T?EEEA 

OFTEXAS 

July 26, 1961 

Honorable Charles J. Lieck, Jr. 

Criminal District Attorney 

Bexar County 

San Antonio, Texas Opinion No. WW-1099 

Re: Under the facts stated, 

when may the county clerk 

issue a writ of execution 

on a county court judgDear Mr. Lieck: ment and related questions. 

Your letter requesting an opinion has been received and carefully considered by this department. We quote 

from your letter as follows: 

"On April 17, 1961 Welex Inc. 

recovered judgment against Emmett 

Cole, Jr. in said court based upon 

a jur verdict for the sum of 

$796.%7 with 10% interest from May 

19, 1959, and $200.00 attorney's 

fees and all costs of suit. The 

judgment is dated April 17, 1961 

and was signed by the Judge of said 

court April 19, 1961. A motion for 

new trial was filed April 24, 1961, 

and without having been heard, an 

amended motion was filed May 12, 1961.” 

Your first question is whether under the facts 

stated, and assuming that 90 days will elapse for determination of the amended motion, how long will the Clerk have 

to wait before he can lawfully issue a writ of execution? 

Rule 329b, Rules of Civil Procedure, effective January 1, 1961, by which original or amended motions for new 

trials in county court cases are governed is quoted as follows: 

"The following rules shall be 

applicable to motions for new trial 
Honorable Charles J. Lieck, Jr., Page ‘2 (w-1099) 

filed in all district and county 

courts: 

"1. A motion for new trial when 

required shall be filed within ten 

(10) days after the judgment or other 

order complained of is rendered. 

"2. An original motion for new 

trial filed within said ten (10) day 

period may be amended by leave of the 

court. Said amended m~otion shall be 

filed before the original motion is 

acted upon and within twenty (20) days 

after the original motion for new 

trial is filed. Not more than one 

amended motion for new trial may be 

filed. 

“3. All motions and amended 

motions for new trial must be determined within not exceeding forty-five 

(45) days after the original or amended motion is filed, unless by one or 

more successive written agreements of 

the parties In the case filed with the 

clerk of the court the decision of the 

motion Is postponed to a day certain 

speciflcally set out in any such agreement. Any such day certain shall not 

be more than ninety (90) days after 

such original or amended motion is 

filed. 

"4. It shall be the duty of the 

proponent of an original or amended 

motion for new trial to present the 

same to the court within thirty (30) 

days after the same is filed. However, 

at the discretion of the judge, an 

original motion or amended motion for 

new trial may be presented or hearing 

thereon completed after such thirty 

(30) day period. Such delayed hearing 

shall not operate to extend the time 

within which the original or amended 

motion must be determined, unless such 
Honorable Charles J. Lieck, Jr., Page 3 (Ww-1099) 

time be extended by agreement as provided for in the preceding subdivisions 

of this Rule. In the event an original 

motion or amended motion for new trial 

be not presented within thirty (30) 

days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to 

hear evidence relating thereto, such 

motion will be overruled by operation of 

law forty-five (45) days after the same 

is filed, unless disposed of by an order 

rendered on or before said date. In the 

event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this Rule then any 

such original or amended motion, if not 

determined by the court, will be overruled by operation of law ninety (90) days 

after the same is filed or on the latest 

day certain agreed upon, whichever occurs 

first. 

"5. Judgments shall become final 

after the expiration of thirty (30) days 

after the date of rendition of judgment 

or order overruling an original or amended motion for new trial. . . .' 

Rule 627, Rules of Civil Procedure, reads as 

follows: 

"The clerk of the court or the 

justice of the peace shall Issue the 

execution upon such judgment upon the 

application of the successful party 

or his attorney after the expiration 

of twenty days from and after the 

rendition of a final judgment in the 

district or county court or in the 

justice court, and after the overruling of any motion therein for a new 

trial, or in arrest of the judgment, 

if no supersedeas bond has been filed 

and approved." 

As set out in the statute, a motion for a new 

trial must be filed within ten (10) days after entry of 
’ 

Honorable Charles J. Lleck, Jr., Page 4 (m-10%) 

judgment, may be amended once by permission of the court 

within twenty (20) days after filing the original motion 

if the ori 

8 

lnal motion has not been acted upon. Bunker 

v. Lott, 2 2 S.W.2d 879 (Civ.App. 1955, error ref. n.r.e.). 

The original or amended motion should be presented to the 

court within 30 days after filing, but the court has the 

right to extend the time for presentation until the motion 

is overruled by operation of law after forty-five (45) 

days have elapsed. If the court does not rule on the 

original or amended motion within forty-five (45) days 

from the date of filing, it is overruled by operation of 

law unless all parties or their attorneys extend the time 

in writing for a definite period or dav certain for the 

court to rule on the motion. Moore v.-Decuir, 286 S.W.2d 

471 (Civ.App. 1956, error ref.). 

Any such day certain shall not be more than ninety (90) days after the original or amended motion is filed. 

In the event the decision on the motion is postponed by a 

written agreement, the original or amended motion, If not 

determined by the court, will be overruled by operation of 

law ninety (90) days after the same Is filed or on the 

latest day certain agreed upon, whichever occurs first. 

The judgment of the court becomes final thirty (30) days 

after the date of rendition of Judgment or a timely filed 

motion for new trial or amended motion is overruled by the 

court or by operation of law. 

The two important changes in the amendment of 

Rule 32913 which we are concerned with here are the ninety 

(90) day limitation period designed to eliminate unreasonable delay in disposing of motions for new trial and the 

application of this rule to county courts as well as district courts, 

Under'the facts stated In your letter, the judgment in the instant case was properly signed and entered, 

the original and amended motions for new trial were timely 

filed, the amended motion being filed on the 12th day of 

May, 1961. If the motion is not presented within the 

thirty (30) day period after filing and the judge in his 

discretion refuses to hear the motion, the motion Is overruled by operation of law forty-five (45) days after being 

filed which in this case would be June 26, 1961. Assuming 

that there is a written agreement between the parties to 
Honorable Charles J. Lieck, Jr., Page 5 (WW-1099) 

postpone the hearing to a day certain and that the ninety 

(90) day period will elapse with no action taken on the 

amended motion by the court, the 90 day period will be up 

under your facts on August 10, 1961, and the judgment will 

become final Se 

Civil Procedure P 

tember 11, 1961, (see Rule 4, Rules of 

, thirty (30) days after the motion for 

new trial is overruled by operation of law. 

Under Rule 627, Rules of Civil Procedure, which 

provides that execution may issue twenty (20) days "after 

the rendition of a final judgment in the district or county court . . . and after the overruling of any motion therein for a new trial," execution may safely issue, under the 

assumed facts, herein stated, on October 2, 1961, (see Rule 

4, Rules of Civil Procedure), unless a supersedeas bond has 

been filed and approved. 

Therefore, In answer to your first question, under 

the facts stated in your letter and assuming there was a 

written agreement to postpone the hearing to a day certain 

and that 90 days will elapse for the determination of the 

amended motion, the Clerk can lawfully issue a writ of 

execution on October 2, 1961, unless a supersedeas bond 

has been filed and approved. However, under Rule 628, execution may issue within said twenty days under named conditions. 

In your second, third, and fourth questions you 

ask if there is any liability on the part of the Clerk for 

the premature issuance of the execution and, if he refuses 

to issue an execution, which he deems premature, would he 

be liable in damages, or would he be guilty of contempt of 

court for such refusal. 

The general rule seems to be that the premature 

issuance of an execution is an irregularity, but the writ 

must be respected until it is vacated in a direct proceeding for that purpose. House v. Robertson, 36 S.W. 251 

(Civ.App. 1896); Acrey v. Henslee, 2'19 S W.2d 925 (Civ.App. 

1955); Sydnor v. Roberts, 13 Tex. 600; Interstate Life 

Insurance Company v. Arrlngton, 307 S.W.2d 14b 

18 Tex.Jur. 581, Executions, Sec. 43. 

(Ci v.App. 

1957); It is clear 

from a study of the above cited cases that, in the exercise 

of his ministerial duties, there Is no liability on the 

part of the Clerk for the mere issuance of an execution 

which is premature. 
. 

Honorable Charles J. Lieck, Jr., Page 6 (m-1099) 

Although we find no Texas cases holding the 

Clerk liable in damages for the premature issuance of an 

execution, we do find certain cases which indicate that 

the Clerk is not immune from liability where he refuses 

to issue an execution which he deems premature and an 

injury occurs resulting in actual damage to one of the 

parties because of neglect in the discharge of his duties, 

or wilful disregard of the rights of a oarty to an action. 

Moore v. Muse, 47 Tex. 410; Kznney v. Bell,-127 Fed. 1002 

~c.c.A.E.D. Pa. 1904). However, these cases also indicate 

that the Clerk is not liable in damages because of his 

refusal to issue execution where he has a legal reason for 

not doing so. In Kruegal v. Jones, 143 S.W. 989 (Civ.App. 

7912), the Court held that the refusal of the Clerk to 

i.ssuk.an execution under the facts of the case did not 

render him liable in damages, the plaintiff In such circumstances having no right to the writ. 

The situation is much the same In a proceeding 

for contempt of court. If the Clerk refuses to carry out 

the order of the court or neglects to carry out the duties 

imposed by statute in the performance of his ministerial 

duties he may be found guilty of contempt of court but, if 

a party to a suit has no right to the writ, the Clerk is 

not guilty of contempt. 12 Tex.Jur. 159, Clerks of Court, 

Sec. 39; Francis v. State, 156 S.W. 1167 (C.C.A. 1913); 

Kruegal v. Williams, 153 S.W. 903 (Clv.App. 1913, error 

ref.). 

Therefore, in answer to your last three questions, it is the opinion of this department that there is 

no liability on the part of the Clerk for the mere Issuance 

of an execution which is premature and that the writ must 

be respected until it is vacated in a direct proceeding for 

that purpose. Neither is the Clerk liable in damages or 

guilty of contempt of court where he refuses to issue an 

execution which is, in fact, premature, where there is no 

valid judgment and a legal reason for his refusal. However, 

the Clerk may be liable in damages if he refuses to act 

when a party has a right to an execution and his refusal is 

due to the wilful neglect of the discharge of his duties or 

wilful disregard of the rights of a party to an action resulting in actual damage to a party. He may also be found 

guilty of a contempt of court where he neglects to perform 

his duties as a ministerial officer which have been imposed 

by statute and he fails or refuses to carry out the order 

of the court without legal excuse. 
Honorable Charles J. Lieck, Jr., Page 7 (WW-1099) 

SUMMARY 

Under the facts presented, the Clerk 

may lawfully Issue a writ of execution on the judgment on October 2, 

1961. There is no liability on the 

part of the Clerk for the mere premature issuance of an execution but 

the writ may be vacated in a direct 

proceeding for that purpose. The 

Clerk is not liable in damages or 

guilty of contempt of court where he 

refuses to Issue a writ of execution 

which is, in fact, premature. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

1BW:mm 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Ralph R. Rash 

Pat Bailey 

Watson C. Arnold 

J. Milton Richardson 

Byott’ ~P-w-JQ~+ 

Iolz Barron Wilcox 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Morgan Nesbitt