Joe Gomez and Janie Gomez v. Thomas L. Dashiell ( 2015 )

Court Of Appeals Number 04-15-00440-CV
Trial Court Case Number 15-241CCL
Enclosed is a writ of possession Hand delivered On July 25,2015 To Us Joe and Jane
Gomez
Please review as we where not inform about supersedes bond by Kendall
county court or by Susan Jackson deputy county clerk. Any help we can receive on this
matter will be very appreciated. As we done have the funds to move at this point And
don't have Family to move in with.
Sincerely
Joe and Janie Gomez
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CAUSE NO. 15-241CCL
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THOMAS L. DASHIELL IN THE COUNTY COURT
VS. AT LAW
E JOE GOMEZ AND JANIE GOMEZ KENDALL COUNTY, TEXAS
WRIT OI" POSSESSION
TO ANY SHERIFF OR CONSTABLE OF THE STATE OF TEXAS—GREETING:
WHEREAS, on the 18th day of June, 2015 in tlie above cause, judgment was granted against JOE and
JANIE GOMEZ, 17 Hwy. 473 #3, Comfort, Texas 78013, in Kendall County, Texas, Defendants, entitling
Plaintiff, THOMAS L. DASHIELL, to possession of the premises located at 17 Hwy. 473 it 3, Comfort, Texas
78013 in Kendall County, Texas with the following legal description:
17 HWY. 473 S3, COMFORT, KENDALL COUNTY, TEXAS 78013
Together with the sum ofS935.00 past rentals and late fees, plus S161.00 filing fees and also the further costs or
executing this writ.
YOU ARE THEREFORE COMMANDED TO:
Post a written warning of at least 8V4 by 11 inches on the exterior of the front door of the premises, notifying the
tenant thai tills Writ has been issued and that it will be executed on or after a specific date and time slated in the
warning not sooner than 24 hours after the warning is posted; and when the Writ is executed:
Deliver possession of the premises to the Plaintiff; instruct the tenant and all persons claiming under the tenant to
leave the premises immediately, and, if the persons fail to comply, physically remove them; instruct tlie tenant to
remove or to allow the Plaintiff, the Plaintiffs representatives, or other persons acting under the officer's
'1v supervision to remove all personal property from the premises other than personal property' claimed to be owned by
the Plaintiff; and place, or have an authorized person place, the removed personal property outside the premises at a
nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or
I snowing.
YOU ARE HEREBY AUTHORIZED AT YOUR DISCRETION TO:
Engage the services of a bonded warehouseman to remove and store, subject to applicable law, parl or all of the
property at no cost to the Plaintiff or the officer executing the Writ.
YOU ARE HEREBY NOTIFIED THAT:
Pursuant to applicable law, you are not liable for damages resulting from the execution of this Writ if you
execute this Writ in good faith and with reasonable diligence; and you may, if necessary, use reasonable force in
executing this Writ.
HEREIN FAIL NOT, but of this writ make due return thereof showing how you have executed tlie same;
WITNESS BY HAND AND SEAL OF SAID COURT at office in the City of Boeme, County of Kendall, Texas,
this 24th day of July, 2015.
Susan Jackson, District Clerk
Kendall County, Texas
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SHERIFF'S RETURN
Came to hand on the 2!± day of 3q L 20/d at f'2o o'clockAM., and
executed on the.jt.vTuuy of il_^l«. , 20jj. J~at o'clock M, by
placing THOMAS L. DASHIELL, Plaintiff, in possession of the following property as directed
in this Writ:
Fees:
ShaiffV Constable
County, Texas
By Deputy
NO. 15-241-CCL
THOMAS L. DASHIELL IN THE COUNTY COURT
V. AT LAW
JOE and JAKIE GOMEZ KENDALL COUNTY, TEXAS
ORDER
On June 18, 2015 the Court entered its "Eviction Judgment" in the above cause.
On June 29, 2015 Janie Gomez filed her Notice of Appeal together with an
Affidavit of Inability to pay Appeal Bond.
Texas Property Code §24.007 regarding the requirements for an appeal from the
County Court stales:
§24.007(a) a judgment of a count}' coun in an eviction case mav 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... (emphasis added)
Appellants did not file a supersedeas bond in conformity with Texas Property
Code § 24.007(a).
Marshall v Housing Authority of the Citv of San Antonio. 198 S.W.3d 782, 786
(Tex. 2006) "The Texas Property Code provides that judgment in a forcible detainer
action may not be stayed pending appeal unless the appellant timely files a supersedeas
bond in the amount set by the trial court. TEX. PROP. CODE § 24.007. Thus, if a proper
supersedeas bond is not filed, the judgment may be enforced, including issuance of ajfi/ril
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of possession evicting the tenant from the premises.'' S
See, Marshal] v Housing Authority of the Citv of San Antonio. 183 S.W.3d 6Jfc .-■£
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(Tex.App.-San Antonio 2003)( Pet. granted) O
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IT IS, THEREFORE ORDERED that the Clerk of the Court issue as per the
5£
Judgment of June 18.2015 the Writ of Possession for the premises described as: 5
17 HWY. 473 #3, COMFORT, KENDALL COUNTY, TEXAS
Si an d this 2!5[ day of July 2015
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JUDGE BILL P.
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NO. 15-241-CCL
THOMAS L. DASHIELL IN THE COUNTY COURT
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V. *
AT LAW
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JOE and JANIE GOMEZ ♦
KENDALL COUNTY, TEXAS
EVICTION JUDGMENT
On the June 18,2015, came on to be heard the above entitled numbered cause.
The Plaintiff, THOMAS L. DASHIELL, appeared and announced ready for trial.
The Defendants, JOE and JANIE GOMEZ, given notice of hearing, failed to
appear.
The Court, after hearing the evidence and arguments, finds that the Plaintiff is
entitled to Judgment.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff,
THOMAS L. DASHIELL, have Judgment for possession of the premises and Writ of
Possession for the premises described as:
17 HWY. 473 #3, COMFORT, KENDALL COUNTY, TEXAS
IT IS FURTHER ORDERED, that THOMAS L. DASHiELL have judgment
against JOE GOMEZ AND JANIE GOMEZ for past rentals in the amount of $ 935.00
together with post judgment interest on said amount being 5% per annum.
All costs of Court expended or incurred in this cause are adjudged against
Defendants for let execution issue.
All writs and processes for the enforcement and collection of this
Judgment or the costs of court may issue as necessary. All other relief not expressly
granted herein is denied.
is
Signed this {O day of
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CC: Joe Gomez and Janie Gomez o
omas . as lell CERT|F|En TRUE AND CORRECT COPY CERTIFICATE
STATE OF TEXAS
COUNTY OF KENDALL
The document to which this eortttlcate ts affixed, containing /
pao.es. Is a full, true and correct copy of the original on lite and of
record In my office.
ATTEST:
TsUSAfJ JACKSON
KEWDALL COUNTY, TEXAS
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Barbara Griffin
Assistant Attorney General
Footnotes
1. An appeal from a justice court to a county court is tried de novo.
Tex. R. Civ. P. 574b.
2. You inform us that this sum comprises a judicial salary fee ($30);
security fee ($5); record management fee ($5); clerk's fee ($40);
court reporter service fee ($15); bailiff fee ($30); law library fund
fee ($15); appellate fee ($5); and mediation fund fee ($10).
3. Rule 143a provides: "If the applicant fails to pay the costs on
appeal from a judgment of a justice of the peace or small claims
court within twenty (20) days after being notified to do so by the
county clerk, the appeal shall be deemed not perfected and the
county clerk shall return all papers in said cause to the justice of
the peace having original jurisdiction and the justice of the peace
shall proceed as though no appeal had been attempted."
4. Rule 573 provides: "When the bond, or the affidavit in lieu
thereof, provided for in the rules applicable to justice courts, has
been filed and the previous requirements have been complied
with, the appeal shall be held to be perfected."
5. Rule 47(a) provides: "[A] judgment debtor may suspend the
execution of the judgment by filing a good and sufficient bond to
be approved by the clerk, subject to review by the court on
hearing, or making the deposit provided by rule 48, payable to the
judgment creditor in the amount provided below, conditioned that
the judgment creditor shall prosecute his appeal or writ of error
with effect and, in case the judgment of the Supreme Court or court
of appeals shall be against him, he shall perform its judgment,
sentence or decree and pay all such damages and costs as said
court may award against him."
6. Rule 145 of the Texas Rules of Civil Procedure, which allows a
party filing an original action to file an affidavit of inability to pay
both rules 143a and 571, the court, analogizing a justice court
appeal bond to a supersedeas bond, stated that a supersedeas bond
may serve as a cost bond if it is sufficient to secure the costs. The
court upheld the dismissal of Mr. Almahrabi's appeal on the
grounds that the amount of the bond was insufficient. "Appellant is
$110 short," the court said. Almahrabi, 868 S.W.2d at 10. We can
only assume that if Mr. Almahrabi's bond had been in the amount
of $10,110, the court would have ruled that his appeal was
perfected.
We turn now to your question regarding the effect of the filing of
an affidavit of inability pur-suant to rule 572. Rule 572 provides:
"Where appellant is unable to pay the costs of appeal, or give
security therefor, he shall nevertheless be entitled to appeal by
making strict proof of such inability within five days after the
judgment or order overruling motion for new trial is signed "
Tex. R. Civ. P. 572. The affidavit of inability may be contested by the
appellee and, if the justice court denies appellant's right of appeal
upon the affidavit, the matter will be heard by the county judge. Id.
Rule 572 recognizes the principle set out in the Texas Constitution
that courts must be open to all persons with legitimate disputes,
not just those who can afford to pay the fees to get in. See Tex.
Const, art. I, § 13 ("All courts shall be open, and every person for an
injury done him ... shall have remedy by due course of law.");
Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349,
353 (Tex. 1996). The rule was intended to allow a person unable to
pay costs or to give security therefor to perfect an appeal. An
appellant from a justice court who files an affidavit of inability
pursuant to rule 572 is not required to comply with a request for
payment of costs made pursuant to rule 143a in order to perfect an
appeal.^
SUMMARY
An appellant from a justice court who files an appeal bond in
compliance with rule 571 of the Texas Rules of Civil Procedure also
complies with rule 143a of the rules if the bond is in an amount
sufficient to cover the costs of appeal. An appellant from a justice
court who files an affidavit of inability pursuant to rule 572 is not
required to comply with a request for payment of costs made
pursuant to rule 143a in order to perfect an appeal.
Yours very truly,
Morales
signature
costs, might also apply to appeals from justice courts, since justice
court appeals are filed as original actions and tried de novo. We do
not believe that the rules require an appellant to file a rule 145
affidavit if an affidavit has already been filed pursuant to rule 572.
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