TN -1 (08-12)

GN DAL02410.205 Service of a Garnishment Order (RTN 01 (08–2012))

A. Policy

1. State Court Garnishment Action

In general, a judgment creditor plaintiff may choose to pursue an ordinary garnishment action in state court to collect on a judgment or order against a judgment debtor defendant. The state court issues the garnishment order or writ that is to be served on the garnishee, such as SSA, which is holding a judgment debtor's assets, in accordance with the state rules governing service of process in state court garnishment actions. Below is information for the respective state laws governing service of process for garnishments and who may serve the garnishment on SSA as the garnishee for each State in the Dallas Region.

Arkansas: A garnishment is served on the garnishee by personal delivery, registered mail, or certified mail. Ark. Code Ann. § 16-110-402; Ark. R. Civ. P. 4. Service may be made by: (1) a sheriff of the county where the service is to be made, or his or her deputy; (2) any person not less than eighteen years of age appointed for the purpose of serving summons; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail or commercial delivery company, by the plaintiff or an attorney of record for the plaintiff. Ark. R. Civ. P. 4(c).

Louisiana: A garnishment is served on the garnishee by personal delivery, courier delivery, or registered or certified mail. La. Code Civ. Proc. Ann. art. 2412; La. Rev. Stat. Ann. § 3201; La. Rev. Stat. Ann. § 3204.

Service may be made by: (1) counsel for the plaintiff, or by the plaintiff if unrepresented by counsel; (2) an individual designated by the court in which the suit is filed; or (3) an individual authorized by the law of the place where the service is made. La. Rev. Stat. Ann. § 3204(A).

New Mexico: A garnishment is served on the garnishee in the manner provided by law for service of a civil summons and complaint, which is by personal delivery or by mail for actions pending in a magistrate court, and which is by personal delivery, mail, or commercial courier service (such as Federal Express or UPS), or in any other manner approved by the court, for actions pending in state district court. N.M. Stat. Ann. § 35-12-2(A) (service of garnishment in magistrate court); N.M. Mag. Ct. C.P.R. 2-202(E),(F); N.M. Dist. Ct. C.P.R. 1-065.2(B) (service of garnishment in state district court); N.M. Dist. Ct. C.P.R. 1-004(E),(J). Service may be made by: (1) a sheriff; or (2) any person who is over eighteen years old and is not a party to the action. N.M. Mag. Ct. C.P.R. 2-202(D); N.M. Dist. Ct. C.P.R. 1-004(D).

Oklahoma: A garnishment is served on the garnishee by personal delivery or certified mail, return receipt requested. Okla. Stat. Ann. tit. 12, § 1173.2; Okla. Stat. Ann. tit. 12, § 2004. Service may be made by: (1) a sheriff; (2) a deputy sheriff; (3) a person licensed to make service of process in civil cases; or (4) a person specially appointed for that purpose. Okla. Stat. Ann. tit. 12, § 2004(C)(1)(a).

Texas: A garnishment is served on the garnishee by personal delivery, courier receipted delivery, registered or certified mail, or by telephonic document transfer to the recipient's current telecopier number. Tex. R. Civ. P. 663a; Tex. R. Civ. P. 21a. Service may be made by: (1) a party to the suit; (2) an attorney of record; (3) a sheriff or constable; or (4) by any other person competent to testify. Tex. R. Civ. P. 21a.

NOTE: Effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding for spousal maintenance. However, this change only applies to those proceedings for income withholding for spousal maintenance that commenced after September 1, 2011.

2. Income Withholding Order (IWO)

In general, income withholding is the court ordered or administratively ordered deduction of a specified amount from the obligor's income for payment of child support to the obligee. Generally, at the time a court issues a child support order, the court will also issue a separate income withholding order that is to be served on an obligor's payor or employer, such as SSA, to deduct this amount from the obligor's income. Below is each state's respective laws governing the service of process of income withholding orders and who may serve the orders on SSA as the payor or employer.

Arkansas: At the time of issuance of a child support order approving an immediate order of income withholding, the court, Arkansas Office of Child Support Enforcement (OCSE), custodial parent, noncustodial parent, or a representative of the custodial or noncustodial parent may serve the order of income withholding upon the payor by first class mail. Ark. Code Ann. § 9-14-222; OCSE, Enforcement Case Services vs. Payment Processing Case Services, http://www.dfa.arkansas.gov/offices/childSupport/newToOCSE/Pages/compareServices.aspx (last accessed Apr. 29, 2011). If the payor does not properly remit the withholding, the serving party will send a second notice to the payor pursuant to Rule 4 of the Arkansas Rules of Civil Procedure. Id. The Arkansas Rules of Civil Procedure generally permit service by personal delivery, registered mail, or certified mail. Ark. R. Civ. P. 4. Service on the payor may be made by: (1) a sheriff of the county where the service is to be made, or his or her deputy; (2) any person not less than eighteen years of age appointed for the purpose of serving summons; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail or commercial delivery company, by the plaintiff or an attorney of record for the plaintiff. Ark. R. Civ. P. 4(c).

Louisiana: At the time of issuance of a child support order, the court shall order an immediate income assignment. La. Rev. Stat. Ann. § 46:236.3(B) (1). The court effectuates the income assignment order by providing written notice to the payor(s), advising the payor(s) to withhold an amount for current support. Id. This statute does not specify a particular manner of service for this written notice from the court.

Where an obligor is delinquent on a child support obligation and an immediate income assignment has not been issued, there are two ways an income assignment can be obtained and served on a payor, such as SSA, depending upon whether the Department of Children and Family Service (department) is providing services. Where the department is not providing services, an obligee can seek to have an immediate income assignment effectuated. La. Rev. Stat. Ann. § 46:236.3(C) (1). The obligee notifies the obligor of the delinquency and of the intent to ask a court to issue an income assignment order. Id; see also La. Rev. Stat. Ann. § 13:3204. If the obligor does not file a petition to stay service of the income assignment order, a payor may be served with a notice to withhold an amount for current support, plus an additional amount for any arrears, to be determined by the court. La. Rev. Stat. Ann. § 46:236.3(C)(4). The statute does not specify a particular method of service on the payor of this notice. Where the department is providing services, the department may provide written notice to a payor to withhold an amount for the current support, plus an additional amount, determined by the department, toward any arrears. La. Rev. Stat. Ann. § 46:236.3(D)(1). The statute specifies that in these instances, the department shall serve this notice upon a payor by certified mail, regular mail, transmission by electronic means, or personal or domiciliary service. La Rev. Stat. Ann. § 46:236.3(D)(1).

New Mexico: At the time of issuance of a child support order, the court shall also issue an order to withhold income. N.M. Stat. Ann. § 40-4A-4.1(B). The state's Title IV-D agency (the New Mexico Human Services Department, Child Support Enforcement Division), the support obligee, obligee's attorney, or court shall mail via certified mail the income withholding order to a payor, such as SSA. N.M. Stat. Ann. § 40-4A-4.1(F).

Where an obligor is delinquent on a child support obligation, the obligee or public office agency (the New Mexico Human Services Department, Child Support Enforcement Division, State Disbursement Unit) may prepare and serve notice of the delinquency on the obligor, file a notice to withhold income with the clerk of the district court, and serve the notice to withhold income on a payor, such as SSA, by certified mail or personal delivery. N.M. Stat. Ann. §§ 40-4A-2(M), 40-4A-4, 40-4A-5(A), (B).

With respect to subsequent payors, any order of income withholding or a notice for income withholding is binding against future payors by operation of law upon actual knowledge of the contents of the order or notice, or upon receipt by personal delivery or certified mail of a filed copy of the order or notice to the payor. N.M. Stat. Ann. § 40-4A-8(F). This provision does not expressly limit who can serve the filed copy of the order or notice on such a future payor.

Oklahoma: At the time of issuance of a child support order, the Oklahoma Department of Human Services or a person awarded child support by the district court or the Oklahoma Department of Human Services may apply to collect any current child support or any child support due and owing through a notice of income withholding, referred to as a notice of income assignment. Okla. Stat. Ann. tit. 12, § 1171.2(A). To properly serve the notice of income assignment on the payor, the applicant must send a notice of income assignment to the payor by certified mail, return receipt requested, or served according to law. Okla. Stat. Ann. tit. 12, § 1171.3 (Income assignment proceedings); Okla. Stat. Ann. tit. 56, § 240.2(D) (Enforcement proceedings by Child Support Enforcement Division of the Oklahoma Department of Human Services). Oklahoma law permits also permits service through personal delivery by a sheriff, deputy, or a person licensed or appointed to serve process. Okla. Stat. Ann. tit. 12, § 2004.

Texas: At the time of issuance of a child support order, a request can be made for issuance of an order or judicial writ of withholding directing an employer, such as SSA, to withhold an obligor's earnings for payment of child support. Tex. Fam. Code Ann. §§ 101.0161, 158.001, 158.104, 158.105. The clerk of the court issues a judicial writ of withholding directing and shall serve a certified copy of the order or judicial writ of withholding to the obligor's current or subsequent employer by first-class mail or, if requested, by certified or registered mail, return receipt requested, by electronic transmission, including electronic mail, or facsimile transmission. Tex. Fam. Code Ann. § 158.105(a),(c),(d).

Where an obligor is delinquent on a child support obligation or an income withholding was not ordered at the time child support was ordered, the Title IV-D agency, attorney representing the local domestic relations office, attorney appointed a friend of court, obligor, obligee, or private attorney representing the obligor or the obligee can request the clerk of court to issue a judicial writ of withholding. Tex. Fam. Code Ann. §§ 158.301, 158.312, 158.313. In this situation, the clerk shall issue and serve the writ on the employer in accordance with the same procedures set forth above in section 158.105. Tex. Fam. Code Ann. § 158.313(b).

With respect to subsequent employers, after the district clerk produces the writ, a party authorized to request the clerk for issuance of a writ of withholding, which includes the Title IV-D agency, attorney representing the local domestic relations office, attorney appointed a friend of court, obligor, obligee, or private attorney representing the obligor or the obligee, may issue a copy of the judicial writ of withholding to an obligor's subsequent employer by certified mail. Tex. Fam. Code Ann. § 158.319(a).

NOTE: Effective September 1, 2011, Texas law changed and now permits a Texas state court to order income withholding for spousal maintenance. However, this change only applies to those proceedings for income withholding for spousal maintenance that commenced after September 1, 2011.

B. Procedure

Improper Method of Service

If a garnishment order is delivered by a method not in accordance with the law of the State in which it is issued, return it to the court using the notice in NL 00703.726.


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