in Re: Karen Burks ( 2019 )

CONDITIONALLY GRANT and Opinion Filed August 21, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00796-CV
IN RE KAREN BURKS, Relator
Original Proceeding from the County Court at Law No. 7
Collin County, Texas
Trial Court Cause No. 007-01918-2019
MEMORANDUM OPINION
Before Justices Bridges, Reichek, and Carlyle
Opinion by Justice Bridges
In this original proceeding, we must decide whether relator Karen Burks timely perfected
her appeal of the underlying eviction case to the county court. We requested real party in interest
Orion Prosper Lakes LLC file a response to Burks’ petition for writ of mandamus. That response
was due July 15, 2019. No response was filed. We conclude Burks’ appeal was timely perfected
and conditionally grant a writ of mandamus to vacate the county court’s order remanding this
matter to justice court and reinstating in county court her appeal of the justice court’s judgment.
On May 13, 2019, Orion filed in justice court a sworn complaint for forcible detainer
seeking to have Burks evicted from property leased from Orion. On June 5, 2019, the justice court
signed a final judgment awarding possession of the property to Orion. On June 10, 2019, Burks
filed in justice court a notice of appeal and statement of inability to afford payment of court costs
or an appeal bond. On June 26, 2019, the county court signed an order remanding the case to
justice court “for execution of judgment” because Burks “failed to timely perfect his [sic] appeal.”
On June 27, 2019, Burks filed a motion for reconsideration pointing out that her notice of appeal
and statement of inability to pay were timely filed, and the county court’s docket sheet indicated
(1) Burks had no objection to the statement of inability to pay and (2) the case was for possession
only, and no funds needed to be paid into the court’s registry. After the county court remanded
the case to justice court, Burks filed this petition for writ of mandamus seeking to have the county
court’s order vacated and the case reinstated in county court for de novo appeal.
A party seeking mandamus relief must establish that (1) the trial court clearly abused its
discretion and (2) there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). There is no adequate remedy at law if
relator establishes that the county court abused its discretion by dismissing her appeal. See In re
Meredith, No. 03-15-00029-CV, 2015 WL 1968007, at * 2 (Tex. App—Austin May 1, 2015) (orig.
proceeding) (relator lacks an adequate remedy at law and is entitled to mandamus if she establishes
that the county court abused its discretion in denying her request to proceed without paying filing
fee).
A party may appeal a judgment in an eviction case by filing a bond, making a cash deposit,
or filing a sworn statement of inability to pay with the justice court within five days after the
judgment is signed. TEX. R. CIV. P. 510.9(a). An appeal of a justice court’s ruling is perfected
when a bond, cash deposit, or statement of inability to pay is filed in accordance with rule 510.9.
TEX. R. CIV. P. 510.9(f). An appellant who cannot furnish a bond or pay a cash deposit in the
amount required may instead file a statement of inability to pay. TEX. R. CIV. P. 510.9(c). The
statement may be contested within five days after receiving notice of the statement of inability to
pay. TEX. R. CIV. P. 510.9(c). If an appellant appeals an eviction for nonpayment of rent, the
justice court must provide the appellant with written notice regarding payment of rent into the
registry of the court. TEX. R. CIV. P. 510.9(c).
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Here, the justice court signed its judgment on June 5, 2019, awarding Orion possession of
the property. Burks timely filed a notice of appeal and affidavit of inability to pay costs on June
10, 2019. The justice court noted on its docket sheet that no payment of funds into the court
registry was required because the petition was for possession only, and no such funds were
deposited. The justice court notified Orion regarding the statement of inability to pay and advised
Orion it had five days to challenge the affidavit. Orion did not file a contest to the statement of
inability to pay. The affidavit contains the required financial information and otherwise complies
with the requirements of the property code and the rules of civil procedure. The justice court
forwarded the file to the county court, indicating its approval of the compliant affidavit.
We conclude the trial court abused its discretion in determining Burks’ appeal was not
timely perfected and remanding the underlying case to justice court. See In re Prudential Ins. Co.
of Am., 148 S.W.3d at 135–36. The trial court’s order does not dismiss the case, and we do not
treat the order as a judgment of dismissal that would be appealable. Accordingly, we conditionally
grant the writ of mandamus. We direct the trial court to, within twenty-one (21) days of the date
of this opinion, issue a written order vacating the trial court’s order remanding this matter to justice
court and reinstating in county court relator’s appeal of the justice court’s judgment. We are
confident the trial court will comply, but a writ will issue if the trial court fails to comply.
/David L. Bridges/
DAVID L. BRIDGES
190796F.P05 JUSTICE
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