The Attorney General of Texas 

January 21, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 70711 

512/475-2501 

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Telecopier 51Z47502SS 

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5121225-4191 

An Equal OpportunityI 

Affirmative Action EmptOyer 

Ms. Joyce Tompkins 

Fort Bend County Auditor 

P. 0. Drawer 549 

Richmond, Texas 77469 

Opinion No. MW-431 

Ret Procedure to be followed 

by justice of peace in forcible 

entry and detainer actions and 

writs of restitution 

Dear Ms. Tompkins: 

You ask whether, in an action of forcible entry and detainer. it 

is: 

the correct procedure for [a justice of the peace] 

to collect the monies for the writ of restitution 

before the forcible detainer is served? 

Articles 3973 through 3994, V.T.C.S.. provide for an action of 

forcible entry and detainer. Any justice of the peace of the precinct 

in which the property in question is situated has jurisdiction over 

such cause of action. V.T.C.S. art. 3973. Rules 738 through 755 of 

the Texas Rules of Civil Procedure govern the procedure therein. 

Rule 748 states that: 

If the judgment or verdict be in favor of the 

plaintiff, the justice shall give judgment for 

plaintiff for restitution of the premises, costs, 

and damages; and he shall award his writ of 

restitution. If the judgment or verdict be in 

favor of the defendant, the justice shall give 

judgment for defendant against the plaintiff for 

costs and any damages. No writ of restitution 

shall issue until the.expiration of five days from 

the time the judgment is signed. 

Rule 755 provides that: 

The writ of restitution, or execution, or both, 

shall be issued by the clerk of the county court 

according to the judgment rendered, and the same 

shall be executed by the sheriff or constable, as 

p. 1475 
Ms. Joyce Tompkins - Page 2 (MW-431) 

in other cases; and such writ of restitution shall 

not be suspended or superseded in any case by 

appeal from such final judgment in the county 

court. 

We understand from the context of your letter that you are 

essentially asking whether the following procedure is permissible; an 

aggrieved property owner files a written sworn complaint with a 

particular justice of the peace, said justice collects for the cost of 

executing the citation and, in addition, for the costs connected with 

issuing and executing a writ of restitution. The justice then 

allocates the charges for the writ of restitution between the county 

clerk and the sheriff or constable. 

In order to answer your question, we must focus upon other rules 

of procedure. Rule 523 reads as follows: 

All rules governing the district and county courts 

shall also govern the justice courts, insofar as 

they can be applied, except where otherwise 

specifically provided by law or these rules. 

Rules 143 et. seq. apply to district and county courts. Rule 143 

states that: 

A party seeking affirmative relief may be ruled to 

give security for costs at any time before final 

judgment, upon motion of any party, or any officer 

of the court interested in the costs accruing in 

such suit, or by the 'court upon its own motion. 

If such rule be entered against any party and he 

failed to comply therewith on or before twenty 

(20) days after notice that such rule has been 

entered, the claim for affirmative relief of such 

party shall be dismissed. 

Rule 144 reads as follows: 

All bonds given as security for costs shall 

authorize judgment against all obligers in such 

bond for the said costs, to be entered in the 

final judgment of the cause. 

Rule 146 states that: 

In lieu of a bond for costs, the party required to 

give the same may deposit with the clerk of court 

or the justice of the peace such sum as the court 

p. 1476 
Ms. Joyce Tompkins - Page 3 N-431) 

or justice from time to time may designate es 

sufficient to pay the accrued costs. 

See also Rules 145 (Affidavit of Inability); 148 (Secured by other 

bond). 

Although some provisions of Rules 143 et. seq. were emended in 

1971, said provisions were the same in all material respects in 1966, 

when Mosher v. Tunnell. 400 S.W.2d 402 (Tex. Civ. App. - Houston 1966, 

writ ref'd n.r.e.), was decided. In that case the court stated as 

follows: 

We are of the view that Rule 143 provides for a 

bond conditioned that the principal and the 

sureties will pay all costs es may be adjudged 

against the principal in trial of the case. It is 

1; effect an op;n bond to secure payment of 

whatever costs might accrue. It does not 

authorize the court to fix a specific amount of 

the bond... Too, Rule 144 provides the bond shall 

authorize judgment against the obligers for said 

costs. This means such costs es shell be adjudged 

against the principal whatever be the amount... 

The deposit of court costs, as distinguished from 

a bond es security for costs, is provided for by 

Rule 146 end clearly contemplates a deposit only 

for accrued costs.... (Emphasis added). 

400 S.W.2d at 404-05. 

In Buck v. Johnson, 495 S.W.2d 291 (Tex. Civ. App. - Waco 1973, 

no writ), the court, 

that: 

relying upon Mosher v. Tunnell, supra. stated 

Taking [Rules 143, 146, end 1481 together... they 

mean this: When a party is ruled for costs, he is 

required to timely furnish and file an open end 

cost bond; however, the party may, at his option, 

in lieu of a cost bond file with the clerk such 

sums es the court may from time to time require to 

cover accrued costs. In other words, the option 

lies with the party ruled for costs, end not with 

the court, as to whether a cost bonds shell be 

furnished or a deposit in lieu of bond. (Emphasis 

in original). 

495 S.W.2d at 298. See also, Dilmore v. Russell, 519 S.W.2d 278 (Tex. 

Cl". App. - Dallas 1975, no writ). 

p. 1477 
Ms. Joyce Tompkins - Page 4 (MW-431) 

A writ of restitution is a post-judgment remedy, the purpose of 

which is to restore the property at issue in the forcible detainer 

action to the party adjudged to be in rightful possession thereof. In 

a particular case, the writ may never issue. For example, the writ 

would not issue if the defendant prevails in the suit. If the writ 

does issue, it will issue only after judgment in the case is rendered 

-- to be precise, not less than five days after the judgment is 

signed. - See Rule 748. 

The cases discussed above highlight a crucial distinction between 

Rules 143 and 146. The former permits a court to rule the party 

seeking affirmative relief for costs, in which event said party must 

furnish and file an open-end cost bond. This bond will secure payment 

of "whatever costs might accrue." Masher v. Tunnell, supra, at 401. 

Under Rule 146, however, said party may elect to file with the clerk 

of the court such sums as the court may require to cover accrued 

costs. In short, Rule 143 contemplates a cost bond covering costs 

that r&& accrue in the future, while Rule 146 permits the payment of 

costs already accrued. 

Based on the facts you present, we conclude that the precise 

procedure you describe is impermissible. The justice of the peace is 

in effect requiring complainants in forcible entry and detainer 

actions to pay for costs that might or might not accrue at the time 

they file their complaint. This cannot be done. First, at the time 

the complaint is filed, it will not be known whether a writ of 

restitution will ever issue. If such a writ is awarded, it may not 

issue until the expiration of five days after the judgment is signed. 

Thus, when the complaint is filed, the costs connected with the writ 

will not have "accrued" within the meaning of Rule 146. Second, Buck 

v. Johnson, m, holds that the option lies with the party ruled for 

costs, not with the court, as to whether to furnish a cost bond or a 

deposit in lieu of a bond. Thus, even when the costs connected with 

the writ do accrue, the court could not order them paid in the manner 

prescribed in Rule 146. 

We emphasize, however, that although the justice may not proceed 

in the manner you describe, he may, pursuant to Rule 143, require the 

complainant to furnish security for costs at the time the complaint is 

filed, or thereafter. 

SUMMARY 

In an action of forcible entry and detainer, 

a justice of the peace may not collect the costs 

connected with a writ of restitution when the 

p. 1478 
Ms. Joyce Tompkins - Page 5 (MW-431) 

complaint is filed. He may, however, require the 

complainant to furnish security for costs. 

=@ 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison. Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1479