Boring Details

Garnishment

New — Ask your questions about garnishment law here.

— Texas wage garnishment

Generally, there is no wage garnishment in Texas. The Texas Constitution makes current wages exempt property. There are two exceptions under the Texas Constitution for child support and spousal maintenance. Federal law makes other exceptions for such debts as student loans and certain taxes.

Texas Constitution –
Article 16 Sec. 28. Garnishment of wages.

“No current wages for personal service shall ever be subject to garnishment, except for the enforcement of court-ordered:
(1) child support payments; or
(2) spousal maintenance.”

The average creditor who sues an employee and gets a judgment may not garnish any current wages.  Those who are self-employed generally do not receive “wages.”

If a debt collector wrongfully threatens one employed in Texas with wage garnishment, when he has no legal right to do so, he may be in violation the Federal Fair Debt Collection Practices Act.

Texas Payday Law §61.018 provides:

DEDUCTION FROM WAGES. An employer may not withhold or divert any part of an employee’s wages unless the employer:
(1) is ordered to do so by a court of competent jurisdiction;
(2) is authorized to do so by state or federal law; or
(3) has written authorization from the employee to deduct part of the wages for a lawful purpose.

See: Texas Workforce Commission: Deduction Problems

Employer’s obligations

Although an employee’s current wages are exempt from garnishment by ordinary creditors, an employer may control other assets of the employee that are not exempt.  Special care must be given to the definition of “current wages.”

HRtools.com – Summary of Texas garnishment laws with emphasis on employer’s obligations. (Free registration required to access)

Texas Code (Tex. Code) – Civil Practice and Remedies Code | Title 3 – Extraordinary Remedies | Chapter 63 – Garnishment

Tex. Code CP §63.001 to §63.008
As of January 9, 2009
Source: Texas Legislature

• Section 63.001. Grounds.
  A writ of garnishment is available if:
  • (1) an original attachment has been issued;
  • (2) a plaintiff sues for a debt and makes an affidavit stating that:
    • (A) the debt is just, due, and unpaid;
    • (B) within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt; and
    • (C) the garnishment is not sought to injure the defendant or the garnishee; or
  • (3) a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.

  ---

• Section 63.002. Who may issue.The clerk of a district or county court or a justice of the peace may issue a writ of garnishment returnable to his court.
  

  ---

• Section 63.003. Effect of service.
  • (a) After service of a writ of garnishment, the garnishee may not deliver any effects or pay any debt to the defendant. If the garnishee is a corporation or joint-stock company, the garnishee may not permit or recognize a sale or transfer of shares or an interest alleged to be owned by the defendant.
  • (b) A payment, delivery, sale, or transfer made in violation of Subsection (a) is void as to the amount of the debt, effects, shares, or interest necessary to satisfy the plaintiff’s demand.

  ---

• Section 63.004. Current wages exempt.
  Except as otherwise provided by state or federal law, current wages for personal service are not subject to garnishment. The garnishee shall be discharged from the garnishment as to any debt to the defendant for current wages.

  ---

• Section 63.005.Place for trial.
  • (a) If a garnishee other than a foreign corporation is not a resident of the county in which the original suit is pending or was tried and a party to the suit files an affidavit controverting the garnishee’s answer, the issues raised by the answer and controverting affidavit shall be tried in the county in which the garnishee resides. The issues may be tried in a court of that county that has jurisdiction of the amount of the original judgment if the plaintiff files with the court a certified copy of the judgment in the original suit and a certified copy of the proceedings in garnishment, including the plaintiff’s application for the writ, the garnishee’s answer, and the controverting affidavit.
  • (b) If a garnishee whose answer is controverted is a foreign corporation, the issues raised by the answer and controverting affidavit shall be tried in the court in which the original suit is pending or was tried.

  ---

• Section 63.006. Administrative fee for certain costs incurred by employers.
  • (a) An employer who is required by state or federal law to deduct from the current wages of an employee an amount garnished under a withholding order may deduct monthly an administrative fee as provided by Subsection (b) from the employee’s disposable earnings in addition to the amount required to be withheld under the withholding order. This section does not apply to income withholding under Chapter 158, Family Code.
  • (b) The administrative fee deducted under Subsection (a) may not exceed the lesser of:
    • (1) the actual administrative cost incurred by the employer in complying with the withholding order; or
    • (2) $10.
  • (c) For the purposes of this section, “withholding order” means:
    • (1) a withholding order issued under Section 488A, Part F, Subchapter IV, Higher Education Act of 1965 (20 U.S.C. Section 1095a); and
    • (2) any analogous order issued under a state or federal law that:
      • (A) requires the garnishment of an employee’s current wages; and
      • (B) does not contain an express provision authorizing or prohibiting the payment of the administrative costs incurred by the employer in complying with the garnishment by the affected employee.

  ---

• Section 63.007. Garnishment of funds held in inmate trust fund.
  (a) A writ of garnishment may be issued against an inmate trust fund held under the authority of the Texas Department of Criminal Justice under Section 501.014, Government Code, to encumber money that is held for the benefit of an inmate in the fund.(b) The state’s sovereign immunity to suit is waived only to the extent necessary to authorize a garnishment action in accordance with this section.

  ---

• Section 63.008. Fiinancial institution as garnishee.Service of a writ of garnishment on a financial institution named as the garnishee in the writ is governed by Section 59.008, Finance Code.
  

  ---