§ 34.068.Rules Governing Actions Under This Chapter

The procedural rules for every damages claim in this subchapter, and the limitations period is the part to note.

The section applies to a claim under Section 7.001, 34.061, 34.063, 34.065, 34.066, or 34.067, or under Section 86.023 of the Local Government Code — the constable provision.

Suit shall be brought in the form of a lawsuit filed against the officer in the county in which the officer holds office.

Two requirements sit there. The claim must be a lawsuit, not a motion in the underlying case; and venue is the officer’s county, which is not necessarily where the creditor is or where the judgment was rendered.

Requiring a separate suit gives the officer the ordinary protections of a defendant — service, an answer, discovery, a trial — rather than being dealt with by motion in a case they are not a party to.

All suits must be filed not later than the first anniversary of the date on which the injury accrues.

One year is short, and it is the trap in this subchapter. Most tort claims in Texas have two years; a claim against an executing officer has one, running from accrual of the injury rather than from discovery of it.

The short period reflects what these claims are about. They turn on what an officer did or failed to do on a particular day, proved by records and recollection that do not improve with time.

An officer or a surety may defend by stating and proving any defenses provided by law, including any defense that would mitigate damages.

Naming mitigation expressly is useful, since much of what reduces these claims is not a defence to liability at all — property that was encumbered, a debtor with other creditors, a sale that would have realised little.