* Pursuant to 5th Cir. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5th Cir. R.

47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 5, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 06-50200, 

06-50202

Summary Calendar

AF-CAP, INC.,

Plaintiff-Appellant,

v.

REPUBLIC OF CONGO,

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Texas

1:01-CV-321

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This litigation has a long history, as summarized most

recently in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th

Cir. 2006) (Af-Cap III). The dispute centers around Af-Cap’s

attempt to collect on a judgment against the Republic of Congo.

Af-Cap attempted to garnish several companies’ obligations to
1 The Congo had the option of receiving royalty payments in

cash or “in kind” oil, and elected to receive them in kind.

Because the district court found that the oil obligations could

not be garnished, it issued a turnover order that would have

required the Congo to receive its payments in cash. We vacated

that order in Af-Cap III. 462 F.3d at 425–28.

2

render oil to the Congo. The district court found that Texas

garnishment law does not authorize the garnishment of nonmonetary

obligations because they are not garnishable “effects.”1 In Af-Cap

III, we agreed with the district court that Texas law does not

allow for the garnishment of nonmonetary obligations and affirmed

the dissolution of garnishment writs targeted at the companies’ oil

obligations.

Af-Cap now appeals two district court orders that were not

directly at issue in Af-Cap III, one denying a motion for contempt

sanctions and the other refusing to enter new garnishment writs.

These appeals were held in abeyance while Af-Cap III was pending

because they require us to answer the same question addressed in

that appeal: Does Texas law permit the garnishment of nonmonetary

obligations? Our opinion in Af-Cap III answered that question in

the negative. Aware that our answer dooms their appeal of the

orders presently before us, Af-Cap now requests a second bite at

the apple and invites us to certify the question already decided in

Af-Cap III to the Texas Supreme Court. We decline the invitation.

The sole basis of Af-Cap’s appeal is to ask us to certify a

question that we have already answered as between these very
2 We note the district court’s recent colloquy expressing

hesitance to render a final judgment after we remanded this case

“for proceedings consistent with [an] opinion.” Af-Cap III, 462

F.3d at 430. That language was used out of deference to the

district court’s familiarity with this prolonged dispute and

should not be read to imply that unresolved issues necessarily

remain.

3

parties. While the Texas Constitution allows this court to certify

questions to the Texas Supreme Court, certification is not “a

proper avenue to change our binding precedent.” Jefferson v. Lead

Indus. Ass’n, Inc., 106 F.3d 1245, 1247 (5th Cir. 1997). After

“this Court has settled on the state law to be applied in a

diversity case, the precedent should be followed by other panels

without regard to any alleged existing confusion in state law,

absent a subsequent state court decision or statutory amendment

which makes this Court's decision clearly wrong.” Lee v. Frozen

Food Express, Inc., 592 F.2d 271, 272 (5th Cir. 1979). 

Af-Cap has not even attempted to point to a change in Texas

law since Af-Cap III that might call its holding into question. We

are therefore bound by Af-Cap III’s conclusion that nonmonetary

obligations are not garnishable under Texas law and find that

certification is inappropriate where we have authoritative

precedent on this precise issue. 

IT IS ORDERED that appellant’s motion to certify a question to

the Texas Supreme Court is DENIED and, because it raises no issues

independent of its motion to certify, its appeal is DISMISSED.2