§ 43.004.Subrogation Rights of Surety

The subrogation provision, and its first subsection is the mechanism everything else depends on.

A judgment is not discharged by a surety’s payment of the judgment in whole or part where the payment is compelled, or if made voluntarily, is applied to the judgment because of the suretyship relationship.

That is a departure from the ordinary rule, and a necessary one. Payment normally satisfies a judgment; if it did so here, the surety would be left with an unsecured claim against the principal and nothing else.

Keeping the judgment alive preserves everything attached to it — the lien, the priority, the right to execution, and the years the creditor spent obtaining it.

Voluntary payment is covered as well as compelled payment, provided it was applied to the judgment because of the suretyship. A surety need not wait to be levied on before paying.

The surety is subrogated to all of the judgment creditor’s rights under the judgment.

Execution then runs against the principal’s property for the amount of the surety’s payment, plus interest and costs.

Where there is more than one surety, the paying surety may execute against both the principal’s property and the cosureties’ property — but only for the amount by which the payment exceeds that surety’s proportionate share, plus interest and costs.

That is contribution among cosureties, expressed through execution. A surety who paid the whole recovers the excess over their own share from the others, without a separate lawsuit.

The procedure is simple: the subrogated surety applies to the clerk or court for execution, and it is levied, collected, and returned as in other cases.