Opinion filed May 4, 2017




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00019-CV
                                  __________

                       JIMMY SHERROD, Appellant
                                         V.
                            GARY ROGERS, Appellee


                        On Appeal from the County Court
                              Glasscock County, Texas
                             Trial Court Cause No. 23



                     MEMORANDUM OPINION
      This is an appeal of an order from the county court of Glasscock County
dismissing Jimmy Sherrod’s appeal from the justice court’s judgment entered
against him in his eviction suit against Gary Rogers. The county court dismissed
Sherrod’s appeal on the basis that he did not file an appeal bond sufficient to invoke
the county court’s jurisdiction to consider his appeal of the eviction proceeding. In
a single issue, Sherrod contends that the county court erred in dismissing his appeal
on the basis that he did not sufficiently invoke the county court’s jurisdiction. We
reverse and remand.
                                          Background Facts
        Sherrod owns commercial property in Glasscock County. Rogers occupied
the commercial property under a lease agreement with Sherrod. Sherrod filed an
eviction suit against Rogers in the justice court of Glasscock County seeking to evict
Rogers from the commercial property. The justice court entered a “take nothing”
final judgment against Sherrod on November 21, 2016. The justice court also
awarded Rogers $10,000 for attorney’s fees against Sherrod and set the amount of
the appeal bond at $10,000.
        Relying on Rule 506.1(b) of the Texas Rules of Civil Procedure, Sherrod sent
an appeal bond in the amount of $500 on November 28, 2016, to the justice court. 1
See TEX. R. CIV. P. 506.1(b). On November 29, 2016, Sherrod sent an amended
appeal bond of $10,000. Rogers subsequently filed a motion to dismiss for want of
jurisdiction, arguing that the county court lacked jurisdiction because Sherrod did
not timely file an appeal bond in the required amount. On January 17, 2017, the
county court granted Rogers’s motion to dismiss.
                                                Analysis
        We note at the outset that Section 24.007 of the Texas Property Code provides
that the 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. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2016). Although
this appeal involves commercial property, this statute does not preclude this appeal
because the appeal does not concern the issue of possession but, rather, the
jurisdiction of the county court to consider Sherrod’s appeal from the justice court.

        1
          Rule 506.1(b) sets out the general rule for appeal bonds in justice court proceedings. It provides
that a plaintiff is required to post an appeal bond in the amount of $500.

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      Subject-matter jurisdiction is a legal question, which we review de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Accordingly, we
review a county court’s dismissal of an appeal from a justice court under a de novo
standard. Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.—Houston [1st Dist.]
2015, no pet.).
       “Eviction cases are governed by Rules 500–507 and 510 of Part V of the
Rules of Civil Procedure. To the extent of any conflict between Rule 510 and the
rest of Part V, Rule 510 applies.” TEX. R. CIV. P. 500.3(d). Rule 510.9 provides the
requirements and deadlines for filing an appeal bond in an eviction case. See TEX. R.
CIV. P. 510.9. To perfect an appeal from a justice court to a county court, the
appealing party must file an appeal bond or a statement of inability to pay within
five days after the judgment of the justice court is signed.           See TEX. R.
CIV. P. 510.9(a), (f).
      The parties agree that Sherrod timely filed an appeal bond.         However,
Sherrod’s appeal bond was defective because the justice court set the appeal bond at
$10,000 and Sherrod filed an appeal bond of only $500. Sherrod attempted to
remedy the defect by filing an appeal bond of $10,000 the following day. The county
court did not permit Sherrod to remedy the defective appeal bond and dismissed his
appeal for want of jurisdiction after considering Rogers’s motion to dismiss.
      Sherrod argues that his timely filed, but defective, appeal bond was sufficient
to invoke the jurisdiction of the county court. We agree. In Walker v. Blue Water
Garden Apartments, 776 S.W.2d 578 (Tex. 1989), the Texas Supreme Court
addressed the sufficiency of a defective appellate instrument in the context of an
eviction suit. The court stated:
            We have consistently held with respect to all such methods of
      perfecting appeal that the factor which determines whether jurisdiction

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      has been conferred on the appellate court is not the form or substance
      of the bond, certificate or affidavit, but whether the instrument “was
      filed in a bona fide attempt to invoke appellate court jurisdiction.”

776 S.W.2d at 581 (quoting United Ass’n of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry of the U.S. & Canada v. Borden, 328 S.W.2d 739,
741 (Tex. 1959)); see Warwick Towers Council of Co-Owners ex rel. St. Paul Fire &
Marine Ins. Co. v. Paul Warwick, L.P., 244 S.W.3d 838 (Tex. 2008).
      Rogers contends that the holding in Walker is inapplicable because it dealt
with a prior set of rules governing eviction suits that was replaced with new rules in
2013. We disagree with Rogers’s limited reading of Walker. The principle stated
in Walker reflects a universal position in Texas that a defect in form or substance in
filing an appellate instrument does not deprive the appellate court of jurisdiction.
The Texas Supreme Court has consistently held that a timely filed document, even
if defective, invokes the appellate court’s jurisdiction. See Sweed v. Nye, 323 S.W.3d
873, 875 (Tex. 2010) (citing Grand Prairie Indep. Sch. Dist. v. S. Parts Imports,
Inc., 813 S.W.2d 499, 500 (Tex. 1991)). Furthermore, courts construe appellate
procedural rules liberally in order to protect a party’s right to appeal. Verburgt v.
Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997).
      Under Walker, a defect in the form or substance of an appellate instrument
will not deprive the appellate court of jurisdiction so long as it was filed in a bona
fide attempt to invoke the appellate court’s jurisdiction. See Watkins v. Debusk, 286
S.W.3d 58, 61 (Tex. App.—El Paso 2009, no pet.) (“[I]n appealing a forcible entry
and detainer case from a justice court . . . the factor which determines whether
jurisdiction has been conferred on the appellate court is not the form or substance of
the bond, certificate or affidavit, but whether the instrument ‘was filed in a bona fide
attempt to invoke appellate court jurisdiction.’” (quoting Walker, 776 S.W.2d at
581)). In this case, Sherrod filed an appeal bond that constituted a bona fide attempt

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to invoke the county court’s jurisdiction. That appeal bond was timely under
Rule 510.9(a), the specific rule applicable to eviction appeals; however, it was not
for the requisite amount required by Rule 510.9(b). Sherrod corrected this error the
next day by filing an appeal bond in the amount of $10,000.
      Rogers contends that Texas law does not permit defective appeal bonds to be
amended in eviction appeals from justice courts for two reasons: (1) because
permitting parties to amend defective appeal bonds in eviction cases would allow
county courts to extend appellate deadlines, which they are not allowed to do, and
(2) because subsection (g) of Rule 506.1 conflicts with Rule 510.9. We disagree.
      Rule 500.5 states: “The judge may, for good cause shown, extend any time
period under these rules except those relating to new trial and appeal.” TEX. R.
CIV. P. 500.5(c). Rogers asserts that this rule prohibits the county court from
allowing Sherrod to amend his appeal bond. However, Rule 506.1 specifically
requires the county court to provide the appealing party with the opportunity to
remedy defects before dismissing his or her appeal. See TEX. R. CIV. P. 506.1(g)
(“An appeal must not be dismissed for defects or irregularities in procedure, either
of form or substance, without allowing the appellant, after 7 days’ notice from the
court, the opportunity to correct such defect.”).
      We do not read Rule 506.1(g) to conflict with Rule 510.9 to preclude Sherrod
from correcting his appeal bond. Rule 510.9(f) provides that “[a]n appeal is
perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of
Court Costs is filed in accordance with this rule.”      TEX. R. CIV. P. 510.9(f).
Rule 506.1(h) contains this same provision. See TEX. R. CIV. P. 506.1(h). We
conclude that Rule 506.1(g) supplements Rule 510.9 by prohibiting the dismissal of
appeals without giving the appealing party the opportunity to correct defects. See
TEX. R. CIV. P. 506.1(g), 510.9. This principle is well established, and courts have
recognized that a defective appeal bond may be amended in order to comply with
                                           5
the rules. See Grand Prairie Indep. Sch. Dist., 813 S.W.2d at 500; Rowe v. Watkins,
340 S.W.3d 860, 863 (Tex. App.—El Paso 2011, no pet.); Watkins, 286 S.W.3d at
61 (citing Walker, 776 S.W.2d at 581); Pharis v. Culver, 677 S.W.2d 168, 170 (Tex.
App.—Houston [1st Dist.] 1984, no writ); Family Inv. Co. of Houston v. Paley, 356
S.W.2d 353, 355 (Tex. Civ. App.—Houston 1962, writ dism’d).
      We conclude that the county court erred in dismissing Sherrod’s appeal
because he made a bona fide attempt to invoke the county court’s jurisdiction by
timely filing an appeal bond and because he corrected the defect in the appeal bond
within the time frame required by Rule 506.1(g). We sustain Sherrod’s sole issue
on appeal.
                                   This Court’s Ruling
      We reverse the county court’s judgment, and we remand the cause to the
county court for a trial de novo in accordance with Rule 510.10(c) of the Texas Rules
of Civil Procedure.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 4, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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