The Lone Star Writ of Garnishment

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AppId is over the quota

Even today, some Texas lawyers-particularly those representing garnishees-take the position that privates are not authorized to serve the writ of garnishment. Given the fact that my service of the writ has been challenged twice in the last two years, one could reasonably assume it happens regularly throughout the state. Most in this camp cite Rule 663 TRCP (October 1940) which states as follows:

The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.

For starters, it appears to me that Rule 663 does not expressly prohibit service by a private process server, but I digress. In my view Rule 103 TRCP amended and effective 2005, trumps 663. In support, the rule to wit:

Process-including citation and other notices, writs, orders, and other papers issued by the court-may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order.

Obviously, the writ of garnishment is not one that requires the actual taking of possession of a person, property or thing, nor one requiring that an enforcement action be physically enforced by the person delivering the process- as stated in 663, it's just another citation.

As for the outcome of my cases, in one instance the court upheld the service denying the garnishee's motion to dissolve. In the other, the plaintiff's attorney elected to have the writ re-served by constable rather than incur the additional expense to defend. In either case, my authority to serve the writ should never have been in question. Swift clarification from the Texas Supreme Court rules attorney would be helpful, or-in lieu of the same-the exercise of any remedy available to those of us who believe that 103 clearly grants authority to serve the writ of garnishment by persons certified under order of the Texas Supreme Court. There is no case law since 1999 supporting any notion to the contrary. Who's with me?

In his latest article, Marc Jaco- a veteran certified process server in Texas- discusses a possible rules conflict with the regard to service of the writ of garnishment. For more on this subject and other industry related news and information, go to http://www.perfectprocess.com/

IRAs, 401(k)s & Other Retirement Plans - Taking Your Money Out by Twila Slesnick and John Suttle

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AppId is over the quota

There are many books on investing that include chapters on IRAs, 401(k)s, and other retirement plans. However these books usually give the advice to ensure you are contributing to these plans and offer suggestions on what investment vehicles to use to help save a nest egg for a person's retirement years. This book is different. "IRAs, 401(k)s & Other Retirement Plans: Taking Your Money Out 9th Edition" by Twila Slesnick and John C. Suttle is not for the person wanting to invest for retirement, it is for the person who has reached retirement, or about to, and wants to take money out of these types of accounts. There are various rules, and this Nolo legal guide helps the reader navigate them.

Nolo calls this book a retirement companion, and in a sense, that is what it is. It is a very good guide on a subject that is becoming more important all the time as more and more people look to use the money they have been saving.

Chapter One covers types of retirement plans. Included are qualified plans such as profit-sharing plans, stock bonus plans, and money purchase pension plans. Individual Retirement Accounts such as Traditional IRAs, Rollover IRAs, and Roth IRAs are among those included. There is also a little on almost-qualified plans and nonqualified plans. Good brief overview of the plans.

Chapter two contains an overview of tax rules. While it won't take the place of your professional tax preparer, this chapter does provide some general guidance on the tax rules. Retirement plans are all about saving and using as much of your money as you can with as little taxes being paid as legally possible. To do this, you want to know the tax laws that are relevant, and this chapter does give the basics related to your retirement plans and funds.

To get some of the benefits certain retirement plans provide, you must keep funds in them until you reach a certain age. What if you need the money before that? Chapter three discusses early distributions and taking your money out before the law allows. If you need your retirement money early, this is a good chapter to read before talking it over with your financial and tax advisors.

Chapter four covers substantially equal periodic payments. This is a complicated exception to the early distribution tax. It is something some people may need when taking an early distribution. This again is a good chapter to read so you have a basic understanding of the concept before discussing with your financial and tax professionals.

While retirement plans have stipulations on when you can withdraw funds, they also have certain required distributions. Chapter five covers these and taking money out when you have to. Things such as special rules for Roth IRAs, penalties, and waivers are covered in this chapter.

Chapter six continues with required distributions during your lifetime. This is a good chapter for everyone to be familiar with since it discusses when you are required to start taking money out of your retirement plan or IRA.

Unfortunately, not everyone lives long enough to use their retirement money. Chapter seven focuses on distributions to your beneficiary if you die before age 70 1/2. Distribution methods, spouse beneficiary, nonspouse beneficiary, and no designated beneficiary are some of the topics in this chapter. If you don't care what happens after you die, this chapter won't mean much. But if you want to know what will happen with your accounts if you pass on without using them up, this chapter provides that information.

Chapter eight continues with distributions to your beneficiary if you die after age 70 1/2. Yep, it matters how old you are when you pass away as to what might happen with your funds. This chapter explains the differences. Like chapter seven, read it if you want to know what happens with your money if you die. These two chapters can help you prepare and plan to ensure your money goes where you want it to.

Chapter nine focuses on Roth IRAs. The book calls the Roth IRA one of the biggest sugarcoated carrots out there to encourage people to save for retirement. Personally, I believe them to be a great investment vehicle for many people. If you have a Roth IRA or are thinking about one, this chapter provides some good guidance and advice.

Chapter ten covers Roth 401(k) plans. If you have one and are under 59 1/2 years old and want to withdraw money from it, this chapter has some useful advice.

Appendix A contains some IRS forms, Notices, and Schedules. Appendix B has life expectancy tables. These are things to be familiar with when planning, and are included as a reference.

This is a very good reference for those that have this kind of investment and want to know the rules regarding getting their money out and using it, while minimizing taxes and not incurring penalties. It is especially important for those nearing retirement age as they prepare to transition from earning and saving to withdrawing and spending. There are some very good strategies and suggestions regarding what to do before and after retirement with your retirement plans and saving vehicles.

Alain Burrese, J.D. is a performance and personal development expert who teaches how to live, take action, and get things done through the Warrior's Edge. Alain combines his military, martial art, and Asian experiences with his business, law, and conflict resolution education into a powerful way of living with balance, honor, and integrity. He teaches how to use the Warrior's Edge to Take Action and Achieve Remarkable Results. Alain is the author of Hard-Won Wisdom From The School Of Hard Knocks, the DVDs Hapkido Hoshinsul, Streetfighting Essentials, Hapkido Cane, the Lock On Joint Locking series, and numerous articles and reviews. You can read more articles, over 100 reviews, and see clips of his DVDs as well as much more at http://www.burrese.com/