explaining that the turnover statute does not apply to nonjudgment debtors, and if the asset at issue is cash, then the trial court can only order the debtor to turn over amounts that are within her possession and control, and not cash that has been spent
How later courts described this case
- explaining that the turnover statute does not apply to nonjudgment debtors, and if the asset at issue is cash, then the trial court can only order the debtor to turn over amounts that are within her possession and control, and not cash that has been spent
- explaining that “[i]n family law cases, legal and factual sufficiency challenges do not constitute independent grounds for asserting error[] but are relevant factors in determining whether the trial court abused its discretion.”
- concluding the turnover statute cannot be applied to non-judgment debtors because it is a purely procedural device, and reversing the trial court for entering a turnover order against someone in both her individual and legal representative capacities when she was a judgment debtor only in her representative capacity
- holding the court of appeals should have reviewed trial court’s judgment ordering turnover under abuse of discretion standard and stating whether there was no evidence to support the turnover award would be relevant to determining whether trial court abused its discretionary authority in issuing the order
Written by the judges who cited it.
The opinion
MAUZY, Justice,
dissenting.
The real problem underlying this cause is that Beaumont Bank chose an improper vehicle to resolve its dispute with Patricia Buller. The Texas turnover statute, Tex. Civ.Prac. &- Rem.Code Ann. sec. 31.002 (Vernon 1986 & Supp.1991), is simply an unsuitable mechanism for resolving this dispute. The majority opinion, however, effectively condones the Bank’s misplaced reliance on the statute. I therefore dissent.
The inadequacy of the turnover statute in this context is patent. The majority acknowledges that the turnover statute cannot be applied to Buller in her individual capacity. All Buller needed to establish, then, was that she had spent the estate funds. Her expenditures did not need to be legitimate; any expenditure would serve, no matter how frivolous, as long as Buller documented her spending to this court’s satisfaction. 1
Even as to any estate assets which Bul-ler has not spent, the turnover order will ultimately prove unenforceable. The Texas Bill of Rights prohibits the trial court from enforcing the turnover order by imprisonment. Article I, section 18 of the Texas Constitution unequivocally provides that “[n]o person shall ever be imprisoned for debt.” This prohibition has appeared in every version of our constitution. 2 Further, the debates of the first state constitutional convention show that the framers intended the prohibition to be even stronger than that provided in the 1836 Republic of Texas Constitution. See Repub.Tex. Const. Declaration of Rights § 12 (1836) (“No person shall be imprisoned for debt in consequence of inability to pay.”); Debates of the Texas Convention 302-07 (1846). In the present case, enforcement of the turnover order by imprisonment would fall squarely within the constitutional prohibition. See Ex parte Britton, 127 Tex. 85 , 92 S.W.2d 224, 227 (1936) (“It is not the policy of the law to enforce the collection of mere civil debts by contempt proceedings.”)
Fortunately, the Texas legislature has provided a suitable remedy for the problem at hand. When the representative of an estate fails to make a court-ordered payment, the claimant’s remedy properly lies under section 328 of the Texas Probate Code. See, e.g., Fillion v. Osborne, 585 S.W.2d 842, 844 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ). Section 328(b) enables a court to “cite the representative and the sureties on his bond to show cause why they should not be held liable” on the outstanding judgment. Absent a showing of good cause,
the court shall render judgment against the representative and sureties so cited, *230 m favor of the holder of such claim, for the amount theretofore ordered to be paid or established by suit, and remaining unpaid, together with interest and costs, and also for damages upon the amount neglected to be paid, at the rate of five per cent per month for each month, or fraction thereof, that the payment was neglected to be paid after demand made therefor, which damages may be collected in any court of competent jurisdiction.
Tex.Prob.Code Ann. sec. 328(b) (Vernon 1971 & Supp.1991). See 18 M. Woodward and E. Smith, Probate and Decedents’ Estates § 950 (Texas Practice 1971).
With its enactment of section 328(b), the legislature has established an appropriate procedure for determining the substantive rights of debtors and creditors in a situation such as this. The advantages of section 328(b) are manifest. By requiring notice and a hearing, section 328(b) ensures that the representative of an estate will have a fair opportunity to assert substantive rights. And by providing for personal liability, section 328(b) also ensures that a judgment creditor may have redress for misuse of estate funds. The turnover procedure, in contrast, is “purely procedural in nature,’’ and is not amenable to the determination of substantive rights. Steenland v. Texas Commerce Bank, 648 S.W.2d 387, 390 (Tex.Civ.App. — Tyler 1983, writ ref’d n.r.e.).
A court should not permit a party to bypass an established statutory procedure by way of the turnover statute. See Cravens, Dargan & Co. v. Travers Co., 770 S.W.2d 573, 577 (Tex.Civ.App. — Houston [1st Dist.] 1989, writ denied). In most instances, as in this case, the turnover statute will prove wholly inappropriate for resolving substantive disputes.
. As the court of appeals noted, the Bank failed to rebut Buller's testimony that she no longer holds estate assets. 777 S.W.2d at 765. This Court, however, chooses to disregard Buller’s testimony, in part because of her behavior at trial. In effect, the majority has assumed the role of factfinder: the majority doubts the witness’ veracity, and therefore deems her testimony unimportant, even in the absence of contradictory evidence.
. See Tex. Const, art. I, § 18 (1876); Tex. Const, art. I, § 15 (1869); Tex. Const, art. I, § 15 (1866); Tex. Const, art. I, § 15 (1861); Tex. Const, art. I, § 15 (1845).