COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00390-CV
IN RE RAY BELL RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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Relator Ray Bell filed a petition for writ of mandamus praying that we order
the county court to vacate (1) a September 7, 2012 order “Reauthorizing/Issuing
Writ of Possession” and (2) “all subsequent orders attempting to enforce the
eviction order that was stayed after Mr. Bell posted his supersedeas bond,” which
includes a September 7, 2012 writ of possession. We will conditionally grant the
petition in part.
1
See Tex. R. App. P. 47.4.
In January 2010, Bell entered into an agreement with Real Party in Interest
Rick Ray to lease a house from Ray. In May 2012, Ray filed a lawsuit in the
justice court against Bell complaining of “lease violations” and requesting
“possession of my property.” On June 4, 2012, the justice court signed a
judgment awarding Ray possession of the premises. Bell appealed the judgment
to the county court for a trial de novo. On July 30, 2012, the county court signed
a judgment in favor of Ray and stating that it would grant a writ of possession on
August 2, 2012. On or about August 1, 2012, Bell filed a request for findings of
fact and conclusions of law and a “Motion to Set Supersedeas Bond” pursuant to
property code section 24.007 and rule of appellate procedure 24. On August 2,
2012, the county court issued a first writ of possession commanding a peace
officer to deliver possession of the premises to Ray. However, also on August 2,
2012, the county court signed an order setting a supersedeas bond in the
amount of $2,500. Bell posted the $2,500 bond one day later on August 3, 2012,
and the county court signed an order suspending the first writ of possession the
same day. But several days later, on September 7, 2012, the county court
signed (1) an order “Reauthorizing/Issuing Writ of Possession” and (2) a second
writ of possession commanding a peace officer to deliver possession of the
premises to Ray ten days after the date the peace officer had posted notice of
the writ, or September 20, 2012. The order “Reauthorizing/Issuing Writ of
Possession” also directed that a portion of the supersedeas bond be released to
Ray. Several days before September 20, 2012, Bell filed this petition and a
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request for emergency relief asking that we stay the September 7, 2012 orders.
We granted Bell’s request for emergency relief and stayed the September 7,
2012 orders.
In his first point, Bell argues that the county court abused its discretion by
entering the order “Reauthorizing/Issuing Writ of Possession” and the second writ
of possession because he timely superseded the county court’s July 30, 2012
judgment awarding possession of the premises to Ray. In his second point, Bell
argues that the county court improperly ordered that his supersedeas bond be
disbursed to Ray. In his third point, Bell argues that the county court erred by
engaging in ex parte communications with Ray and issuing the challenged orders
without proper notice to Bell.
Mandamus relief is proper only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses
its discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding).
Unless the law or the rules of appellate procedure provide otherwise, a
judgment debtor may supersede a judgment pending appeal. Tex. R. App. P.
24.1(a). One method of superseding a judgment is to file with the trial court clerk
a good and sufficient bond. Tex. R. App. P. 24.1(a)(2). In terms of superseding
the judgment of a county court in an eviction proceeding, the property code
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provides that a “judgment of a county court in an eviction suit may not under any
circumstances be stayed pending appeal unless, within 10 days of the signing of
the judgment, the appellant files a supersedeas bond in an amount set by the
county court.” Tex. Prop. Code Ann. § 24.007(a) (West Supp. 2012).
Subsection (b) of section 24.007 even provides for the right of appeal from the
final judgment of a county court in an eviction suit, as we have in this case. Id.
§ 24.007(b). Thus, “if a proper supersedeas bond is not filed, the judgment may
be enforced, including issuance of a writ of possession evicting the tenant from
the premises.” Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782,
786 (Tex. 2006) (emphasis added). But “[e]nforcement of a judgment must be
suspended if the judgment is superseded.” Tex. R. App. P. 24.1(f) (emphasis
added).
Here, consistent with property code section 24.007, Bell superseded the
July 30, 2012 judgment awarding Ray possession of the premises by posting a
$2,500 bond within ten days of the judgment, on August 3, 2012. Any action to
enforce the judgment should have been suspended pending Bell’s appeal, if any,
of the judgment.2
2
Bell points out that he timely filed a request for findings of fact and
conclusions of law, which extended the deadline to file a notice of appeal to
within ninety days after the date the judgment was signed, or October 29, 2012.
See Tex. R. App. P. 26.1(a)(4); Tex. R. Civ. P. 296. However, the timeliness of
Bell’s appeal, if any, is not before us, and we express no opinion in this original
proceeding about the matter.
4
The order “Reauthorizing/Issuing Writ of Possession” states the following:
According to 24.007 T. Property Code, Appeal of Judgment of a
County Court on the Issue of Possession regarding a FED, the
premises must be used for residential purposes ONLY.
In the findings and Final Judgment of the Court, whether by
compensation or consent, the property in question was sublet for the
purposes of a commercial enterprise, or at minimum, for profiteering
of a third party, thus rendering appeal from County Court ineligible.
[Emphasis added.]
Thus, the trial court appeared to reconsider its earlier decision setting a
supersedeas bond because the premises at issue was apparently being used for
a “commercial enterprise” instead of for residential purposes only. However, the
authority relied upon by the county court is no longer the law. Before this last
legislative session, property code section 24.007 indeed stated that “[a] final
judgment of a county court in an eviction suit may not be appealed on the issue
of possession unless the premises in question are being used for residential
purposes only.” See Tex. Prop. Code Ann. § 24.007 (West 2000) (amended
2011) (current version at Tex. Prop. Code Ann. § 24.007 (West Supp. 2012)
(emphasis added). But in 2011, the legislature struck this language in its
entirety. See Acts of 2011, 82nd Leg., 1st C.S., ch. 3, § 2.02(a), 2011 Session
Law Serv. 116, 117 (West) (to be codified as an amendment to Tex. Prop. Code
Ann. § 24.007). Therefore, to the extent that the trial court relied upon this invalid
statutory language to reauthorize and issue the writ of possession, it erred by
doing so.
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We hold that the county court clearly abused its discretion by issuing the
September 7, 2012 orders and not continuing to suspend enforcement of the
judgment.
Nonetheless, Bell has advised us that he relinquished possession of the
premises on or about October 5, 2012, and he concedes that his first point is now
moot, but only as it relates to this original proceeding. Bell contends that
although the possession issue is moot for purposes of this original proceeding, it
is not moot as it relates to his appeal because he relinquished possession of the
property involuntarily and other issues, including damages, remain ripe for
appeal. See Marshall, 198 S.W.3d at 787 (“We have held . . . that payment of a
judgment will not moot an appeal from that judgment if the judgment debtor
timely and clearly expresses an intent to exercise the right of appeal and if
appellate relief is not futile.”). The only issues in this original proceeding concern
the county court’s refusal to suspend the judgment that Bell properly superseded.
As with the timeliness of an appeal, we express no opinion in this original
proceeding whether an appeal by Bell from the county court’s judgment is or is
not moot. We overrule Bell’s first point.
Although the portion of the order “Reauthorizing/Issuing Writ of
Possession” is moot as to possession for purposes of this original proceeding, it
is not moot regarding its direction to disburse the bond because Bell properly
superseded the judgment pending an appeal. See Universe Life Ins. Co. v.
Giles, 982 S.W.2d 488, 493 (Tex. App.—Texarkana 1998, pet. denied) (“The
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purpose of a supersedeas bond is to secure the appellee and abate, until
judgment becomes final, the remedies he would otherwise have for realizing his
judgment.”) (emphasis added); Muniz v. Vasquez, 797 S.W.2d 147, 150 (Tex.
App.—Houston [14th Dist.] 1990, no writ) (“While the trial court has limited
jurisdiction . . . during appeal as custodian of supersedeas funds set in either its
court or the appellate court, the trial court has absolutely no authority to disburse
those funds.”). The county court thus abused its discretion by ordering that a
portion of the bond be disbursed to Ray. We sustain Bell’s second point. Having
sustained Bell’s second point, we need not address his third point, in which he
requests no greater relief than that requested by his second point. See Tex. R.
App. P. 47.1.
Although Bell may file an appeal of the judgment evicting him from the
premises, he does not have an adequate remedy by appeal to challenge the
order reauthorizing the writ of possession and directing that his bond be
disbursed. See Tex. R. App. P. 24.4(a) (listing grounds for appellate review of
trial court rulings concerning superseding judgment).
Ray has filed several responses, and he requests that we “bring this suit to
a conclusion” and order the bond disbursed to him because Bell has vacated the
premises. As discussed, this is an original proceeding, and the only issues
concern the county court’s refusal to suspend the judgment. We have no
authority at this stage of the litigation to “bring this suit to a conclusion.”
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We conditionally grant Bell’s petition for writ of mandamus and direct the
county court to vacate its September 7, 2012 order “Reauthorizing/Issuing Writ of
Possession” insofar as the order directs that Bell’s supersedeas bond be
disbursed. A writ will issue only if the county court fails to do so.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: November 1, 2012
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