Civil Processes Notes PDF

**Civil Processes Notes ** **Civil v. Criminal Law** - **Criminal Law** - Criminal law regulates the conduct of individuals through imprisonment - In criminal cases, the state brings an action against an individual to punish him for breaking one of their laws -...

**Civil Processes Notes ** **Civil v. Criminal Law** - **Criminal Law** - Criminal law regulates the conduct of individuals through imprisonment - In criminal cases, the state brings an action against an individual to punish him for breaking one of their laws - The peace officer may assume direct responsibility of the investigation and filing criminal charges against the defendant - Jury or judge decides guilt based **beyond a reasonable doubt** - **Civil Law** - A person brings a lawsuit seeking compensation for an injury; *tort* - A judgment is rendered in favor of the plaintiff or the defendant based **upon the preponderance of evidence** before a judge or jury  **Sheriff & Constables** - The **[Constable]** office is guaranteed through the Texas State Constitution - The constable is elected every four years  - Must take an oath and have a surety bond of \$500-\$1,500 - The **[Sheriff]** Office is also guaranteed in the Texas State Constitution - Highest law enforcement peace officer in the county - Sheriff runs for election every 4 years  - Served by deputy sheriffs who do not necessarily have to provide a bond - These two offices serve the majority of civil process paperwork and notices in the county  **Career Spotlight: Constable** - The office of constable is provided for in the Texas Constitution  - Each county can have a constable and up to 8 depending on precincts  - They are elected in 4-year cycles - Constables are peace officers who serve civil processes as well as act as bailiff for court, serving any court paperwork - **[Requirements]**: - Over 18 years of age - No felony or A/B misdemeanor convictions  - Associate degree minimum - Peace Officer License - The average salary is \$30,000/year in Texas **Civil Process** - Civil lawsuit begins with **service of citation** (*court's notice they're sued*)  - aka *summons/notice/citation * - NOT served on SUNDAY's or LEGAL HOLIDAYS; must be returned within 90 days - Commands defendant to come to court on a certain date and time - Sheriff/constable must serve in the county of residence for person - [4 methods of serving the citation:] - *Face to face* - *Certified mail from clerk of the court * - *Publication* - *Alternate service* - a method of delivering to an uncooperative defendant   **Civil Case** - **Plaintiff** -  person who initiates the suit by filing a petition - **Defendant**  - person being sued in court; must send an answer - **Answer** - similar to a plea in a criminal case - Must be received by the court by the Monday after 20 days  - **Default** **Judgment** - If the defendant fails to answer the court, the judge may award a default judgment where the plaintiff wins the suit by default and gets damages - Both parties have **20 days** to appeal a decision in civil court **Writ of Attachment ** - If the defendant fails to pay after the judge rules in favor of the plaintiff, the next step is for the plaintiff to seek a writ of attachment from the court  - **Writ of attachment** - Court order to seize property to enforce a court decision - Can also be used for people - Examples of property that can be seized: - Bank accounts - Physical property - Jewelry - Vehicles **Evictions ** - **Eviction** - the complete process used by a landlord to regain possession of rented property -  A landlord can terminate a tenancy early if the tenant does not pay rent or violates the lease or rental agreement - [Time requirements]: - For nonpayment of rent - **72 hours (3 days) written notice ** - All other reasons (*foreclosure, etc.*) - **30 days ** - If the person fails to leave after being told to, the landlord will need to proceed to court to force the persons out **Forcible Entry & Detainer ** - **Forcible Entry and Detainer** - Proceeding brought in judgment in the justice of the peace court by a landlord to regain possession of rented/leased premises from a tenant and/or rent money - The landlord must prove they got the proper amount of time for a notice and the person has not vacated  - The defendant has the right to demand a trial within 6 days  - Appeals after the judgment only last 5 days  - The officer may use reasonable force to remove the persons from the property - Property left behind may be stored or placed curbside (weather permitting) **Writ of Possession ** - **Writ of Possession** - a writ employed to enforce a judgment to recover possession of real or personal property  - To obtain possession of tangible property that is security for a debt in default  - To reclaim chattels that have been loaned or leased to another and not returned  - To obtain property whose ownership is in dispute  - The property seized may be stored in a warehouse  - May use reasonable force to execute the writ - The persons must leave and can be physically removed if they refuse **Garnishment ** - **Garnishment**  - A statutory proceeding whereby the property, money, or credits of a debtor in the possession of another are applied to the payment of a debt - **Writ of Garnishment** - Available after a writ of attachment AND  - if the person does not have property in Texas to apply to the writ - Personal wages may **[not]** be garnished in Texas - Student loans, child support, taxes are exceptions - If you are self-employed, your income from the customers may be garnished **Restraining Order & Injunctions ** - **Restraining orders** - court orders prohibiting individuals or groups of people from some action - Usually issued in connection with a legal case where a person is endangered - The plaintiff files a sworn petition requesting a restraining order  - Can be served any time day or night, Sundays or holidays  - If a person violates a restraining order, they cannot be arrested  - The court will punish them (fines, jail, etc.) **Writ of Execution ** - **Writ of Execution** - A court order directing a sheriff or other officer to enforce a judgment, usually by seizing and selling the judgment debtor's property - Endorsed after a final judgment in court  - Writ may not issue until 30 days from the time a final judgment is signed - Only used if the defendant fails to pay the judgment - If the property is money, the account may be frozen or the funds may be moved into a holding account - If property or other assets are to be transferred, the items can be transferred in-kind or can be sold in a sheriff\'s sale - Funds from the sale can be given to the plaintiff **Temporary Ex Parte Order** - **Temporary** **protective** **order** issued by the court - It is issued before the formal hearing for a final protective **order** - The accused is not present in court - It is issued without notice to the respondent in an emergency situation where the court finds a clear and present danger of family violence - Valid for 20 days; can be extended in 20 days increments  - The order can bar a person from their residence as long as the person signs a sworn statement detailing the family violence event **Protective Order ** - With regards to family violence, the following people may apply for a protective order: - Adult member of household - Adult member of family (including marriage) - Adult member of dating relationship - Any adult to protect a child from family violence - Prosecutor - CPS - **Texas Penal Code 25.07 Violation of Certain Court Orders** - A person shall be arrested for violating a court order by committing family violence or communicating with the person protected by the court order - Only law that commands a police and has to arrest for a violation  **Subpoena ** - **Subpoena** - Commands a person to show up at a certain time and place (court) by the clerk or the justice of the peace - Used to get witnesses to show up to testify at a trial  - Can be served by any person over the age of 18 years - Must be signed by the person to show receipt  - Must be done in person, phone/email does not work - **Subpoena duces tecum**  - directive to a person commanding them to bring documents or evidence to court  **Wichita County Fees** - Executions \$200 - Protective Order \$200 - Temporary Restraining Order \$200 - Subpoena \$135 - Summons \$125 - Writ of Attachment \$200 - Writ of Garnishment \$200 - Writ of Sequestration \$200 - Writ of Possession \$200