I dissent.
The case of Delta County Levee Improvement District No. 2 v. Leonard, 559 S.W.2d 387 (Tex.Civ.App.-Texarkana 1977, writ ref'd n. r. e.), was rendered on October 25, 1977, and the mandate was filed with the Delta County District Clerk on June 7, 1978. The present suit was filed on October 1, 1979. On November 26, 1979, the appellees, other than Patsy Barton, caused a writ or writs of mandamus to be issued commanding the Delta County Commissioner Court and the Board of Supervisors of the Delta County Levee Improvement District No. 2 to levy, assess and collect taxes sufficient to pay the amount owed to them. The take nothing judgment was filed for record on January 16, 1980.
Appellants' primary assertion by this appeal is that the filing of the suit in 1971 seeking a writ of mandamus did not toll the operation of Article 3773, Tex.Rev.Civ.Stat.Ann., since judgments can only be kept alive by the issuance of writs of execution. This Court stated in the first appeal of Leonard v. Delta County Levee Improvement District No. 2, 507 S.W.2d 333 (Tex.Civ.App.-Texarkana 1974), affm'd, 516 S.W.2d 911 (Tex. 1975), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975), that:
". . . Art. 3773, supra, is the only method provided by statute in Texas to keep a judgment from becoming dormant. The law requires that a writ of execution be issued to keep a judgment lien alive against a political subdivision even though it provides as a matter of public policy that the property of the district is not subject to execution to pay the judgments rendered against the district. . . ."
And the Texas Supreme Court in the affirmance of the case stated:
". . . As stated above, Article 3773, Vernon's Tex.Rev.Civ.Stat., provides that the only method the limitation period governing the validity of a judgment can be extended beyond 10 years is through the issuance of a writ of execution.
"Although an execution is not the proper method of collecting on a judgment against a political subdivision, it is the means by which such a judgment can be kept alive to be subsequently enforced by a writ of mandamus. Article 3773 provides no other alternative. . . ."
As noted, the last executions were issued on February 11, 1966. On August 9, 1976, *Page 427 the trial court directed the clerk to issue the writ of mandamus, some six months after a ten-year period had elapsed. The writ or writs of mandamus actually issued and involved in the present litigation were not issued until November 26, 1979. I would therefore hold that the filing of the suit for mandamus in 1971 and the subsequent issuance of the writ, did not prevent the judgments from becoming dormant by reason of Article 3773.
The summary judgment rendered by the trial court was based upon the motion of appellees and not upon a motion made by appellants. Therefore this cause should be reversed and remanded. Cowan v. Woodrum, 472 S.W.2d 749 (Tex. 1971); Hinojosa v. Edgerton, 447 S.W.2d 670 (Tex. 1969).