The HonerableBob Bullock 'OpinionNo. 8-827

Comptroller of Public Accounts L.B.J. State Office Building Re: May a c&stable Austin, Texas 78701 :properly refut%eto levy
on personal property to satisfy a tax judgment .unlessan indemnitybond from the taxing authority is received.

Dear Mr. Bullock:

Your letter asks:

1. Can a levying officer require an indemnitybond from the State of Texas before levying on personalproperty pursuant to a writ of execution in' favor of the State [fortaxes]?

2. Can a levying officer require an indemnitybond from a City before levying on personal property pursuant to a writ of execution in favor of the City [for taxes]?

You explain that the State of Texas and the City of Houston joined to sue a delinquent taxpayer. A default judgmentwas obtained and a writ of executionwas subsequently delivered to a constable in Houston where non-exempt property of the judgmentdebtorwas thought to be located. The constable locatedonly some personal propertypossibly owned by the debtor. Because he is apprehensive that he may be required to defend himself againat a charge of unlawful seizure, the constablehas asked that he be furnishedan indemnitybond before levying on the property.

p.3491The Honorable Bob Bullock - page 2 (H-827)

It is the duty of sheriffsand constables to properly executeprocess and precepts lawfullydirected to them by courts. =% (Tex.Sup. S. Miller Companyv. Evans, 452 S.W.Zd 426

OF -S. arts. m6885,73; Attorney General Opinion H-595 (1975). The powers of both officerswith respect to executingwrits are generally the same. See 52 Tex.Jur.Zd, Sheriffs, 'Constables and Marshalls 99 8,71T Both are liable to the judgment creditor if they fail or refuse to levy upon property subject to execution. V.T.C.S. arts. 3825, 3826, 6887. And both may be liable in trespass for actual and exemplarydamages to the owner of personal propertywrongfully seized. 52 Tex.Jur.Zd, Sheriffs, Constables and Marehalls SS 21, 25, 89.

A person againstwhose personalproperty a wrongful levy ismade also has a cause of action in trespass against
a creditorwho directs or participates in the improper levy. Stevensv. Wolf, 14 S.W. 29 (Tex.Sup. 1890);Wollner v.

.2d 1225 (Tax.Civ. App. -- Amam9=, no 1 !X.civ. Darnell, --94 s.w writ);See also Southwest Bank & T. Co. v. Executive SportsmrAm, 411 S W

. .2hVlOT ?% m.ma 896 (Tf APP. --Dalm972, writ ref'd n.r.e.);McAde: 394 S.W.Zd 662 (Tex.

______r_ nV.-Soil -cT;.naa. -- i 24 Tex.Jur.Zd,Executions 99-194, 196; Jarvis, Creditor's Liability in Texas forWrongful Attachment,Garnishment, or Execution, 708-709 (1963).

The officer to whom executionhas proceedwithout delay to levy upon the defendant as directed by thewrit, but plaintiffgives him other or different 41 Tex.L.Rev; 692,

been deliveredmust property of the if the creditorlawful directions,he Tex. 397 (1883);

_ - . must obey them. Tex. R. Civ. P. 6 S 6. Notwithstanding such directions,however, if the officer in good faith entertains a reasonabledoubt as to the ownership or exempt character of the personal property to be eeized or the legality of its seizure,h;ly;isr;quire indemnityof the creditorbefore proceeding. Fitzgerald, 11 Tex. 417 (1854);Rankin v. Belvm7*.W.?d 908 (Tex.Civ. App. -- Houston r-i=.=, writ ref’d n.r.e.)JFant Millin Co. v. Ma App. -- Dmsdwn ,fTar;l.:"~.sIWg:dT~~SJtl~f)~d,Civ. Sheriffs,Constables and Marshalls 99 51, 52, 53. Indemnity, when given, protects the officer in case his authority to make the levy is later questioned.

p.3492The Honorable Bob Bullock - page 3 (H-827)

More than one hundred twentyyears ago, the Illies court, like other courts since, said that an officerfdced with the dilemma of being liable to the creditor if he 'fails to ~levyon availableproperty of the debtor, butliable to the debtor or a third person if he attempts to levy on property legallyunavailable to satisfy the debt,may properly shift the risk of litigation to the creditordemanding the levy if the legal availabilityor non-availabilityof the property,for levy is genuinely subj,ect to reasonabledoubt. Failure to allow such a coursewould cause rank injustice.

In our opinion, the peril of the levying officer is the
samewhen the state or another taxing authority is the judgment creditor. If he fails to properly execute the writ, he will be liable to the taxing authority under,the statutes,and if he levies on personal property not legally available to satisfy the debt he will be liable to the person harmed.

If the sheriff or constable acts improperlyat the direction of an officer of the creditor-taxingauthority, the person harmed is prevented by the doctrine of governmental immunity from suing the taxing unit for dsmages, but not from suing the officer directing him to so act. Black
v. Baker, 111 S.W.Zd 706 (Tex.Sup. 1938). An officer participates in the commission of a trespasswithout legal authoritv is oersonallv liable as a tortfeasor and is not
.t protected fro; suit by-the immunity of the governmentaluni forwhich he purports to act. Griffinv. Hawn, 341 S.W.Zd 151 (Tex.Sup. 1960);Cobb v. Harrin toTiT mS.W.2d 709 --'+.2d 272 (Tex.Civ. (Tex.Sup. 1945); State v. Lain,
-- App. -- Waco 1960),$ff'd, 349 S.W.2d 579 (1961);Worsham \ Votasberaer.,

129 S.W. 157 (Tex.Civ. App. -- 1910, no writ1 ------* neral LetterAdvisory No. 24 (1973);47 Tex.Jur. 'ublicOfficers 9 130 at 170. See also Burton v. Rogers, -- - r. T 826, Attornev Ge P -- 504 S.W.2d 404 (Tex.Sup. 1974);W.D. Iiaden Cornan Sup.mB);r en o Realty Dodgen, 308 S.W.Zd 838 (Tex. SRyvCorporation " Avila, 406 S.W.Zd 523 (Tex.Civ. App. -- Corpus Christi1966, no writ); Calvert v. Harris Count Water Controlk s pist., 368 S.W.2d 8'55 =C v. Austin 1963.writ rel PTii1r.e.l. dP. --

Since no officer of htaxing unit has legal authority-to direct a sheriff or

p.3493The Honorable Bob Bullock - page 4 (H-827)

constable to do an illegal act, an officer of a'taxing authoritywho demands that a sheriff or constable levy upon personal property shown to have been legallyunavailable for levy exceeds the legitimatepower of his own office and is personally liable for the harm done. See Black k Baker, - supra.
Sheriffs and constables are already protected by law against the risks of litigationarising from the proper discharge of their duty. Not only are they protected by the doctrine of governmental immunity against liability for acts done within the scope of their authority, they are entitled to legal representationat the expense of the county in litigation arising from such acts. Turner v. Cook, 502 S.W.2d 824 (Tex.Civ. App. -- CorpusChristilm no writ); V.T.C.S. art. 332~;Attorney General LetterAdvisory No. 24 (1973). See also Attorney General Opinions H-544 (1975),H70 (1973)t7Tex.Jur.Zd, Public Officers S 130.

When a constable or sheriff ismet with a demand by an officer of a taxing authority that he levy upon personal property concerningwhich there is a genuine reasonable doubt about its legal availability for levy,we think the constable or sheriffmay properly require an indemnitybond from the demanding officer -- but not from the taxing unit -- before proceeding. Cf. V.T.C.S. art. 279a;Attorney General Opinion S-71 (1953).-

If a sheriffor constable fails or refuses to levy upon legally availablepersonal property of the debtorwithout a leaallv sufficient reason, the creditor-taxinaauthoritymay recove; its loss from him; even though he may-have unsuccessfully demanded indemnity. Rankin v. Belvin, supra. But if his
reason for reluctancetdvyisicient, he may properly refuse to make the levy until the risk of illegality is shoulderedbv the official who demands that he do so. Illies 5 Fi%sgerald, supra.

p.3494The Honorable Bob Bullock - page 5 (H-827)

SUMMARY

When a constable or sheriff is met with

a demand by an officer of a creditortaxing authority that he levy upon personal property concerning which there is a genuine reasonable doubt about its legal availability to satisfy the judgment against the taxpayer-debtor, he may properly require an indemnity bond from the demanding officer as an individual, but not from the taxing authority for which the officer purports to act.
/\Very truly yours,

APPROVED:

jwb

p. 3495