

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



 
JOHN M. STEVENSON AND ALL OTHER OCCUPANTS,
 
                           
  Appellant,
 
v.
 
HOUSING AUTHORITY OF THE CITY OF AUSTIN
  (HACA),
 
                           
  Appellee.


 
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No.
  08-10-00305-CV
 
Appeal from the
 
County
  Court at Law Number Two
 
of Travis
  County, Texas
 
(TC#C-1-CV-09-002256)
 



 
                                                                  O
P I N I O N
Appellant John M. Stevenson, pro
se (Stevenson), appeals from an order dismissing his de novo trial in a forcible entry and detainer action brought by
the Housing Authority of the City of Austin (HACA).  We affirm.
                                                               BACKGROUND
In
October 2005, Stevenson leased an apartment in a public housing community, which
is owned and operated by HACA in Austin, Texas. 
On November 12, 2008, Stevenson was notified that his lease was being
terminated due to his failure to pay rent. 
Stevenson was later notified to vacate the apartment by December 4,
2008.
Stevenson
failed to vacate the property and HACA filed a forcible detainer action in the Justice
of the Peace Court Precinct No. 1, in Travis County.  The justice court rendered judgment on the
jury verdict in favor of HACA.  Stevenson
appealed for a de novo trial in
county court and filed a pauper’s affidavit. 
See Tex. R. Civ. P. 749, 749a.
In
March 2009, HACA filed a motion for immediate issuance of writ of possession in
county court due to Stevenson’s failure to pay rent into the court’s registry.  See Tex. R. Civ. P. 749b. Stevenson removed
the case to federal court and a hearing on the motion for writ of possession in
the county court was recessed pending further action in federal court.  The federal court found removal improper and
remanded the case.  In April 2009, after
a hearing on HACA’s motion for immediate issuance of writ of possession, the
county court ordered that HACA recover possession and Stevenson be evicted from
the premises.[1]  Stevenson requested an emergency stay which
was denied.  The writ of possession was
executed on May 6, 2009.  On March 29,
2010, HACA moved to dismiss Stevenson’s de
novo trial as moot because his lease had expired.  After a hearing, the county court granted
HACA’s motion and dismissed the case with prejudice.  Stevenson now appeals the order of dismissal.
DISCUSSION
            In five issues, Stevenson contends that the county court
erred in dismissing his de novo trial
as moot because: (1) the county court erred by issuing a writ of possession to
HACA because he allegedly tendered payment to HACA in accordance with section
24.0053(d) of the Texas Property Code which HACA refused to accept;[2]
(2) he continued to pay rent to HACA, thus, his lease was still in full force
and effect; (3) the justice court erred by not including the conditions set
forth by the jury in its judgment; (4) he was denied due process due to the
flawed nature of the justice court’s proceedings; and (5) his case is not
moot.  In a sixth issue, Stevenson
asserts that he has a right to seek damages for the fair market value of his
lease pursuant to Texas Rule of Civil Procedure 748.  We begin by addressing Stevenson’s mootness
argument.
MOOTNESS
In Issue Five,
Stevenson contends that his case is not moot because he involuntarily vacated
the apartment, resided in the apartment when the appeal was filed, and asserted
a meritorious claim for the right to current and actual possession of the
apartment.  Citing to Marshall v. Housing Auth. of City of San
Antonio, 198 S.W.3d 782, 785 (Tex. 2006), HACA argues that Stevenson has
failed to present a potentially meritorious claim to current, actual possession
of the apartment because the issue of possession became moot when the lease
expired.  We agree.
We are prohibited
from deciding moot controversies.  Nat’l Collegiate Athletic Ass’n v. Jones,
1 S.W.3d 83, 86 (Tex. 1999).  A case is moot if a justiciable controversy
ceases to exist at any stage of the legal proceedings, including the appeal.  In re Kellogg
Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005).  In Marshall,
the Texas Supreme Court held that when a tenant gives up possession, the appeal
does not become moot as long as the appellate relief sought is “not futile;
that is, so long as she held and asserted a potentially meritorious claim of
right to current, actual possession of the apartment.”  Marshall,
198 S.W.3d at 787.
Stevenson attempts
to distinguish his case from Marshall
in order to avoid its application by arguing that he did not voluntarily vacate
his apartment and that he resided in the apartment at the time he filed an
appeal.  However, the Texas Supreme Court
held that coupled with her intent to appeal, Marshall’s voluntary departure was
not dispositive of the question of mootness. 
Id.  Rather the question of mootness turned on
whether Marshall held and asserted a potentially meritorious claim of a right
of possession.  Id.  The Supreme Court held that because
Marshall’s lease expired, and because she failed to present another basis for
claiming a current actual right to possession, the issue of possession became
moot when the lease expired.  Id.
Stevenson argues
that because he tendered the rent in an amount he calculated under section
24.0053(d) of the Property Code, he holds and asserts a meritorious claim to
current, actual possession of the apartment. 
Tex. Prop. Code Ann. §
24.0053(d) (West Supp. 2012) (if the tenant objects to the portion of the rent
to be paid during the appeal, the tenant is only required to pay the portion
claimed to be owed by the tenant until the issue is tried de novo in the county court). 
However, Stevenson’s reliance on section 24.0053(d) is misplaced because
nothing in the record indicates that his rent has been wholly or partly paid by
a government agency or that he even filed a motion to reconsider the amount of
rent required to be paid into the court registry.  See Tex. Prop. Code Ann. §§ 24.0053(c), (d)
(West Supp. 2012).  The record contains no
evidence affirming Stevenson’s allegations that he continued to pay rent or
tendered payment to HACA.  Stevenson’s
appellate brief fails to present any other basis for claiming a right to
current, actual possession of the apartment. 
Marshall, 198 S.W.3d at 787; see also Cavazos v. San Antonio Hous. Auth.,
No. 04-09-00659-CV, 2010 WL 2772450, at *1-2 (Tex. App. – San Antonio July 14,
2010, no pet.) (mem. op.).
The record establishes
that Stevenson’s lease expired in October 2008. 
Stevenson has not resided in the apartment since his eviction in May
2009, and HACA has leased the apartment at issue to another tenant.  Because Stevenson’s lease expired and because
he presents no basis for claiming a current, actual right to possession of the
premises, the issue of possession is moot. 
Marshall, 198 S.W.3d at 787.  As such, the county court’s order dismissing
Stevenson’s de novo trial was proper.  Id.  Accordingly, we overrule Issue Five.
Where the issue of possession is moot, issues independent of
possession are still reviewable on appeal. 
Rice v. Pinney, 51 S.W.3d 705,
707 (Tex. App. – Dallas 2001, no pet.).  Here,
Issues One, Two, and Six, all relate to the issue of possession; thus, we lack
jurisdiction to consider them.  See
A.V.A. Servs. v. Parts Indus. Corp., 949 S.W.2d 852, 853 (Tex. App. – Beaumont 1997, no writ) (dismissing
two points of error involving possession and deciding the merits of other
points); Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833, 834 (Tex. App. – Houston [14th Dist.] 1993,
writ denied) (stating that existence of landlord-tenant relationship is element
of possession issue and therefore not reviewable).
In Issue Three, Stevenson contends that the justice court’s
judgment is without merit and invalid. 
In Issue Four, Stevenson complains that due to the flawed nature of the
proceedings in the justice court, he was denied due process.  However, his complaints were rendered moot by
the de novo trial in the county court.  See Coleman
v. Bank of America, Nat. Ass’n, No. 06-11-00105-CV, 2012 WL 1940674,
at *1 (Tex. App. – Texarkana May 30 2012, no pet. h.) (the county court’s de novo trial rendered the justice court’s
default judgment moot and appellants’ point of error was overruled because it
failed to address an act or omission by the county court).  Accordingly, Issues Three and Four are overruled.
CONCLUSION
We affirm the judgment of the trial court.
 
                                                                        GUADALUPE
RIVERA, Justice
October 31, 2012
 
Before McClure, C.J., Rivera, J., and Antcliff, J.




[1]
On the day of the hearing, Stevenson was given until 5 p.m. to deposit $860 in
back rent and attorney’s fees in order to stay in possession of the apartment
pending the appeal, but Stevenson failed to meet the deadline.  See Tex.
R. Civ. P. 749b.
 


[2]  The record contains no evidence affirming Stevenson’s allegations
that he continued to pay rent or tendered payment to HACA.


