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(a) For purposes of this Code section, the term:
(1) “Disposable earnings” shall be construed to mean that part of the earnings of an individual remaining after the deduction from those earnings of the amounts otherwise required by law to be withheld plus any premium for group accident and health insurance offered by the employer, if any.
(2) “Earnings” shall be construed to mean compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to pension or retirement programs or insurance policies of any type and includes unemployment compensation.
(b) If, after a court has issued a civil order directing child support be paid, or having received notice of the final determination of his support obligation, or having entered into a written agreement with the department to provide child support as provided in Code Section 19-11-15, the responsible parent fails to make the support payments within 30 days of the due date specified by the court order for child support of a civil nature, by the final determination or by a court order in affirmance of the final determination, or by the written support agreement, then the department shall be entitled to the process of garnishment of disposable earnings as in cases where judgment has been obtained or shall be authorized to issue an order to withhold and deliver.
(c) Except in cases of a court order for child support of a civil nature, prior to the institution of garnishment proceedings or the issuance of an order to withhold and deliver, the department shall conduct a hearing to determine finally:
(1) Whether the responsible parent has a defense or other legal excuse for his failure to make support payments; and
(2) The amount of support payments which are due and owing.
(d) The responsible parent shall be given at least 15 days' notice of the hearing required by subsection (c) of this Code section, which notice shall specify the amount of support payments claimed to be overdue.
(e) After a final determination required by subsection (c) of this Code section that the responsible parent had no legal excuse for failing to make support payments when due, the department shall be authorized to initiate garnishment proceedings of disposable earnings under subsection (f) of this Code section or issue an order to withhold and deliver disposable earnings under subsection (g) of this Code section.
(f) Pursuant to subsection (e) of this Code section, the department may initiate garnishment proceedings by causing to be made an affidavit stating the amount claimed to be due and attaching thereto a certified copy of the final determination. Bond shall not be required. All subsequent proceedings shall be the same as provided by law in relation to garnishments in other cases where judgment has been obtained.
(g)(1) Pursuant to subsection (e) of this Code section, the department may issue to any employer of the responsible parent an order to withhold and deliver to the department the disposable earnings which are due, owing, or belonging to the responsible parent; provided, however, that the maximum part of the aggregate disposable earnings of the responsible parent which may be subject to such an order shall not exceed that amount which is allowed by law to be subject to garnishment. The order to withhold and deliver shall be served at the same time on the employer and on the responsible parent either personally or by certified mail or statutory overnight delivery, return receipt requested, and shall include a statement as to the legal authority of the department to make such an order, the amount of the debt owing to the department, the amount of disposable earnings to be withheld and delivered to the department, and a summary of subsection (a) of this Code section and paragraph (2) of this subsection. Any employer of the responsible parent upon whom service is made is required to answer the order to withhold and deliver within 20 days, exclusive of the day of service, under oath and in writing, and shall file true answers to the matters inquired of therein. Based upon the answer filed by the employer, the department shall determine whether to rescind or continue the order to withhold and deliver. In the event there is in the possession of the employer any portion of the disposable earnings of the responsible parent which may be subject to the claim of the department under this article, the amount shall be withheld immediately upon receipt of the order to withhold and deliver and shall, after the 20 day period, be delivered forthwith to the department. The order to withhold and deliver shall continue to operate and require each employer to withhold and deliver to the department such amount of disposable earnings at each succeeding earnings disbursement interval until the entire overdue amount of the child support debt has been paid or until the department, after a redetermination based on change of circumstances, shall release the employer from the order to withhold and deliver. Delivery by the employer to the department of disposable earnings ordered to be withheld shall serve as full compliance with this article.
(2) Any employer which fails to answer an order to withhold and deliver within the time prescribed in this subsection or fails or refuses to deliver money pursuant to the order shall be liable to the department in an amount equal to 100 percent of the value of the debt which is the basis of the order, together with costs, interest, and reasonable attorney fees.
Cite this article: FindLaw.com - Texas Family Code - FAM § 6.402. Pleadings - last updated April 14, 2021 | https://codes.findlaw.com/tx/family-code/fam-sect-6-402.html
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