§ 34.002.Effect of Plaintiff's Death

Three situations, distinguished by whether the estate is administered and when the death occurred.

Where a plaintiff dies after judgment and an estate is administered, the writ must be issued in the name of the plaintiff’s legal representative and in the name of any other plaintiff. An affidavit of death and a certificate of appointment of the legal representative under the hand and seal of the clerk of the appointing court must be filed with the issuing clerk.

The certificate is what proves the representative’s authority, and requiring it under seal keeps the issuing clerk from having to investigate a probate in another court.

Where the estate is not administered, the writ must be issued in the name of all plaintiffs shown in the judgment, with an affidavit showing that administration is unnecessary filed with the court that rendered judgment.

Money collected then goes into the registry of the court, and the court shall order it partitioned and paid to the parties entitled to it.

That is the sensible arrangement where nobody has authority to receive the money. The court holds it and distributes, rather than paying a share to a person whose entitlement has not been established.

Subsection (c) covers death after the writ has issued: it does not abate the execution, and the writ shall be levied and returned as if the plaintiff were living.

The dividing line is the writ. Before it issues, the death changes whose name goes on it; after it issues, the process runs its course untouched.

That protects the officer as much as the estate, since an officer holding a writ need not stop and investigate whether the plaintiff is still alive.