Opinion
03-24-00442-CV
08-21-2024
Mark Thomas Cave, Appellant v. Kensington Apartments Austin, LP d/b/a Kensington Apartments, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY, NO. C-1-CV-24-001228, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
Before Byrne, Chief Justice Triana and Kelly Justices.
ORDER
PER CURIAM
On July 31, 2024, this Court issued a per curiam order staying the execution of a writ of possession to preserve the status quo, pending the Court's receipt of appellee Kensington Apartments' response to appellant Mark Thomas Cave's July 17, 2024 Emergency Motion to Stay or Recall Writ of Possession. Kensington Apartments has since responded and informed the Court that the Travis County Constable Precinct #5 executed the writ of possession on July 18, 2024, the same day that the Court requested that Kensington Apartments file a response to Cave's July 17 emergency motion. In its response, Kensington Apartments objects to Cave's July 17 emergency motion, arguing that any stay issued would have been an abuse of discretion because Cave had failed to comply with Texas Property Code Section 24.007.
Section 24.007 provides as follows: "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 its response, Kensington Apartments informs this Court that after the trial court rendered final judgment by jury verdict on June 27, 2024, the court imposed a supersedeas bond in the amount of $11,000. Ten days after the judgment expired on July 7, 2024. According to Kensington Apartments, Cave had not filed the $11,000 bond by that date, and to date, he has not filed it.Kensington Apartments also represents to the Court that Cave failed to raise a challenge to the supersedeas bond amount in any of his pleadings below.
On August 8, 2024, Cave filed an Emergency Motion to Reconsider Supersedeas Bond Amount, requesting that we reduce the bond amount to zero. Under Texas Property Code Section 24.007 and Rule 510.13 of the Texas Rules of Civil Procedure, this Court may not stay a writ of possession unless appellant files a supersedeas bond in the amount set by the county court. Thus, an appellant who seeks to challenge the supersedeas bond amount must do so before execution of the writ occurs. Otherwise, his challenge to the bond amount becomes moot because even if the motion were granted, the appellant can no longer supersede the judgment and we cannot stay the execution of the writ. Accordingly, the Court dismisses as moot this motion because the writ of possession has been executed and the eviction has already occurred. See Tex. Prop. Code Ann. § 24.007; Tex.R.Civ.P. 510.13; see also Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006) ("Thus, if a proper supersedeas bond is not filed, the judgment may be enforced, including issuance of a writ of possession evicting the tenant from the premises.").
Our stay of the writ of possession was mooted by the writ's execution. Even if it had not been rendered moot, we would lift the stay in light of the information provided by Kensington Apartments in its response about Cave's failure to post the supersedeas bond. We deny Cave's July 17, 2024 Emergency Motion to Stay or Recall Writ of Possession.
It is ordered on August 21, 2024.