affidavit of Inability); 148 (Secured by other
bond).

     Although some provisions of Rules 143 et. seq. were emended in
1971, said provisions were the same in all material respects in 1966,
when Mosher v. Tunnell. 400 S.W.2d 402 (Tex. Civ. App. - Houston 1966,
writ ref'd n.r.e.), was decided. In that case the court stated as
follows:

         We are of the view that Rule 143 provides for a
         bond conditioned that the principal and the
         sureties will pay all costs es may be adjudged
         against the principal in trial of the case. It is
         1; effect an op;n bond to secure payment of
         whatever costs might accrue.        It does not
         authorize the court to fix a specific amount of
         the bond... Too, Rule 144 provides the bond shall
         authorize judgment against the obligers for said
         costs. This means such costs es shell be adjudged
         against the principal whatever be the amount...
         The deposit of court costs, as distinguished from
         a bond es security for costs, is provided for by
         Rule 146 end clearly contemplates a deposit only
         for accrued costs.... (Emphasis added).

400 S.W.2d at 404-05.

     In Buck v. Johnson, 495 S.W.2d 291 (Tex. Civ. App. - Waco 1973,
no writ), the court, relying upon Mosher v. Tunnell, supra. stated
that:

         Taking [Rules 143, 146, end 1481 together... they
         mean this: When a party is ruled for costs, he is
         required to timely furnish and file an open end
         cost bond; however, the party may, at his option,
         in lieu of a cost bond file with the clerk such
         sums es the court may from time to time require to
         cover accrued costs. In other words, the option
         lies with the party ruled for costs, end not with
         the court, as to whether a cost bonds shell be
         furnished or a deposit in lieu of bond. (Emphasis
         in original).

495 S.W.2d at 298. See also, Dilmore v. Russell, 519 S.W.2d 278 (Tex.
Cl". App. - Dallas 1975, no writ).




                               p. 1477
Ms. Joyce Tompkins - Page 4   (MW-431)




     A writ of restitution is a post-judgment remedy, the purpose of
which is to restore the property at issue in the forcible detainer
action to the party adjudged to be in rightful possession thereof. In
a particular case, the writ may never issue. For example, the writ
would not issue if the defendant prevails in the suit. If the writ
does issue, it will issue only after judgment in the case is rendered
-- to be precise, not less than five days after the judgment is
signed. -See Rule 748.

     The cases discussed above highlight a crucial distinction between
Rules 143 and 146. The former permits a court to rule the party
seeking affirmative relief for costs,  in which event said party must
furnish and file an open-end cost bond. This bond will secure payment
of "whatever costs might accrue." Masher v. Tunnell, supra, at 401.
Under Rule 146, however, said party may elect to file with the clerk
of the court such sums as the court may require to cover accrued
costs. In short, Rule 143 contemplates a cost bond covering costs
that r&&   accrue in the future, while Rule 146 permits the payment of
costs already accrued.

     Based on the facts you present, we conclude that the precise
procedure you describe is impermissible. The justice of the peace is
in effect requiring complainants in forcible entry and detainer
actions to pay for costs that might or might not accrue at the time
they file their complaint. This cannot be done. First, at the time
the complaint is filed, it will not be known whether a writ of
restitution will ever issue. If such a writ is awarded, it may not
issue until the expiration of five days after the judgment is signed.
Thus, when the complaint is filed, the costs connected with the writ
will not have "accrued" within the meaning of Rule 146. Second, Buck
v. Johnson, m,     holds that the option lies with the party ruled for
costs, not with the court, as to whether to furnish a cost bond or a
deposit in lieu of a bond. Thus, even when the costs connected with
the writ do accrue, the court could not order them paid in the manner
prescribed in Rule 146.

     We emphasize, however, that although the justice may not proceed
in the manner you describe, he may, pursuant to Rule 143, require the
complainant to furnish security for costs at the time the complaint is
filed, or thereafter.

                              SUMMARY

               In an action of forcible entry and detainer,
          a justice of the peace may not collect the costs
          connected with a writ of restitution when the




                               p. 1478
Ms. Joyce Tompkins - Page 5    (MW-431)




          complaint is filed. He may, however, require the
          complainant to furnish security for costs.

                                        =@



                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison. Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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