Opinion
No. 04-17-00197-CV
01-12-2018
Francisco SANCHEZ, Jr., Appellant v. TEXAS A&M UNIVERSITY- SAN ANTONIO, Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-06141
Honorable Karen H. Pozza, Judge Presiding
ORDER
In this appeal, Appellant Francisco Sanchez Jr. filed a docketing statement that disclosed that Appellant filed a petition for bankruptcy in the United States Bankruptcy Court for the Western District of Texas under Case No. 15-50125-rbk on January 8, 2015. See 11 U.S.C. § 362 (2012); TEX. R. APP. P. 8.1. Before the clerk's record was filed, on May 22, 2017, we abated the appeal and advised the parties we would treat it as a closed case unless and until a motion to reinstate was filed. See TEX. R. APP. P. 8.3.
On January 8, 2018, Appellee Texas A&M University at San Antonio filed a motion to reinstate the appeal. The University argues that the plain language of the automatic stay of the bankruptcy code stays commencement or continuation of a suit "against the debtor" but does not apply to a suit by the debtor. See 11 U.S.C. § 362(a)(1) (2012); Montgomery Ward & Co., Inc. v. Denton Cty. Appraisal Dist., 13 S.W.3d 828, 830 (Tex. App.—Fort Worth 2000, pet. denied) ("Congress intended only to stay suits filed against bankrupt debtors, not suits filed by bankrupt debtors."); Thiel v. Thiel, 780 S.W.2d 930, 930 (Tex. App.—San Antonio 1989, no writ) ("If the debtor was the plaintiff in the court below, the stay does not apply . . . .").
In an appendix to its motion, the University attached copies of file-stamped documents including Appellant's application to the bankruptcy court to approve hiring a law firm to file a suit, the federal district court's order approving the request, Appellant's first amended petition against the University, the state district court's judgment, and Appellant's notice of appeal.
The University also certified that Appellant Francisco Sanchez Jr. does not oppose reinstatement of the appeal.
In this case, our review of the file-stamped documents shows Appellant is the plaintiff, not the defendant, in the suit underlying this appeal, and there is nothing in the documents provided by the University or filed, to date, with this court that indicates Appellant was a counter-defendant in the underlying suit. We conclude the automatic stay does not apply. See 11 U.S.C. § 362(a)(1) (2012); Montgomery Ward, 13 S.W.3d at 830; Thiel, 780 S.W.2d at 930.
The University's motion to reinstate this appeal is GRANTED. We REINSTATE this appeal on the court's docket and we reinstate the appellate timetable.
The appellate record is due THIRTY DAYS from the date of this order.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of January, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court