Enforcement of Judgments Against Local Government A Practical Guide to Collecting from Local Sovereigns

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1 Enforcement of Judgments Against Local Government A Practical Guide to Collecting from Local Sovereigns P. Michael Jung, Strasburger & Price, LLP Dallas Bar Association Governmental Law Section November 11, 2014 Foreign lawyers and law students who study the American judicial system are surprised by many of its features, but perhaps most of all by the fact that private citizens are allowed to sue the government. Imagine their surprise, then, when they learn of American courts willingness to force the government to pay judgments, to the point of ordering them to raise taxes. I. When May the Judgment be Enforced? -- Suspension of Judgments Pending Appeal Before reaching the question of how a judgment against a local governmental entity may be enforced, there is the question of when it may be enforced. Since final trial court judgments are enforceable as soon as they are signed (with some temporary limitations on remedies, see, e.g., Tex. R. Civ. P. 627), the question is most relevant where an appeal is being filed. For ordinary mortals, a supersedeas bond is required, see generally Tex. R. App. P. 24. In the absence of a statutory exemption, this same rule applies to governmental appellants. See Wilson v. Thompson, 162 Tex. 390, 348 S.W.2d 17, (1961). Fortunately for such appellants, however, the Legislature has, over the years, created a fairly extensive list of exempted governmental entities and officers: The State of Texas (Tex. Civ. Prac. & Rem. Code 6.001(b)(1)) A state department ( 6.001(b)(2)) The head of a state department ( 6.001(b)(3)) Counties ( 6.001(b)(4)) The Federal Housing Administration ( 6.001(b)(5)) The Federal National Mortgage Association ( 6.001(b)(6)) The Government National Mortgage Association ( 6.001(b)(7)) The Veterans Administration ( 6.001(b)(8))

2 The Administrator of Veterans Affairs ( 6.001(b)(9)) Certain national mortgage savings and loan insurance corporations ( 6.001(b)(10)) The FDIC ( 6.001(b)(11)) Incorporated cities and towns ( 6.002) Water improvement districts ( 6.001(b)(1)) Water control & improvement districts ( 6.003(b)(1)) Irrigation districts ( 6.003(b)(1)) Conservation & reclamation districts ( 6.003(b)(1)) Water control and preservation districts ( 6.003(b)(1)) Levee improvement districts ( 6.003(b)(2)) Drainage districts ( 6.003(b)(3)) School districts ( 6.004) Agricultural development districts (Agriculture Code (c)) Multi-jurisdictional library districts (Local Government Code (c)) Municipal management districts (Local Government Code (c)) Defense base development authorities (Local Government Code 379B.005(c)) Rural rail transportation districts (Transportation Code (a)(3)) Intermunicipal commuter rail districts (Transportation Code (a)(3)) Commuter rail districts (Transportation Code (a)(3)) Metropolitan rapid transit authorities (Transportation Code (c)) Regional transportation authorities (Transportation Code (b)) Coordinated county transportation authorities (Transportation Code (b)) General-law water districts and water supply corporations (Water Code (f)) Although community college districts are not among the listed entities, there is good reason to believe that the exception for school districts applies to them, in light of Tex. Educ. Code ( the board of trustees of junior college districts shall be governed in the establishment, management and control of the junior college by the general law governing the establishment, management and control of independent school districts insofar as the general law is applicable ). See, e.g., Alamo Community College District v. Obayashi, 980 S.W.2d 745, (Tex. App. San Antonio 1998, writ denied) ( makes sue-and-be-sued authority of junior college districts coextensive with that of independent school districts). -2-

3 A similar argument can be made for joint municipal airport boards, which under Transportation Code (b) may exercise on behalf of its constituent agencies all the powers of each with respect to an airport, air navigation facility, or airport hazard area. Questions abound at the periphery of the statutes. What about housing authorities, which are established by state law, activated by municipalities, and exist to administer federal housing funds? Charter schools? Hospital districts? Many types of specialized governmental districts and corporations appear not to be covered; these include public facility corporations, transportation corporations, local government corporations, sports and community venue districts, and fire control, prevention, and emergency service districts. The list goes on. In light of the rule that a judgment against an official of a governmental entity in his or her official capacity constitutes a judgment against the entity itself, see Harris County v. Walsweer, 930 S.W.2d 659, 665, 668 (Tex. App. Houston [1 st Dist.] 1996, writ denied) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)), an official-capacity judgment against an official of an exempted entity is likewise exempt from bond requirements. In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Greanias v. City of Houston, 841 S.W.2d 411, 413 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding); Parker v. White, 815 S.W.2d 893, 894 (Tex. App. Tyler 1991, no writ). The same applies to a tort claim against a local government employee, defended by the governmental entity, Tex. Civ. Prac. & Rem. Code (b), and a tort or civil rights claim against a state employee, defended by the Attorney General, Tex. Civ. Prac. & Rem. Code Where an exemption applies, it extends until the appellate court issues its mandate. In re Long, 984 S.W.2d at

4 II. When It Becomes Enforceable, How May the Judgment Be Enforced? In general, a governmental entity is as much bound to pay a judgment against it as any other judgment creditor. Garrett v. City of Wichita Falls, 334 S.W.2d 624, 626 (Tex. Civ. App. Fort Worth 1960, no writ); City of San Antonio v. Routledge, 102 S.W. 756, 772 (Tex. Civ. App. Austin 1907, writ ref d). If the governmental entity has forgone appeal, or if it has not prevailed in its appeal, the judgment is subject to enforcement. A. Execution and Garnishment Are Not Available. Under Texas law, a judgment against a political subdivision may not be collected through the traditional methods of execution and garnishment. E.g., Delta County Levee Improvement District No. 2 v. Leonard, 516 S.W.2d 911, 912 (Tex. 1974), cert. denied, 423 U.S. 829 (1975); National Surety Corp. v. Friendswood Independent School District, 433 S.W.2d 690, 694 (Tex. 1968). See also Tex. Local Gov t Code ( Execution may not be issued on a judgment against a county ); Tex. Local Gov t Code (a) (housing authorities exempt from execution). In Leonard, the Supreme Court explained that it is the public policy of the State to exempt political subdivisions of the state performing governmental functions from execution or garnishment proceedings. 516 S.W.2d at 912. This rule applies even where the property to be seized is held by the governmental entity for private purposes, for revenue generation, or as surplus. Garrett, 334 S.W.2d at As authorized by Tex. Local Gov t Code (b) & , many municipal charters also contain prohibitions on seizure of the city s property or funds through execution or garnishment. See, e.g., Dallas, Tex., Charter art. XXIV, 3; Houston, Tex., Charter art. IX, 9; San Antonio, Tex., Charter

5 There is, however, a limited legitimate purpose for obtaining a writ of execution against a governmental entity. Under Tex. Civ. Prac. & Rem. Code (a), a judgment becomes dormant if a writ of execution is not issued with ten years of the judgment s rendition. In Leonard, the Supreme Court held that the issuance of a writ of execution and the return of the writ nulla bona serves to prevent dormancy of a judgment against a governmental entity. The writ of execution will be inoperative to satisfy the judgment, however, the execution [will be] sufficient to keep the judgment alive and prevent its dormancy. 516 S.W.2d at 913. (But query: how does this rule interact with the categorical prohibition under on issuance of execution against counties?) B. Mandamus Is the Traditional Remedy. In lieu of execution or garnishment, the judgment creditor may seek a writ of mandamus to compel the judgment debtor to comply with its ministerial duty to pay the judgment. Leonard, 516 S.W.2d at 912; National Surety, 433 S.W.2d at 694; Harris County v. Walsweer, 930 S.W.2d 659, 668 (Tex. App. Houston [1 st Dist.] 1996, writ denied); Whitmire v. Kriegel, 678 S.W.2d 567, 570 (Tex. App. Houston [14 th Dist.] 1984, writ ref d n.r.e.); Hawthorne v. La-Man Constructors, Inc., 672 S.W.2d 255, (Tex. App. Beaumont 1984, no writ); Angelina County v. Kent, 374 S.W.2d 313, 318 (Tex. Civ. App. Beaumont 1963, no writ); Garrett, 334 S.W.2d at 626. The writ may direct payment of the judgment out of the judgment debtor s surplus funds, if such funds are available. E.g., National Surety, 433 S.W.2d at 694; Garrett, 334 S.W.2d at 626. If there are not sufficient funds on hand, the judgment debtor can be directed to levy and collect sufficient taxes to pay the judgment. E.g., Leonard, 516 S.W.2d at 912; Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 486 (Tex. App. Houston [1 st Dist.] 2005, no pet.); -5-

6 Walsweer, 930 S.W.2d at 666; Garrett, 334 S.W.2d at 626; Routledge, 102 S.W. at ; see City of Austin v. Cahill, 99 Tex. 172, 88 S.W. 542, 551 (1905) (mandamus to levy tax prescribed by bonds). The writ may not, however, direct the governmental entity to levy more tax than the maximum allowed by law. Moreover, if the governmental entity is already taxing at the maximum rate, the writ may not order payment of the judgment in preference to operating expenses as budgeted in good faith by the governing body of the entity. City of Sherman v. Langham, 92 Tex. 13, 40 S.W. 140, , modified on other grounds, 42 S.W. 961 (1897); Clarendon v. Betts, 174 S.W. 958, 959 (Tex. Civ. App. Amarillo 1915, no writ). Instead, the writ may reach only surplus funds, or surplus taxing authority. A suit for the underlying debt may be combined with a suit for mandamus to pay the resultant judgment. Whitmire, 678 S.W.2d at 568; see City of Houston v. Emery, 76 Tex. 321, 13 S.W. 266, 266 (1890). In such a case, the grant of a writ of mandamus can be embedded in the judgment on the debt. Whitmire, 678 S.W.2d at 568. The proper respondent is the judgment debtor, not the officials who would cause the judgment debtor to pay the judgment. Emery, 13 S.W. at 266; Routledge, 102 S.W. at 765. The writ can, however, be enforced against the appropriate officials if they have notice of it. Id. As with other petitions for mandamus, the relator must show a legal duty to perform a nondiscretionary act, a demand to perform the act, and a refusal by the respondent. Walsweer, 930 S.W.2d at ; Hawthorne, 672 S.W.2d at 258. This should not, however, be an onerous task in light of the rule that governmental entities are bound to pay their judgments. And the constitutional right of appeal to district court from the commissioners court s refusal to pay a -6-

7 judgment does not prevent the issuance of mandamus to require a county to pay the judgment. Paschall v. Renshaw, 142 S.W.2d 717, 723 (Tex. Civ. App. Fort Worth 1940, no writ). The writ must require compliance within a reasonable time. See Hawthorne, 672 S.W.2d at 259. It need not be unduly specific; a requirement that the governmental entity raise revenue sufficient to pay the judgment gives adequate notice of the required conduct. Id. Noncompliance is punishable as contempt. See id. By virtue of Fed. R. Civ. P. 69, Texas law governs issuance of a writ of mandamus to compel a Texas governmental entity to pay a federal judgment. See Huddleston v. Dwyer, 322 U.S. 232, 236 (1944). C. A Receivership May Also Be Available, Although Its Scope Would Be Limited. One case contains dictum that [u]pon proper showing, it also would be proper to appoint a receiver as a means of enforcement of a judgment against a governmental entity. Garrett, 334 S.W.2d at 626. Presumably, this refers to a receivership of surplus governmental funds, inasmuch as a receiver cannot raise taxes. Moreover, to place non-surplus property in the hands of a receiver would circumvent the rule against execution and garnishment. D. A Turnover Order Might Be Available, but Would Add Little or Nothing to the Available Mandamus Remedy. The turnover order statute, Tex. Civ. Prac. & Rem. Code , is written in broad terms and says nothing to restrict its availability against governmental entities. But the statute is limited to turnover of property that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities (a)(1). Hence a turnover order could reach only surplus funds -7-

8 that could be made the subject of a mandamus action. An order requiring the turnover of such funds would be almost indistinguishable from a writ of mandamus. E. A Judgment Lien Does Not Attach to Government Property. Tex. Prop. Code allows creation of a judgment lien on real property other than real property exempt from seizure or forced sale under Chapter 41, the Texas Constitution, or any other law. Since, as we have seen, governmental property is exempt from execution, a judgment lien does not attach to it. F. Post-Judgment Discovery Would Appear to Be Available. Post-judgment discovery is governed by Tex. R. Civ. P. 621a. As with the turnover statute, the rule is written in broad terms that do not distinguish between governmental judgment debtors and others. Discovery is available for the purpose of obtaining information to aid in the enforcement of [the] judgment, and so it is presumably available in aid of a mandamus petition. Topics might include the identification and quantification of surplus funds, current and projected tax rates, and current and projected budgets. G. Bankruptcy Is Not Available as a Collection Mechanism. Fortunately for local governmental judgment debtors, involuntary bankruptcy is not an available remedy under Chapter 9 of the Bankruptcy Code. 11 U.S.C. 303(a). -8-