Conditional Grant and Opinion Filed October 13, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00745-CV
IN RE: SAVING GRACE #2, LLC, Relator
Original Proceeding from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-22-02837-A
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Breedlove
Opinion by Justice Goldstein
In this original proceeding, relator Saving Grace #2, LLC seeks mandamus
relief from the county court’s order staying execution of a writ of possession as to
real party in interest Cleatrice Willform-Castillo in the underlying eviction
proceeding. Saving Grace contends that (1) the county court’s stay order is void
because the county court lacked plenary jurisdiction to issue it and (2) in any event,
under section 24.007 of the Texas Property Code, the county court was barred from
granting a stay when Willform-Castillo did not file a timely supersedeas bond.
On August 16, 2023, we issued an order requesting a response to the petition.
Willform-Castillo filed a response to which relator replied. After reviewing the
parties’ briefs and the mandamus record, we have determined that Saving Grace is
entitled to the relief it requests. Accordingly, we conditionally grant mandamus
relief.
BACKGROUND
The underlying action is an eviction proceeding against Domancio Castillo
and “all other occupants” of a certain property in Garland, Texas. Visiting Judge Ted
Akin presided over an August 18, 2022, hearing in the county court.1 At the hearing,
Willform-Castillo advised the county court that she was Castillo’s ex-wife and also
an occupant. The visiting judge thus noted, “Well in that case both of them are
defendants, so I’m going to let her stay in that room.” Willform-Castillo was able to
cross-examine witnesses, submit evidence, and make arguments during the hearing.
On September 1, 2022, the county court issued a final judgment finding that relator
Saving Grace was entitled to possession of the property.
On September 14, 2022, Castillo filed a motion for emergency stay of the final
judgment, claiming that he did not have sufficient funds to move. He also filed a
notice of appeal2 and a motion for a stay in this Court. This Court denied the stay on
September 15, 2022, citing section 24.007 of the Texas Property Code.
1
Visiting Judge Akin conducted the hearing and issued the final judgment. Presiding Judge of County
Court at Law No. 1, the Hon. D’Metria Benson conducted the proceedings and issued orders relative to the
stay that is the subject of this original proceeding.
2
Castillo v. Saving Grace #22 LLC, No. 05-22-00900-CV, 2023 WL 5274554, at *1 (Tex. App.—
Dallas Aug. 16, 2023, no pet. h.) (mem. op.). Castillo’s appeal was dismissed for failure to file his appellate
brief.
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On September 26, 2022, Saving Grace filed an objection to the emergency-
stay motion pending in the county court. Saving Grace argued that Castillo’s request
for a stay was governed by section 24.007 of the Texas Property Code, which set
forth that enforcement of an eviction judgment could be stayed only by the posting
of a supersedeas bond within ten days of the date of the signing of the judgment.
Because the ten-day deadline had expired on September 14, 2022, Saving Grace
argued that the court was bound by law to deny the stay.
That same day, the county court held a hearing on the stay motion. At the
hearing, Willform-Castillo acknowledged that she did not request a supersedeas
bond within ten days of the judgment, claiming that she had been informed the bond
would not be necessary because the eviction was not based on nonpayment of rent.
She also argued that she received late notice of the judgment. The presiding judge
took the motion under advisement.
On October 21, 2022, Willform-Castillo filed a motion to amend. In the
motion, she advised the court that (1) she is “named as an occupant in the above
entitled cause” and (2) Castillo has given her power of attorney to represent him in
the proceeding.
On March 20, 2023, the Dallas County Clerk issued a writ of possession,
commanding the sheriff or any constable of Dallas County to deliver possession of
the premises from “Domancio Castillo and all other occupants” to Saving Grace.
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On May 4, 2023, Castillo filed a motion for emergency stay from writ of
possession in the county court. In the motion, he advised the court that he would be
in the hospital until May 15, 2023. He thus requested that the sheriff’s office wait
until May 18, 2023, to execute the writ of possession.
According to the declaration of Saving Grace’s manager, the Dallas County
Constable was prevented from executing the writ of possession on May 18, 2023.
During the attempted eviction on May 18, “Cleatrice Willform-Castillo got the
County Court on the telephone and the County Court instructed Deputy [Latoya]
Harris and her associates to ‘stand down’ because a court hearing [on the second
stay motion] was being scheduled for the next day.”
On the morning of May 19, 2023, Saving Grace filed an objection to the
emergency motion for stay from writ of possession. Saving Grace averred that
Castillo and Willform-Castillo did not file a supersedeas bond within ten days of
signing the final judgment and that the appeals court had already denied Castillo’s
request for a stay. Saving Grace also argued that the county court no longer had
plenary jurisdiction over the matter because the final judgment had been entered nine
months earlier and an appeal was now pending.
Later that day, at the hearing for the emergency motion, Willform-Castillo3
argued for the first time that, under Texas Rule of Civil Procedure 510.3(c), Saving
3
The record reflects that Patrice Castillo appeared at the hearing with no explanation or challenge as
to whether Partrice is Cleatrice; therefore we proceed forward with Cleatrice as the real party in interest
who attended the stay proceedings.
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Grace was required to name as defendants all tenants obligated under the lease who
were residing at the premises. She asserted that she was listed on the lease but the
proceedings up until that point had been against only Castillo. She thus contended
that the eviction was unenforceable against her because she was never named as a
participant and, therefore, never able to give a defense.
After the hearing, the county court allowed the execution of the writ of
possession to go forward only as to Castillo, but it ordered that the execution could
not go forward as to Willform-Castillo.
This original proceeding followed.
DISCUSSION
Asserting two issues, Saving Grace argues that (1) the county court’s order on
the second stay motion is null and void because the county court lacked plenary
jurisdiction to issue it4 and (2) the county court violated section 24.007 of the Texas
Property Code. Willform-Castillo filed a pro se response.5 We discern from the
response that Willform-Castillo avers: (1) that there was no service of process in the
eviction proceeding before Visiting Judge Akin, asserting a defect in parties; (2) that
4
We need not reach Saving Grace’s sub-issue that the county court’s order interferes with this Court’s
exclusive jurisdiction as our resolution of the primary issue is dispositive. See TEX. R. APP. P. 47.1.
5
We liberally construe pro se pleadings and briefs; however, we hold pro se litigants to the same
standards as licensed attorneys and require them to comply with applicable laws and rules of procedure.
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give a pro se
litigant an unfair advantage over a litigant who is represented by counsel. Harris v. Showcase Chevrolet,
231 S.W.3d 559, 561 (Tex. App.—Dallas 2007, no pet.). We note that Willform-Castillo did not
authenticate the exhibits attached to her brief for consideration as part of the mandamus record. Cf. TEX. R.
APP. P. 52.7(a). Based upon our analysis and conclusions set forth below, the exhibits were not necessary
to our consideration of the jurisdictional issue before us.
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the judgment should be set aside and a new trial ordered because she was not served,
which she contends was a violation of her right to due process; and (3) based upon
statutory violations, that she was a victim of retaliation for reporting needed repairs,
and whether the landlord can terminate a lease after tenant requests repairs, asserting
breach of contract.
Mandamus is an extraordinary remedy requiring the relator to show that (1)
the trial court has clearly abused its discretion and (2) relator lacks an adequate
appellate remedy. In re Copart, Inc., 619 S.W.3d 710, 713 (Tex. 2021) (per curiam)
(orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
(Tex. 2004) (orig. proceeding)). If an order is void, however, the relator need not
show it lacks an adequate appellate remedy, and mandamus relief is appropriate. In
re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) (orig. proceeding).
Generally, a trial court lacks power to act in a case after plenary power expires.
In re Lopez, No. 05-22-00793-CV, 05-22-00794-CV, 2022 WL 17261156, at *3
(Tex. App.—Dallas Nov. 29, 2022, orig. proceeding) (mem. op.). A judicial action
taken after plenary power expires is void. State ex rel. Latty v. Owens, 907 S.W.2d
484, 486 (Tex. 1995) (per curiam). By default, a trial court’s plenary power expires
thirty days after the final judgment is signed. TEX. R. CIV. P. 329b(d).
Here, the county court’s final judgment was signed on September 1, 2022. No
appropriate motion to extend the trial court’s plenary jurisdiction was filed within
30 days of the final judgment. Thus, the county court’s plenary jurisdiction expired
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on October 1, 2022. See TEX. R. CIV. P. 329b(d). The county court’s stay order was
entered on May 19, 2023—well past that deadline. Because the county court may
not issue a stay order after plenary power expires, see TEX. R. CIV. P. 329b(f)
(explaining the limited actions a court may take after plenary power expires), we
conclude that the stay order issued seven months after plenary power expired is void.
We next address Saving Grace’s second issue that the county court violated
section 24.007 of the Texas Property Code. Section 24.007 of the Texas Property
Code states:
24.007. APPEAL. 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.
TEX. PROP. CODE ANN. § 24.007. Texas Rule of Civil Procedure 510.13 also states:
The writ of possession, or execution, or both, will be issued by the clerk
of the county court according to the judgment rendered, and the same
will be executed by the sheriff or constable, as in other cases. The
judgment of the county court may not be stayed unless within 10 days
from the judgment the appellant files a supersedeas bond in an amount
set by the county court pursuant to Section 24.007 of the Texas Property
Code.
TEX. R. CIV. P. 510.13.
Here, it is undisputed that Willform-Castillo did not file a supersedeas bond
within ten days of the judgment, or even thereafter. Accordingly, we conclude that
the trial court abused its discretion by staying the writ of possession under these
circumstances. See In re Invum Three, LLC, 530 S.W.3d 748, 750 (Tex. App.—
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Houston [14th Dist.] 2017, orig. proceeding) (holding that trial court’s order staying
writ of possession was clear abuse of discretion where defendant failed to file a
supersedeas bond). Saving Grace also has no adequate remedy by appeal because
the rules do not provide for a right to appeal from an order staying the execution of
a writ of possession. Id. at 749.
We address Willform-Castillo’s assertion that the writ of possession could not
be enforced against her because she was not named in the petition and served with
citation. We conclude on this record that Willform-Castillo’s argument lacks merit.
Texas Rule of Civil Procedure 510.3(c) states:
If the eviction is based on a written residential lease, the plaintiff must
name as defendants all tenants obligated under the lease residing at the
premises whom plaintiff seeks to evict. No judgment or writ of
possession may issue or be executed against a tenant obligated under a
lease and residing at the premises who is not named in the petition and
served with citation.
TEX. R. CIV. P. 510.3(c). The record does indicate that Willform-Castillo was on the
original lease and that her name does not appear as a defendant on the petition for
eviction.
However, under Texas Rule of Civil Procedure 120, a party’s appearance in
open court has the same force and effect as if citation had been duly issued and
served on the party as provided by law. TEX. R. CIV. P. 120; Brown v. Apex Realty,
349 S.W.3d 162, 164–65 (Tex. App.—Dallas 2011, pet. dism’d) (holding tenants
waived service-of-process defects in eviction proceeding by appearing in trial court).
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The record reflects that Willform-Castillo appeared at the eviction hearing and
that the county court recognized her as a defendant. “When a defendant is deemed
to have answered and appeared in court, she waives all complaints as to defects in
the service of process.” Montgomery v. Chase Home Fin., LLC, No. 05-08-00888-
CV, 2009 WL 2784587, at *1 (Tex. App.—Dallas Sept. 2, 2009, no pet.) (mem. op.).
We conclude that Willform-Castillo’s appearance constitutes a waiver of all
complaints as to defects in the service of process, see Brown, 349 S.W.3d at 165,
and that the county court improperly entered the stay.
Other than the lack-of-service arguments we addressed above, the remainder
of Willform-Castillo’s response does not relate to the central issue in this mandamus
proceeding—whether the trial court had jurisdiction to grant a stay of execution of
the writ of possession as against Willform-Castillo. To the extent Willform-Castillo
endeavors to challenge the purported default judgment 6 enforcement in the forcible
detainer action, this is not a bill-of-review proceeding, and her argument has no
bearing on the jurisdictional issue raised. Finally, to the extent Willform-Castillo
complains that she was a victim of retaliation for reporting needed repairs and that
the landlord breached its contract, this argument is inapposite because it goes to the
merits of any timely perfected appeal and also has no bearing on the central issue of
this mandamus proceeding.
6
While the record reflects that the Final Judgment identifies only Castillo, it unquestionably was
entered after a trial on the merits, a trial with the presence and participation of Willform-Castillo as an
acknowledged defendant by the trial court and awarded possession of the subject property to Saving Grace.
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CONCLUSION
We conditionally grant Saving Grace’s petition and direct the trial court to
vacate its May 19, 2023, Order staying the writ of possession as to Willform-
Castillo. We are confident the trial court will vacate the order in accordance with
this opinion, and the writ will issue only if the trial court fails to do so.
230745f.p05 /Bonnie Lee Goldstein//
BONNIE LEE GOLDSTEIN
JUSTICE
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