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Click here for the full text of this decision FACTS:KingVision Pay-Per-View Ltd. sued Eduardo Ortega, individually and doing business as El Burrito Restaurant, alleging that he intercepted its broadcast of a championship boxing match and aired it. When Ortega failed to answer the suit, KingVision took a default judgment of $212,500, which included $42,500 in attorneys’ fees. KingVision then obtained a 90-day writ of execution, which it delivered to Constable Mike Dupree’s office on May 14, 2004. Some 122 days later, the writ was returned “nulla bona.” A deputy constable asserted that he was unable to make contact with Ortega and that Ortega had no property located within Dallas County Texas subject to execution. KingVision filed a motion to recover the full amount of the judgment under Texas Civil Practice & Remedies Code ��34.064 and 34.065, alleging that Dupree failed and refused to levy on the writ when property was available and neglected or refused to return the writ as required by law. Attaching documentary evidence, KingVision asserted that Ortega owned three parcels of real property and four vehicles during the time Dupree had the writ. It also presented a timetable of actions by Dupree’s office that it contended showed neglect of the writ. Dupree filed an answer generally denying the allegations and raising affirmative defenses. Although served with the motion, American States Insurance Co., which KingVision alleged was surety for Dupree and thus liable, did not respond or appear at the hearing on the motion. At the hearing, the trial judge determined that KingVision made a prima facie case and then heard evidence on Dupree’s affirmative defenses of no property and due diligence. Deputy Constable Ronald Bostic testified that he received the writ of execution on May 14, 2004, and made his first, and last, attempt to execute on the writ 25 days later on June 8, 2004. Bostic said that he went to El Burrito Restaurant to contact Ortega but was told that Ortega was out of the country could not be contacted and that the restaurant was under new ownership. Bostic said that someone at El Burrito showed him a certificate of authenticity and a tax statement indicating new ownership, so he did not seize any of the restaurant property. He also went to Ortega’s duplex and condominium, but Ortega was not at those locations. Bostic said he was aware of real and personal property owned by Ortega at the time he held the writ. But Bostic testified that he did not seize the vehicles, because he was not able to locate them at any of the locations he visited. Moreover, Bostic did not sell or attempt to sell any of the nonexempt real property owned by Ortega because his department as a matter of practice did not levy on and sell real property but would refer the creditor’s attorney to the sheriff’s department. Consequently, Bostic determined that “there were no assets to seize or collect.” On cross-examination, KingVision produced evidence that another deputy constable in Dupree’s precinct located Ortega six weeks after KingVision’s writ expired to serve him with a forcible-detainer complaint. The deputy served Ortega with the suit at a second restaurant. Ultimately, the trial judge found all issues in KingVisions’ favor. In written findings, the trial judge found that 1. Ortega had property subject to execution in Dupree’s jurisdiction when Dupree had the writ; 2. Dupree was aware of Ortega’s nonexempt assets and could have seized them but did not; 3. Dupree failed and refused to seize and levy on Ortega’s non-exempt property; 4. Dupree failed to establish that any of Ortega’s property was exempt from execution; 5. Dupree failed to exercise diligence; and 6. KingVision was harmed by Dupree’s failure to execute. The trial judge also concluded, inter alia, that constables have a duty to levy upon real property. The trial judge ordered that KingVision recover from Dupree and American States, jointly and severally, the full amount of the judgment, interest, court costs and attorneys’ fees. Dupree and American States filed separate appeals complaining of the trial court’s order. HOLDING:Reversed and rendered in part, affirmed in part. Texas Civil Practice & Remedies Code �34.065, the court stated, provides that if an “officer” fails or refuses to levy on or sell property subject to execution and the levy or sale could have taken place, the officer and his sureties are liable to the party entitled to receive the money collected on execution for the full amount of the debt, plus interest and costs. The total amount is recoverable on motion of the party filed with the court that issued the writ, following five days’ notice to the officer and his sureties. To establish liability under �34.065, the court stated that a plaintiff must show: a valid judgment issued and delivered to the officer, that the debtor had some property subject to execution; that the officer failed to seize nonexempt property; and that the judgment remains unpaid. After the plaintiff has made out a prima facie case, the burden shifts to the defendant to prove one of the defenses or mitigation. First, Dupree challenged the legal and factual sufficiency of the trial judge’s findings on his affirmative defenses that, with respect to personal property only, he was diligent and acted in good faith and that there was no nonexempt personal property that could have been recovered. But Dupree conceded in his brief that there was real property belonging to Ortega that could have been levied upon but was not. In light of this, the court found that whether Dupree met his burden of proof with respect to Ortega’s personal property was not dispositive. To establish Dupree’s liability, KingVision was only required to show Ortega owned nonexempt assets subject to execution. Thus, the court found that Dupree failed to identify error in trial judge’s order even if he could show as a matter of law that there was no nonexempt personal property subject to execution, or that he was diligent or acted in good faith as to the personal property. Second, Dupree argued that the trial judge erred in awarding damages in the full amount of the judgment. Specifically, he contended that if he was liable at all, it was only to the extent of the value of the nonexempt assets. The court treated this point of error as a factual and legal sufficiency challenge. To establish a mitigation defense, the court noted that Dupree “must plead and prove that the market value of the defendant’s non-exempt property is less than the amount of the underlying judgment.” If Dupree satisfied this burden, then he would be liable only to the extent of the value of the nonexempt property. The court, however, found that Dupree offered no evidence on this point at trial. Thus, Dupree’s evidentiary sufficiency challenge failed. Third, the court overturned an award of attorneys’ fees to KingVision on grounds that the award lacked a basis in statute and the trial judge lacked inherent authority in this instance to award them. Finally, the court examined the trial court’s finding of liability against American States, the alleged surety. American States argued that KingVision could not recover against it, because there was no evidence that it was Dupree’s surety. In response, KingVision argued that there is evidence that American Insurance was Dupree’s surety, because the trial judge took judicial notice of the constable’s bond. The court assumed without deciding that the trial court took judicial notice of a bond, but then noted that nothing in the record established the particulars of the bond. In sum, the court found no evidence supported a finding that American States was the surety on Dupree’s bond. OPINION:Francis, J.; Whittington, Francis and Lang, J.J.

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