Fourth Court of Appeals
San Antonio, Texas
December 13, 2018
No. 04-18-00632-CV
Andrea PEREZ,
Appellant
v.
Santos SPARKMAN,
Appellee
From the County Court, Guadalupe County, Texas
Trial Court No. 2018-CV-0246
Honorable Robin V. Dwyer, Judge Presiding
ORDER
On September 6, 2018, appellant, Andrea Perez, filed a notice of appeal, appealing an
“Eviction Final Judgment” signed on August 16, 2018 by the county court in Guadalupe County.
The judgment awarded appellee, Santos Sparkman, possession of a residence located at 125
Dandelion Trail, San Marcos, Guadalupe County, Texas and indicated Sparkman was entitled to
a writ of possession on or after August 22, 2018. See TEX. PROP. CODE § 24.006(b). In the
judgment, the county court also set a supersedeas bond in the amount of $5,000.00. See TEX.
PROP. CODE ANN. § 24.007. In lieu of posting the supersedeas bond, Perez filed a “Statement of
Inability to Afford Payment of Court Costs or an Appeal Bond.”
In conjunction with her notice of appeal, Perez filed a “Plea for Emergency Stay and
Review of Excessive Supersedeas Bond,” requesting this court: (1) to stay the writ of possession
set to issue on September 7, 2018 and (2) to review the county court’s setting of supersedeas
bond in the amount of $5,000. See TEX. R. APP. P. 24.4. After consideration, we ultimately
granted the “Plea for Emergency Stay and Review of Excessive Supersedeas Bond” to the extent
that we ordered the writ of possession not to issue until further order of this court. See TEX.
PROP. CODE § 24.007; TEX. R. APP. P. 24.4. We also considered Perez’s challenge to the amount
of supersedeas bond ordered by the county court and concluded there was no evidence to support
it. We therefore granted Perez’s motion to the extent that we remanded the cause to the county
court “for the taking of evidence” and setting of a supersedeas bond in conformity with the
evidence. See TEX. R. APP. P. 24.4(d). We ordered the county court to hold an evidentiary
hearing and set the amount of supersedeas bond in conformity with the evidence.
On November 28, 2018, the county court held an evidentiary hearing and ordered the
supersedeas bond to be set at $3,606.00. In the order, the county court advised Perez that she
had ten (10) days from the date of the order to post the bond. Thereafter, copies of the
supplemental clerk’s and reporter’s records relating to the evidentiary hearing were filed in this
court for our review. On December 10, 2018, Perez filed in this court another “Plea for
Emergency Stay and Review of Excessive Supersedeas Bond,” challenging the amount of
supersedeas set by the county court. In her plea, Perez argues the county court abused its
discretion in setting the amount of supersedeas at $3,606.00 because it based the amount on the
amount of rent Sparkman would charge if he was renting the residence. Perez points out she is
not paying any rent on the property, and therefore, the amount of rent should be based on zero.
Pursuant to section 24.007 of the Texas Property Code:
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. A judgment of a county court 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. In setting
the supersedeas bond the county court shall provide protection for the appellee to
the same extent as in any other appeal, taking into consideration the value of rents
likely to accrue during appeal, damages which may occur as a result of the stay
during appeal, and other damages or amounts as the court may deem appropriate.
TEX. PROP. CODE § 24.007.
A trial judge is given broad discretion in determining the amount and type of security
required to supersede a judgment; we therefore review the trial court’s ruling under an abuse of
discretion standard. See Stevenson v. Franklin Gardens Apartments, No. 08-16-00017-CV, 2016,
WL 4013771, at *2 (Tex. App.—El Paso July 27, 2016, order); Miller v. Kennedy & Minshew,
P.C., 80 S.W.3d 161, 164 (Tex. App.—Fort Worth 2002, order). A trial court abuses its
discretion when it renders an arbitrary and unreasonable decision lacking support in the facts or
circumstances of the case, or when it acts in an arbitrary or unreasonable manner without
reference to guiding rules or principles. Stevenson, 2016 WL 4013771, at *2. “In setting the
amount required to supersede the judgment, the trial court was required to take into account and
balance two opposing interests.” Id. “The trial court was required to provide protection for the
appellee to the same extent as in any other appeal, taking into consideration the value of rents
likely to accrue during appeal, damages [that] may occur as a result of the stay during appeal,
and other damages or amounts as the court may deem appropriate.” Id. (citing TEX. PROP. CODE
§ 24.007). “At the same time, the trial court must lower the amount of security required under
[Texas Rule of Appellate Procedure] 24.2(a) to an amount that will not cause the judgment
debtor substantial economic harm.” Id. (citing TEX. R. APP. P. 24.2(b)).
Here, the county court based its calculation on Sparkman’s testimony that he would
charge a monthly rent of $1,200.00 to $1,300.00 for the premises if he was renting it out. The
county court also heard testimony from both Sparkman and Perez that other houses – smaller
than the premises at issue – were being rented for $1,000.00. Moreover, Sparkman produced
evidence that he is currently paying $150.00 a month for property insurance and $3,400.00
annually for property taxes. Using these amounts and basing the stay period on eighty (80) days
– the time span from the date of the eviction judgment and the date of our prior order – the
county court calculated the supersedeas amount to be $3,606.00. After consideration, we
conclude the county court did not abuse its discretion in calculating the supersedeas amount;
rather, the county court based its calculation in accordance with section 24.007 of the Texas
Property Code by taking into consideration the value of rents likely to accrue during the appeal
and other damages that may occur as a result of the stay. See TEX. PROP. CODE § 24.007.
Accordingly, appellant’s plea is DENIED and we ORDER our previous stay lifted.
Now that our review of the amount of supersedeas has been concluded, we ORDER Perez to file
her appellant’s brief on or before January 14, 2019.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 13th day of December, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court