Archive for the ‘Texas law’ Category
This is a collection of links to Texas appellate opinions touching on various aspects of wage garnishment. All links are to Google Scholar. Cases arranged by date. The Texas court system has fourteen Courts of Appeals that review both civil and criminal appeals, except for death penalty cases, a Court of Criminal Appeals that has the final appellate jurisdiction in criminal cases, and a Supreme Court which has the final appellate jurisdiction in civil and juvenile cases.
- Southwestern Warehouse Corporation v. Wee Tote, Inc., 504 SW 2d 592 – Tex: Court of Civil Appeals 1974
Issue: Constitutional Due Process of pre- judgment garnishment. Not specifically wage garnishment.
- Prewitt v. Smith, 528 SW 2d 893 – Tex: Court of Civil Appeals, 3rd Dist. 1975
Held that funds of the State’s retirement system are “a part of a member’s compensation or wages which are not subject to garnishment,” citing Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, 741 (1928); Tex. Const. Art. XVI, Sec. 28. Sydnor v. City of Galveston, 15 S.W. 202 (Tex.App.1890), holds that amounts due a physician for professional services for a specific sum per day are not subject to garnishment. Bonus or commissions payable to a salesman at year’s end in addition to his regular salary is exempt as current wages for personal service. J.M. Radford Grocery Co. v. McKean, 41 S.W.2d 639 (Tex.Civ.App.1931, no writ). Commissions on the sale of gasoline and oil, payable monthly to a service station operator, were exempt. Alemite Co. of North Texas v. Magnolia Pet. Co., 50 S.W.2d 369 (Tex.Civ.App.1932, no writ).
- King v. Floyd, 538 SW 2d 166 – Tex: Court of Civil Appeals 1976
Money owed by Houston Oilers to former player for breach of an employment contract constituted current wages and therefore exempt from garnishment.
- United States v. Stelter, 553 SW 2d 227 – Tex: Court of Civil Appeals, 8th Dist. 1977
Issue: Can the ex-wife in a Texas divorce, who has been awarded a portion of the military retirement pay of her ex-husband as her share of the community property, garnish the United States under 42 U.S.C. Sec. 659. Answer: Yes. REVERSED by Texas Supreme Court in United States v. Stelter, 567 SW 2d 797 on grounds of sovereign immunity.
- United States v. Fleming, 565 SW 2d 87 – Tex: Court of Civil Appeals, 8th Dist. 1978
Military retirement pay is not “current wages,” but is property and it is not exempt from garnishment. Case reversed on other grounds. The procedure followed was in violation of due process rights in that it was a prejudgment garnishment; also, it was carried out under an unconstitutional statute.
- United States v. Stelter, 567 SW 2d 797 – Tex: Supreme Court 1978
At the time of this case 42 USC 659 gave consent to suits for “legal obligations to provide child support or make alimony payments,” but 42 USC 662(c) specifically excluded “community property settlement, equitable distribution of property, or other division of property between spouses or former spouses” from the meaning of alimony. 42 USC 662(c) has since been repealed.
- United States v. Wakefield, 572 SW 2d 569 – Tex: Court of Civil Appeals, 2nd Dist. 1978
(1) “[G]arnishment of military pay involves suit against the United States and raises the issue of sovereign immunity. An order for an allotment does not involve suing the United States. It merely requires LeMaster to direct the United States Air Force to pay the retirement benefits to Mrs. Wakefield. No issue of sovereign immunity is raised.”(2) “It is well settled that garnishment should be in the amount of the debt absolutely owed at the time the garnishee files his answer. Burkitt v. Glenney, 371 S.W.2d 412 (Tex.Civ.App.—Houston 1963, writ ref. n.r.e.). For LeMaster’s retirement pay to accrue he must remain alive. Therefore, the debt being garnished is contingently but not absolutely owed. The trial court erred in ordering garnishment of future accruing military retirement pay.”
- Texaco, Inc. v. LeFevre, 610 SW 2d 173 – Tex: Court of Civil Appeals 1980
A New York court ordered Texaco to withhold wages. A Texas court ordered Texaco to not withhold wages. Texaco sought to resolve the conflicting court orders by way of interpleader in federal court. The Federal District Court ruled the New York wage garnishment should prevail. The Texas Court of Appeals decided the federal court judgment should be honored.
We hold that Texaco was entitled to submit the cause to the federal district court, that that court was empowered under the above mentioned statutes to determine the questions involved and that our state court was bound to follow the decision of the federal district court even if the effect would be to allow the garnishment of wages, which our state court could not do because of the prohibition of art. 3836 and art. 4099, V.A.C.S., and art. 16, § 28 Constitution of the State of Texas.
- Benton v. Wilmer-Hutchins Ind. Sch. Dist., 662 SW 2d 696 – Tex: Court of Appeals, 5th Dist. 1983
A school district decided it had overpaid its teachers by mistake one year and that it would simply deduct the over-payments from salary the next year. The Texas Court of Appeals ruled this to be improper.
The district contends that since it has a duty to recover public funds paid out under a mistake of fact, it may resort to self-help by deducting the overpayments from current salaries due. We do not agree. By such action the district is treating current salaries as already paid to the extent of the previous overpayments, contrary to the common-law rule that mutual debts do not extinguish each other in the absence of agreement or judicial action.The teachers could either agree to the repayment or the school district could sue the teachers and prove the claim. But, the school district could not just withhold the money.
- Davidson Texas, Inc. v. Garcia, 664 SW 2d 791 – Tex: Court of Appeals, 3rd Dist. 1984
A creditor sought to garnish money owed by Santa Fe Energy to debtor, who was not an employee. Debtor provided personal service as a leasing agent and real estate title examiner for Santa Fe Energy’s oil and gas business without being on Santa Fe Energy’s payroll. He was paid $200 per day for his services, plus expenses. He did no work for any business other than Santa Fe Energy. He worked for Santa Fe Energy full time. Santa Fe did not withhold taxes or pay any share of debtor’s Social Security. Although the debtor’s daily activity was self-supervised, he was very specifically directed by Santa Fe Energy to the oil and gas lands they were interested in. The creditor argued that as an independent contractor, and not an employee, the debtor’s payments from Santa Fe Energy were not “wages” exempt from garnishment.The Texas Court of Appeals stated, “The garnishment exception for current wages applies without regard to whether compensation is denominated as “wages” or “salary,” the controlling issue being whether it is compensation for personal service.” citing King v. Floyd, 538 S.W.2d 166 Tex.Civ.App.1976. Additionally,
In Prewitt v. Smith, 528 S.W.2d 893, 896 (Tex.Civ.App.1975, no writ) this Court held that funds of the State’s retirement system are “a part of a member’s compensation or wages which are not subject to garnishment,” citing Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, 741 (1928); Tex. Const. Art. XVI, Sec. 28. Sydnor v. City of Galveston, 15 S.W. 202 (Tex.App.1890), holds that amounts due a physician for professional services for a specific sum per day are not subject to garnishment. Bonus or commissions payable to a salesman at year’s end in addition to his regular salary is exempt as current wages for personal service. J.M. Radford Grocery Co. v. McKean, 41 S.W.2d 639 (Tex.Civ.App.1931, no writ). Commissions on the sale of gasoline and oil, payable monthly to a service station operator, were exempt. Alemite Co. of North Texas v. Magnolia Pet. Co., 50 S.W.2d 369 (Tex.Civ.App.1932, no writ).Under the specific facts of this case, the court held that the money owed was for personal services and therefore exempt from a garnishment.
- Hennigan v. Hennigan, 666 SW 2d 322 – Tex: Court of Appeals 1984
The Texas Turnover and do an attorney’s receivables have the characteristics of ‘wages’ exempt from execution? This is the case to look to for some answers. If garnishment is not an effective method for collecting a judgment from canny uncooperative debtors, like lawyers, Texas has Civil Practice &. Remedies Code § 31.002 (former TEX.REV.CIV.STAT.ANN. art. 3827a), the Texas Turnover Statute, which allows courts to assist creditors collect judgments by digging a little deeper.
The question of whether attorney fees constitute current wages, thus being exempt from garnishment, was answered negatively in First National Bank of Cleburne v. Graham, 22 S.W. 1101 (Tex.Civ. App.1889, no writ). Almost as if it were anticipating our question, that court stated:“Can an attorney’s fee for legal services rendered or to be rendered in a single case, or in the transaction of a single matter, or in the transaction of any amount of legal business, in any manner be correctly termed “current wages,” where he has not been hired for his services by the day, week, or month, to be paid at the expiration of the time for which he was hired, and not in proportion to the business done? We think not.”
- City of Houston v. Nelius, 693 SW 2d 567 – Tex: Court of Appeals 1985
This is another case where an employer (City of Houston) withheld pay from an employee (a police officer) who owed the city money, along the lines of Benton v. Wilmer-Hutchins Ind. Sch. Dist.. Like the Benton case, the employer lost.
- Sloan v. Douglass, 713 SW 2d 436 – Tex: Court of Appeals, 2nd Dist. 1986
- Barlow v. Lane, 745 SW 2d 451 – Tex: Court of Appeals, 10th Dist. 1988
- Cain v. Cain, 746 SW 2d 861 – Tex: Court of Appeals, 8th Dist. 1988
- Davis v. Raborn, 754 SW 2d 481 – Tex: Court of Appeals 1988
- Schmerbeck v. River Oaks Bank, 786 SW 2d 521 – Tex: Court of Appeals, 6th Dist. 1990
- Caulley v. Caulley, 806 SW 2d 795 – Tex: Supreme Court 1991
- Orange County v. Ware, 819 SW 2d 472 – Tex: Supreme Court 1991
- Tamez v. Tamez, 822 SW 2d 688 – Tex: Court of Appeals, 13th Dist. 1991
- AMERICAN EXP. v. Harris, 831 SW 2d 531 – Tex: Court of Appeals 1992
- Knighton v. IBM, 856 SW 2d 206 – Tex: Court of Appeals 1993
- Bergman v. Bergman, 888 SW 2d 580 – Tex: Court of Appeals, 8th Dist. 1994
- Foreness v. Hexamer, 971 SW 2d 525 – Tex: Court of Appeals, 5th Dist. 1997
- General Elec. Capital Corp. v. ICO, INC., 230 SW 3d 702 – Tex: Court of Appeals 2007
- TEXAS WORKFORCE COMMISSION v. BUSKE LINES, INC., Tex: Court of Appeals, 12th Dist. 2010
- Stanley v. Reef Securities, Inc., 314 SW 3d 659 – Tex: Court of Appeals, 5th Dist. 2010
- Marrs v. Marrs, 401 SW 3d 122 – Tex: Court of Appeals 2011
- Heller v. Heller, 359 SW 3d 902 – Tex: Court of Appeals, 9th Dist. 2012
- Stephens v. DYCK O’NEAL, INC., Tex: Court of Appeals, 1st Dist. 2012
- Palmer v. Palmer, Tex: Court of Appeals, 2nd Dist. 2012
- Free v. Lewis, Tex: Court of Appeals, 13th Dist. 2012
- Spencer v. GC Services Limited Partnership, Tex: Court of Appeals, 1st Dist. 2013
I’m not messing with Texas. Seriously, I’m not. It just so happens that I’m spending a fair amount of time these days researching the Texas laws relating to garnishment. In addition to pure judicial garnishment and pure administrative garnishment, child support judicial ‘wage garnishment’ is a separate procedural category.
There are, at least, three general categories of garnishment in Texas:
(1) Traditional judicial civil garnishment under Texas CP §63.001 to §63.008, for the collection of private, non-support, debts. Generally, the Texas Constitution (Article 16 Sec. 28) prohibits wage garnishment for these types of debts. Also, Tex. CP § 63.004 specifically exempts current wages from this type of garnishment:
“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.”
(2) Child support wage garnishments may be either judicial or administrative. The rules applicable to judicial child support wage garnishments are contained within Texas Family Code §§ 5.158.001 to 5.158.507. This type of wage garnishment is called “income withholding” or “withholding from earnings,” but it is not called wage garnishment.
(3) Pure administrative wage garnishments. The clearest example of this type is and IRS wage levy for the collection of federal taxes. Administrative garnishments also include debt collection tools related to federal student loans, federally insured student loans (but not private non-insured student loans) and the collection of general debts to the federal government.
From a debtor’s point a view, the distinction between a wage garnishment, an income withholding or a wage levy seems insignificant. The net result is the same in each instance: Money is involuntarily deducted from a paycheck. Of course, the distinctions among the various different types of wage garnishment and non-garnishment wage ‘withholding’ or ‘levy’ is critical if there is a wish to challenge the process.
State and federal statutes (laws) are primary legal authorities. In order to find the specific statutory law you seek and then be able to communicate it to another requires a basic understanding of how a particular collection of laws are organized. Each state does it somewhat differently.
Basic high school civics taught us that lawmakers, such as state legislatures, busily draft, argue and pass ‘bills’ that might or might not be vetoed by the governor. These legislative enactment arise in a random sequence. One day a tax law may be enacted and the next day it could be a family law provision. These assorted laws are then organized into a logical structure called a ‘code’. The process is called codification.
The State of Texas currently has thirty-one statutory codes, including such as the Tax Code, the Family Law Code, the Civil Practice and Remedies Code and so forth. In order to get along well with lawyers and judges in Texas, one must write about the various parts of these Texas statutory codes just the same way they like it done in Texas. This is true of all states. If you want a Texas judge to understand exactly which Texas law you are writing about, you must provide a citation to the law in a format that the Texas judge already understands. This is just an everyday part of writing and talking as if you were a lawyer and know what you are doing. If you screw this up, you instantly brand yourself as a greenhorn, which is not good.
Generally, Texas codes are organized by name, title, subtitle, chapter and section. For example, the Texas statutory law relating specifically to wage withholding for the collection of child support is found in the Texas Family Code, Title 5, Subtitle B, Chapter 158. Within this chapter are collected a number of specific code sections. This is a proper form of citing the specific section the outlines the general rule for child support wage withholding:
Texas Family Code § 5.158.001. Also: TFC § 5.158.001
If you do it this way, everyone will know what you are talking about and you will look like a pro.
Note: The squiggly mark (§) is lawyer shorthand for ‘section’. In this example, § 5.158.oo1 means Title 5, chapter 158, section 001.
Link to Texas Codes
If you want to understand the Texas laws of garnishment, there are three sources of information you need to consult:
- The Texas garnishment statutes, below;
- The Texas Rules of Civil Procedure. There is a whole section about garnishment, and;
- The hundreds of Texas appellate court opinions explaining the statutes and rules of procedure.
I suggest you consult the book – Texas Garnishment Law: Statutes, Court Rules, Cases, Commentary & Forms It is currently a work in progress, but it is currently also a free collection of statutes, rules and court decisions. When I’ve completed the book in a month or two, it will no longer be free.
— Texas wage garnishment
Generally, there is no wage garnishment in Texas for general consumer debts and ordinary private lenders. 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
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
Current through the 1st Called Session of the 82nd Legislature, July 2011. Why? This is 2014!! Because that’s the way it is on the official Texas Legislative website. They plan an update for March 7 – 10, 2014. Check back on March 11, if things go as planned.
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.