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Rule 755. Writ of Possession (1988)
The writ of possession, or execution, or both, shall be issued by the clerk of the county court according to the judgment rendered, and the same shall be executed by the sheriff or constable, as in other cases; and such writ of possession shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party.
Amended by order of July 15, 1987, eff. Jan. 1, 1988.
|Prior Amendments||Future Amendments|
|Oct. 29, 1940, eff. Sept. 1, 1941||Repealed by order of April 15, 2013, eff. Aug. 31, 2013.|
(No. 105) Question: Rule 627 under Executions provides that execution shall issue after the expiration of twenty days from final judgment. Rule 755 under Forcible Entry and Detainer on appeal to county courts provides that writ of restitution or execution or both shall be issued by the clerk and executed "as in other cases." Does this rule mean that when the plaintiff obtains a final judgment in a forcible entry and detainer suit in the county court, he must wait twenty days before obtaining and executing a writ of restitution?
Answer: It is the opinion of the subcommittee that the question should be answered in the negative. That portion of Rule 755 which states that writs of restitution or execution shall be issued by the clerk and executed by the sheriff or constable "as in other cases" refers to the method of issuing and executing the writ rather than to the time of the issuance of the writ. Rule 755 is an exact copy of the former Statute (Article 3993), and we find no decisions holding under the Statute that a writ of restitution could not be issued and executed until the time had arrived for the issuance of a writ of execution.
Rule 627 providing that the clerk shall issue execution after the expiration of 20 days from the rendition of final judgment fixes the time for the issuance of executions, but it does not relate to writs of restitution nor does it fix the time within which writs of restitution can be issued or executed.
Rule 748 expressly provides that "No writ of restitution shall issue until the expiration of two days from the rendition of judgment;" and it is the opinion of the subcommittee that under this Rule writs of restitution can issue at any time after the expiration of two days from the rendition of judgment, and that such writs can then be executed immediately by the officer. Although Rule 748 might be construed as being applicable only to the procedure in the Justice Court, nevertheless the portion of said rule just quoted is not necessarily so limited in its application. Inasmuch as this is the only express declaration in the Rules as to how soon a writ of restitution can be issued after final judgment, we feel that it should be given effect in both the Justice and County Courts. This construction is also supported by the general policy of the Rules to bring about a speedy disposition of appeals in forcible entry and detainer suits.6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 37 (1945).