I have an attorney threatening Mandamus against one of my constables regarding a Writ of Possession. Under 24.0061 Property Code-Who actually is responsible for removing the personal property from the rental unit-the landlord or the constable. It has been the practice of our constables to supervise the landlords removal. But then who is to "place" the property for storage. The Tenant here, a bank, is wanting the constable to physically remove everything. By the way, we have no bonded warehouseman, etc.

Help! I dont want to spend Christmas getting ready for a mandamus

There can't be mandamus against your constable for failure to engage the services of a bonded warehouse, since use of a bonded warehouse to store items of personal property removed under a writ of possession is "at the officer's discretion". Tex. Prop. Code sec. 24.0061(e). Mandamus does not lie to compel a discretionary act. As far as who removes the property, your county's practice appears to be correct under the statute. Specifically, the writ itself is statutorily required to command the officer to "instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit othern than personal property claimed to be owned by the landlord[.]" Tex. Prop. Code sec. 24.0061(d)(2)(C). The only statutory restriction on where the property is placed after removal is that it cannot block a public sidewalk, passageway or street and it cannot be placed outside while it is raining, sleeting or snowing. Id. at (d)(2)(D). That may not prevent the filing of a mandamus (since all it takes to file a lawsuit is a little over $200 and a bad attitude), but your position appears to be solidly defensible.

I'd like to follow up on Julie's question with regard to who is responsible for removing personal property from the rental unit -- the landlord or the constable? Julie indicated that it has been the practice in her jurisdiction for the constable to supervise the landlord's removal of the property from the rental unit. That has also been the practice here. But recently some landlords have taken the position that they are not required to remove the property from the rental unit. If the landlord refuses to remove the property (and the tenant fails or refuses to remove it), is the constable required to remove it? Or can the constable simply remove the tenant from the premises and allow the landlord to take possession of the premises with the personal property still inside?

The safest course for a constable in enforcing the court's process is to stick to the language of the judgment and writ. Typically, that will restrict itself to awarding possession of the premises to the landlord. A writ of possession is not a traditional execution that obligates the constable to track down non-exempt property of the judgment debtor and seize it for judgment satisfaction. Nor is it a writ of sequestration that requires seizing specific personal property and storing it until the court makes a determination of ownership and possession. Very few hard-and-fast concepts come out of the case law analyzing an officer's duties in enforcing court process, but one of the clear principles that does emerge is the idea that a constable (or sheriff or deputy) is not responsible for adjudicating any issue concerning ownership or right of possession. The duty simply is to enforce the judgment and writ in their literal terms. Anything beyond that risks not only mucking up the enforcement process, but also divesting the constable of derived judicial immunity and/or the statutory good faith immunity provided in section 7.003 Civil Practice and Remedies Code. The landlord and tenant are left to fight it out in court over who gets the property, or who is responsible for the manner of its disposition. At least that's my humble opinion.