Opinion
No. 14-09-00438-CV
Opinion filed May 14, 2009.
Original Proceeding Writ of Mandamus.
Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
MEMORANDUM OPINION
On May 11, 2009, Relator's Petition for Writ of Mandamus was filed in this Court. See TEX. GOV'T CODE ANN § 22.221 (Vernon 2004); see also TEX. R. APP. P. 52.1. Relator asks this court to order the Honorable R.H. "Sandy" Bilstein, County Court at Law No. 4 of Fort Bend County, Texas, to rescind his order for forcible entry and detainer.
Relator relies on Tex. R. Civ. P. 755 to assert that her notice of appeal supersedes execution of a writ of possession because the premises are her principal residence. Rule 755 provides that a writ of possession shall not be suspended unless the premises are the principal residence of a party — it does not provide for an automatic suspension of a writ of possession if the premises are a principal residence. Moreover, the record in the underlying appeal reflects that this a nonpayment of rent forcible detainer case.
In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal, by complying with the following procedure:
(1) Within five days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the justice court registry one rental period's rent under the terms of the rental agreement.
(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.
(3) If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution.
(4) Landlord/appellee may withdraw any or all rent in the county court registry upon a) sworn motion and hearing, prior to final determination of the case, showing just cause, b) dismissal of the appeal, or c) order of the court upon final hearing.
Tex. R. Civ. P. 749b. The record does not reflect relator has satisfied the requirements of Rule 749b.
Relator has not established she is entitled to the extraordinary relief of a writ of mandamus. Accordingly, relators' petition for writ of mandamus is DENIED.