# The Attorney General of Texas
January 21, 1982 MARK WHITE Attorney General

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An Equal OpportunityI Affirmative Action EmptOyer Ms. Joyce Tompkins Fort Bend CountyAuditor P. 0. Drawer 549 Richmond,Texas 77469 OpinionNo. MW-431 Ret Procedure to be followed by justice of peace in forcible entry and detaineractions and writs of restitution
DearMs. Tompkins: You askwhether, in an action of forcible entry and detainer. it is: the correctprocedure for [a justice of thepeace]

to collect themonies for thewrit of restitution before the forcibledetainer is served? Articles 3973 through 3994, V.T.C.S.. provide for an action of forcibleentryand detainer. Any justice of thepeace of theprecinct 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 TexasRules of Civil Proceduregovern theprocedure 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 issueuntil the.expirationof fivedays from the time the judgment is signed. Rule 755provides 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 executedby the sheriff or constable,as

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in other cases;and suchwrit of restitutionshall not be suspended or superseded in any case by appeal from such final judgment in the county court.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 askingwhether the followingprocedure is permissible; an aggrieved property owner files a written sworn complaint with a particular justice of thepeace, said justice collects for the cost of executing the citation and, in addition, for the costs connectedwith issuing and executing a writ of restitution. The justice then allocates the charges for the writ of restitutionbetween the county clerkand the sheriffor constable. In order to answeryour question,we must focus upon other rules ofprocedure. Rule 523 reads as follows:

All rules governing the districtand county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specificallyprovidedby law or these rules. Rules 143 et. seq.apply to districtand county courts. Rule 143 states that:

A party seekingaffirmativereliefmay be ruled to give security for costs at any time before final judgment,uponmotion of any party, or any officer of the court interested in the costs accruing in such suit, or by the 'courtupon 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 shallbe dismissed. Rule 144 readsas 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, theparty required to give the samemay depositwith the clerk of court or the justice of the peace such sum as the court

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or justice from time to time may designate es sufficienttopay 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 provisionswere the same in all material respects in 1966, when Mosherv. Tunnell. 400 S.W.2d402 (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 theprincipal 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 thebond... Too, Rule 144provides thebond shall authorize judgment against the obligers for said costs. Thismeans such costs es shellbe 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.... (Emphasisadded). 400 S.W.2dat 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 courtmay from time to time require to cover accrued costs. In other words, the option lieswith the party ruled for costs, end not with the court, as to whether a cost bonds shell be furnishedor a deposit in lieu of bond. (Emphasis in original). 495 S.W.2dat 298. See also,Dilmorev. Russell, 519 S.W.2d 278 (Tex. Cl". App. - Dallas 1975,nowrit).

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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 theparty adjudged to be in rightfulpossession 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, itwill 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 casesdiscussedabovehighlight a crucialdistinctionbetween Rules 143 and 146. The former permits a court to rule the party seeking affirmative relief for costs, in which event said party must furnishand filean open-end costbond. This bondwill securepayment of "whatever costs might accrue." Masher v. Tunnell,supra, at 401. Under Rule 146, however, said party may elect to filewith 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 thatr&& accrue in the future,while Rule 146permits thepayment of costsalreadyaccrued. Based on the facts you present, we conclude that the precise procedureyou 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 restitutionwill ever issue. If such a writ is awarded, it may not issueuntil the expiration of five days after the judgment is signed. Thus, when the complaint is filed, the costs connectedwith the writ will not have "accrued"within themeaning of Rule 146. Second,Buck v. Johnson,m, holds that the option lieswith theparty 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 connectedwith thewrit do accrue, the court could not order thempaid in themanner prescribed in Rule 146. We emphasize,however, that although the justicemay not proceed in themanner you describe,he may, pursuant to Rule 143, require the complainantto furnish security for costsat 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

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complaint is filed. He may, however, require the complainantto furnish security for costs. =@

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Jon Bible AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE SusanL. Garrison.Chairman Jon Bible Rick Gilpin JimMoellinger BruceYoungblood

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