The Honerable Bob Bullock 'Opinion No. 8-827 

Comptroller of Public Accounts 

L.B.J. State Office Building Re: May a c&stable 

Austin, Texas 78701 :properly refut%e to levy 

on personal property to 

satisfy a tax judgment 

.unless an indemnity bond 

from the taxing authority 

is received. 

Dear Mr. Bullock: 

Your letter asks: 

1. Can a levying officer require an 

indemnity bond from the State of Texas 

before levying on personal property 

pursuant to a writ of execution in' 

favor of the State [for taxes]? 

2. Can a levying officer require an 

indemnity bond 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 

judgment was obtained and a writ of execution was subsequently 

delivered to a constable in Houston where non-exempt 

property of the judgment debtor was thought to be located. 

The constable located only some personal property possibly 

owned by the debtor. Because he is apprehensive that he may 

be required to defend himself againat a charge of unlawful 

seizure, the constable has asked that he be furnished an 

indemnity bond before levying on the property. 

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

It is the duty of sheriffs and constables to properly 

execute process and precepts lawfully directed to them by 

courts. 

(Tex. Sup. =% 

S. Miller Company v. Evans, 452 S.W.Zd 426 

OF -S. arts. m6885,73; Attorney General 

Opinion H-595 (1975). The powers of both officers with 

respect to executing writs 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 exemplary damages to the owner of personal 

property wrongfully seized. 52 Tex.Jur.Zd, Sheriffs, 

Constables and Marehalls SS 21, 25, 89. 

A person against whose personal property a wrongful 

levy is made also has a cause of action in trespass against 

a creditor who directs or participates in the improper levy. 

Stevens v. 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_ 

n V.-Soil 

-cT;.naa. -- 

i 24 Tex.Jur.Zd, Executions 99-194, 

196; Jarvis, Creditor's Liability in Texas for Wrongful 

Attachment, Garnishment, or Execution, 

708-709 (1963). 

The officer to whom execution has 

proceed without delay to levy upon the 

defendant as directed by the writ, but 

plaintiff gives him other or different 

41 Tex.L.Rev; 692, 

been delivered must 

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 reasonable doubt as to 

the ownership or exempt character of the personal property 

to be eeized or the legality of its seizure, h;ly;isr;quire 

indemnity of the creditor before proceeding. 

Fitzgerald, 11 Tex. 417 (1854); Rankin v. Belvm7*.W.?d 

908 (Tex. Civ. App. -- Houston r-i=.=, writ ref’d 

n.r.e.)J Fant 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. 3492 
The Honorable Bob Bullock - page 3 (H-827) 

More than one hundred twenty years 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 ~levy on available property of the debtor, butliable to 

the debtor or a third person if he attempts to levy on 

property legally unavailable to satisfy the debt, may properly 

shift the risk of litigation to the creditor demanding the 

levy if the legal availability or non-availability of the 

property,for levy is genuinely subj,ect to reasonable doubt. 

Failure to allow such a course would cause rank injustice. 

In our opinion, the peril of the levying officer is the 

same when 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 improperly at the 

direction of an officer of the creditor-taxing authority, 

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 trespass without legal 

authoritv is oersonallv liable as a tortfeasor and is not 

protected fro; suit by-the immunity of the governmental uni .t 

for which he purports to act. Griffin v. Hawn, 341 S.W.Zd 

151 (Tex. Sup. 1960); Cobb v. Harrin toTiT mS.W.2d 709 

(Tex. Sup. 1945); State --'+.2d v. Lain, 272 (Tex. Civ. -- 

App. -- Waco 1960),$ff'd, 349 S.W.2d 579 (1961); Worsham \ 

Votasberaer., 129 S.W. 157 (Tex. Civ. App. -- 1910, no writ1 

------* neral Letter Advisory No. 24 (1973); 47 Tex.Jur. 

'ublic Officers 9 130 at 170. -- See also Burton v. - Rogers, 

r. 

T 

Attornev Ge 826, 

P -- 

504 S.W.2d 404 (Tex. Sup. 1974); W.D. Iiaden Corn an 

Dodgen, 308 S.W.Zd 838 (Tex. Sup.mB);r en o Realty 

SRyvCorporation " Avila, 406 S.W.Zd 523 (Tex. Civ. App. -- 

Corpus Christi1966, no writ); Calvert v. Harris Count 

Water Control k 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. 3493 
The Honorable Bob Bullock - page 4 (H-827) 

constable to do an illegal act , an officer of a'taxing 

authority who demands that a sheriff or constable levy upon 

personal property shown to have been legally unavailable for 

levy exceeds the legitimate power 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 litigation arising 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 representation at 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 Letter Advisory 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 is met with a demand by an 

officer of a taxing authority that he levy upon personal 

property concerning which there is a genuine reasonable 

doubt about its legal availability for levy, we think the 

constable or sheriff may properly require an indemnity bond 

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 sheriff or constable fails or refuses to levy upon 

legally available personal property of the debtor without a 

leaallv sufficient reason, the creditor-taxina authority may 

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 

shouldered bv the official who demands that he do so. 

Illies 5 Fi%sgerald, supra. 

p. 3494 
The 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