§ 43.005.Officer Treated as Surety

A borrowed remedy, and its exclusions define who deserves it.

An officer has the rights of a surety provided by Section 43.004 if the officer is compelled to pay a judgment in whole or part because of the officer’s default.

The situation arises directly from the execution chapter. An officer who fails to levy, sells improperly, or negligently loses seized property can be made to pay a judgment creditor what the creditor lost.

Having paid, the officer stands where a surety stands — having satisfied a debt that at bottom belongs to the judgment debtor.

The subrogation rights follow. The judgment is not discharged, and the officer may execute against the debtor’s property for what was paid, plus interest and costs.

That parallels the execution chapter’s own subrogation provision, which gives an officer — or a county that paid on the officer’s behalf — a right of subrogation against the debtor.

Two defaults are excluded, and both are different in kind from a mistake.

The officer does not pay over money collected. Here the officer holds the creditor’s money and keeps it; paying it over later is performing the duty, not answering for someone else’s debt.

The officer wastes property levied on or in the officer’s possession. Waste is the officer’s own destruction of value, and the loss belongs to the officer rather than to the debtor.

The line the exclusions draw is between failing and misappropriating. An officer who did the job badly gets a surety’s remedy; one who took the money or destroyed the property does not.