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Rule 748. Judgment and Writ (1988)

TEXT

If the judgment or verdict be in favor of the plaintiff, the justice shall give judgment for plaintiff for possession of the premises, costs, and damages; and he shall award his writ of possession. 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 possession shall issue until the expiration of five days from the time the judgment is signed.

Amended by order of July 15, 1987, eff. Jan. 1, 1988.

ADVISORY OPINIONS

(No. 70) Question: In a forcible entry and de­tainer suit, after an adverse judgment against a defendant in the Justice Court and the notice of appeal given within two days, should a writ of restitution issue before the five days given to make an ap­peal bond or should the writ await the expiration of the five days or until the bond has been approved and filed?

Answer: Rule 748 expressly provides that "No writ of restitution shall issue un­til the expiration of two days from the ren­dition of the judgment," and the clear im­plication is that the writ can issue at any time after the expiration of said two-day period. There appears to be nothing in the rules or statutes that would require a withholding of the issuance of the writ of restitution until after the five-day period.

Therefore, it is the opinion of the sub­committee that the writ of restitution could properly be issued at any time after the expiration of two days from the rendi­tion of the judgment.

5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).

(No. 105) Question: Rule 627 under Executions provides that execution shall issue after the expiration of twenty days from final judgment. Rule 755 under Forcible Entry and Detainer on appeal to county courts provides that writ of restitution or execu­tion or both shall be issued by the clerk and executed "as in other cases." Does this rule mean that when the plaintiff obtains a final judgment in a forcible entry and detainer suit in the county court, he must wait twenty days before obtaining and executing a writ of restitu­tion?

Answer: It is the opinion of the sub­committee that the question should be answered in the negative. That portion of Rule 755 which states that writs of restitution or execution shall be issued by the clerk and executed by the sheriff or constable "as in other cases" refers to the method of issuing and executing the writ rather than to the time of the issuance of the writ. Rule 755 is an exact copy of the former Statute (Article 3993), and we find no decisions holding under the Statute that a writ of restitution could not be issued and executed until the time had arrived for the issuance of a writ of execution.

Rule 627 providing that the clerk shall issue execution after the expiration of 20 days from the rendition of final judg­ment fixes the time for the issuance of executions, but it does not relate to writs of restitution nor does it fix the time with­in which writs of restitution can be issued or executed.

Rule 748 expressly provides that "No writ of restitution shall issue until the expiration of two days from the rendi­tion of judgment;" and it is the opinion of the subcommittee that under this Rule writs of restitution can issue at any time after the expiration of two days from the rendition of judgment, and that such writs can then be executed immediately by the officer. Although Rule 748 might be construed as being applicable only to the procedure in the Justice Court, nevertheless the portion of said rule just quoted is not necessarily so limited in its application. Inasmuch as this is the only express declaration in the Rules as to how soon a writ of restitution can be issued after final judgment, we feel that it should be given effect in both the Justice and County Courts. This construction is also supported by the general policy of the Rules to bring about a speedy disposition of appeals in forcible entry and detainer suits.

6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 37 (1945).