§ 34.021.Recovery of Property Before Sale

The remedy where the judgment falls away before the property is gone.

A person is entitled to recover his property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside and the property has not been sold at execution.

The entitlement is to the property itself, not to its value. Where the thing still exists in the officer’s or creditor’s hands, the owner gets it back.

Two conditions apply, and both are objective. The judgment must have been reversed or set aside, and the property must not have been sold at execution.

Nothing turns on fault. The creditor may have acted properly at every step; a judgment later reversed still leaves the seizure without foundation.

The sale is the dividing line, and the reason lies elsewhere in the chapter. A purchaser at an execution sale takes as an innocent purchaser without notice, and unwinding the sale would defeat that protection and make execution sales unsaleable.

So before sale the owner recovers the property; after sale the owner recovers money, under the following section.

The section speaks of "a person", not of the judgment debtor, which matters where the property seized belonged to someone else.

The practical lesson for a debtor appealing a judgment is about timing. An appeal that succeeds before the sale returns the property; one that succeeds after it returns a market value figure fixed at the sale date.