§ 34.065.Failure to Levy or Sell

The most demanding liability provision in the chapter, and the reason lies in what an officer is not required to do.

The officer and sureties are liable only for actual damages where the officer fails or refuses to levy on or sell property subject to execution and the levy or sale could have taken place.

Seven elements fall on the judgment creditor: a valid judgment; that the writ was issued to the creditor; that it was delivered to the officer; that the judgment was unpaid and unsatisfied; that the property was subject to execution; that the officer failed or refused to levy; and the amount of actual damages.

Subsection (c) defines "subject to execution" with four requirements: the debtor owned the property, it was accessible to the officer under the law, it was situated in the officer’s county, and it was not exempt.

Subsection (d) adds the condition that decides most of these cases. Before finding a failure to levy, the court must find that the judgment creditor specifically informed the officer that the property was owned by the judgment debtor and was subject to execution, and directed the officer to levy on it.

That is the counterpart of the duties provision. An officer has no duty to search for property, to determine ownership, or to decide whether property is exempt — so the creditor must supply all three and then direct the levy.

A creditor who handed over a writ and waited has no claim, however much property the debtor had.

"Actual damages" is defined, and narrowly: the amount of money the property would have sold for at a constable or sheriff’s auction minus any costs of sale, commissions, and additional expenses of execution.

So the measure is the forced-sale price, not market value — which is what the creditor would have received, and considerably less than the property is worth.