Schmerbeck v. River Oaks Bank

Court of Appeals of Texas

Schmerbeck v. River Oaks Bank

786 S.W.2d 521, 1990 Tex. App. LEXIS 526, 1990 WL 26919

Court of Appeals of Texas·Decided March 13, 1990·No. 9677·Published·Cited by 4 cases

Opinions

CORNELIUS, Chief Justice.

River Oaks Bank sued Victor Schmer-beck to recover on a promissory note. Schmerbeck failed to answer the suit within the required time, and a default judgment was rendered against him for a total of $39,713.87 principal and interest, together with $11,961.62 attorney’s fees. On June 24, 1988, the court issued a “turnover order” pursuant to Tex.Civ.Prac. & Rem. Code Ann. § 31.002 (Vernon 1986 & Supp. 1990), which ordered Schmerbeck to deliver his paycheck “upon receipt each payday” to a named receiver who would disburse the proceeds as follows: $500.00 per month for the first two months and $675.00 per month thereafter to the bank; $250.00 per month for the first two months and $75.00 per month thereafter to the receiver, with the remainder going to Schmerbeck for living expenses.

Schmerbeck contends on appeal that the turnover order is improper and invalid because it affects current wages which are exempt from garnishment and execution by virtue of Tex.Const. art. XVI, § 28,¹ Tex.[522]*522Civ.Prac. & Rem. Code Ann. § 63.004 (Vernon 1986),² and Tex.Prop.Code Ann. § 42.002(8) (Vernon 1984).³

Because the turnover order is directed to Schmerbeck rather than to a third party, it is not a “garnishment” within the meaning of Article XVI, Section 28 of the Constitution or Section 63.004 of the Civil Practices and Remedies Code. Raborn v. Davis, 33 Tex.Sup.Ct.J. 249 (Tex. Feb. 21, 1990).

The order does not violate Tex.Prop.Code Ann. § 42.002(8). A paycheck in the hands of the judgment debtor does not constitute current wages, and an order directing a judgment debtor to turn over his future paychecks, as and when received, is not prohibited by either the Constitution or the statutes. Raborn v. Davis, supra.

The judgment of the trial court is affirmed.

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CORNELIUS, Chief Justice.

River Oaks Bank sued Victor Schmer-beck to recover on a promissory note. Schmerbeck failed to answer the suit within the required time, and a default judgment was rendered against him for a total of $39,713.87 principal and interest, together with $11,961.62 attorney’s fees. On June 24, 1988, the court issued a “turnover order” pursuant to Tex.Civ.Prac. & Rem. Code Ann. § 31.002 (Vernon 1986 & Supp. 1990), which ordered Schmerbeck to deliver his paycheck “upon receipt each payday” to a named receiver who would disburse the proceeds as follows: $500.00 per month for the first two months and $675.00 per month thereafter to the bank; $250.00 per month for the first two months and $75.00 per month thereafter to the receiver, with the remainder going to Schmerbeck for living expenses.

Schmerbeck contends on appeal that the turnover order is improper and invalid because it affects current wages which are exempt from garnishment and execution by virtue of Tex.Const. art. XVI, § 28,¹ Tex.[522]*522Civ.Prac. & Rem. Code Ann. § 63.004 (Vernon 1986),² and Tex.Prop.Code Ann. § 42.002(8) (Vernon 1984).³

Because the turnover order is directed to Schmerbeck rather than to a third party, it is not a “garnishment” within the meaning of Article XVI, Section 28 of the Constitution or Section 63.004 of the Civil Practices and Remedies Code. Raborn v. Davis, 33 Tex.Sup.Ct.J. 249 (Tex. Feb. 21, 1990).

The order does not violate Tex.Prop.Code Ann. § 42.002(8). A paycheck in the hands of the judgment debtor does not constitute current wages, and an order directing a judgment debtor to turn over his future paychecks, as and when received, is not prohibited by either the Constitution or the statutes. Raborn v. Davis, supra.

The judgment of the trial court is affirmed.

Schmerbeck v. River Oaks Bank, 786 S.W.2d 521, 1990 Tex. App. LEXIS 526, 1990 WL 26919 (Tex. Ct. App. 1990).

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