                             Fourth Court of Appeals
                                    San Antonio, Texas
                                           June 26, 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 (not participating)

       Susan Cammack Foschini appeals the county court’s March 28, 2018 final judgment for
possession. Appellant has filed an “Emergency Ex Parte Motion for Temporary Restraining
Order and Temporary Injunction Against Possession.”

       The clerk of this court has provided a copy of appellant’s motion to appellee. We order
appellant must serve copies of all pleadings she files in this court on all parties to this appeal, in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure, and each document filed
must contain the proof of service and certificate required by rule 9.5(d) and (e). Appellant is
cautioned that this court will not consider any further motions filed ex parte.

       No bond is set in the judgment of possession, and appellant states the trial court has not
set a supersedeas bond. On June 8, 2018, the Kerr County District Clerk issued a writ of
possession. Appellant asserts she is indigent and requests this court to either waive supersedeas
bond or set a bond in an amount that “will not cause appellant economic harm.”

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).

        We deny Foschini’s motion to waive supersedeas and deny her motion requesting this
court to set a bond. We abate the appeal and order the trial court to conduct a hearing to set a
bond in accordance with section 24.007 of the Texas Property Code and rules 24.1 and 24.2 of
the Texas Rules of Appellate Procedure. In setting the amount required to supersede the
judgment, the trial court must take into account and balance two opposing interests. Stevenson v.
Franklin Gardens Apts., 511 S.W.3d 829, 831-32 (Tex. App.—El Paso 2016, order). The trial
court must “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.” Id. at 832. “At the same time, the trial court must lower the amount of security
required under Rule 24.2(a) to an amount that will not cause the judgment debtor substantial
economic harm.” Id. (citing TEX. R. APP. P. 24.2(b)). The trial court shall set a bond not later
than July 16, 2018 and require the trial court clerk to file a copy of its order with this court.

       We further order that execution of the writ of possession is stayed until ten days after the
bond is set.



                                                     _________________________________
                                                     Luz Elena D. Chapa, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of June, 2018.



                                                     ___________________________________
                                                     KEITH E. HOTTLE,
                                                     Clerk of Court
