                               Fourth Court of Appeals
                                     San Antonio, Texas
                                            June 21, 2018

                                        No. 04-18-00278-CV

                              Susan FOSCHINI (aka Susan Cammack),
                                          Appellant

                                                  v.

   THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for the
                    Certificate Holders of Swabs 2004-05,
                                  Appellees

                      From the 198th Judicial District Court, Kerr County, Texas
                                       Trial Court No. 17902C
                              Honorable Susan Harris, Judge Presiding


                                           ORDER

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

       Susan Cammack Foschini appealed the county court’s March 28, 2018 final judgment for
possession in an eviction case. The record has not yet been filed, and the record before this court
does not reflect whether the county court set a supersedeas bond or whether Foschini has posted
a supersedeas bond. The Kerr County District Clerk issued a writ of possession on June 8, 2018,
and on June 19, 2018, Foschini filed in this court an “Emergency Ex Parte Motion For
Temporary Restraining Order and Temporary Injunction Against Eviction.” We construe the
document as a motion to stay execution of a writ of possession.

        Foschini first contends the writ of possession issued by the Kerr County District Clerk
violates Texas Rule of Civil Procedure 510.8(d). However, Rule 510.8 does not apply after the
justice court’s judgment has been appealed to the county court for a trial de novo. When a
judgment of possession is issued after a trial de novo by the county court, Rule of Civil
Procedure 510.13 applies. That section states:

           The writ of possession, or execution, or both, will be issued by the clerk of the
           county court according to the judgment rendered, and the same will be executed
           by the sheriff or constable, as in other cases. The judgment of the county court
       may not be stayed unless within 10 days from the judgment the appellant files a
       supersedeas bond in an amount set by the county court pursuant to Section 24.007
       of the Texas Property Code.

Section 24.007 of the Property Code states:

       A final judgment of a county court in an eviction suit may not be appealed on the
       issue of possession unless the premises in question are being used for residential
       purposes only. 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 setting
       the supersedeas bond the county court shall provide protection for the appellee to
       the same extent as in any other appeal, taking into consideration the value of rents
       likely to accrue during appeal, damages which may occur as a result of the stay
       during appeal, and other damages or amounts as the court may deem appropriate.

TEX. PROP. CODE ANN. § 24.007 (West Supp. 2017). Foschini does not allege that she has filed a
supersedeas bond in an amount set by the county court. Accordingly, neither the Rules of Civil
Procedure nor the Texas Property Code authorize a stay of the writ of possession.

        Foschini next asserts the writ of possession issued by the Kerr County District Clerk is
void because it incorrectly cites the Texas Rules of Civil Procedure and because the
plaintiff/appellee did not have standing and was not entitled to a judgment. The first assertion is
without merit and the second is an issue to be addressed in the merits of the appeal.

       We therefore DENY Cammack’s motion.




                                                     _________________________________
                                                     Luz Elena D. Chapa, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of June, 2018.



                                                     ___________________________________
                                                     KEITH E. HOTTLE,
                                                     Clerk of Court
