                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 JOHN MICHAEL DUNCAN,                                           No. 08-10-00309-CV
                                                 §
                         Appellant,                                  Appeal from
                                                 §
 v.                                                              126th District Court
                                                 §
 THE STATE OF TEXAS,                                           of Travis County, Texas
                                                 §
                         Appellee.                           (TC # D-1-GV-10-000555)
                                                 §

                          MEMORANDUM OPINION ON MOTION

       This matter is before the Court on “Appellant’s Motion for Review of Adequacy of Security

to Stay Execution, for Temporary Orders, and Injunctive Relief.” For the reasons that follow, the

motion will be denied.

                                      FACTUAL SUMMARY

       In June 2009, in trial court cause number D-1-GV-07-000716, John Michael Duncan and the

State of Texas entered into an agreed judgment, which required Duncan to pay over $170,000 to the

State. At the same time, the parties entered into a judgment payment agreement through which the

State would forgive all but $76,172.72 of the judgment amount if Duncan would make monthly

payments of $1,500 until the reduced amount was paid in full. There is a dispute between the parties

as to whether Duncan complied with this agreement. The State attempted to execute on the agreed

judgment by obtaining a writ of execution to sell the two condominiums owned by Duncan. After

receiving a partial payment from Duncan, the State did not go forward with the sale.

       In May 2010, in trial court cause number D-1-GV-10-000555, the State filed an application

for writ of garnishment, seeking to recover on the agreed judgment by garnishing Duncan’s funds
on deposit with JP Morgan Chase Bank. As required by the garnishment statutes, the application

was supported by an assistant attorney general’s affidavit stating, “Within the Plaintiff’s knowledge,

debtor does not possess property within this state that is subject to execution and that is sufficient

to satisfy the judgment.” See TEX .CIV .PRAC.&REM .CODE ANN . § 63.001(2)(B)(West 2008).

Duncan asserted counterclaims for wrongful garnishment, declaratory judgment, and breach of

contract. The trial court granted a judgment of garnishment, ordering that the deposited funds be

paid to the State once the judgment becomes final. This judgment of garnishment is the subject of

this appeal.

         Duncan filed an appellate brief raising several issues. Among other things, he challenges the

trial court’s finding that the State did not have knowledge of assets that were subject to execution

and that would be sufficient to satisfy the agreed judgment. After Duncan’s brief was filed, the State

once again obtained a writ of execution for the two condominiums. They are currently scheduled

to be sold on May 3, 2011. The trial court denied Duncan’s motion to stay the execution sale and

to determine that the garnished funds operate as a supersedeas bond for the appeal.

         Duncan now seeks relief from this Court. In his motion, Duncan asks us to review the

adequacy of the garnished funds to serve as security and to issue a writ of supersedeas staying the

execution sale. He argues that the judgment is adequately secured by the garnished funds on deposit

with the bank. He contends that the execution sale will interfere with the jurisdiction of this Court

and render the pending appeal moot. Duncan also argues that the State is attempting to achieve a

double recovery by selling the condominiums and garnishing the deposited funds.1 Finally, he

believes that it is unfair for the State to levy on the condominiums after obtaining the garnishment


         1
          The State concedes that it is only entitled to one recovery. But at this point, it has not actually attained the
funds on deposit or the proceeds from the condominiums. How it obtains its recovery will depend on the results of the
pending appeal and the execution sale.
judgment on the ground that he did not have assets subject to execution that would satisfy his debt.

                                                   RULE 24

       Duncan brings his motion pursuant to Rule 24.4 of the Texas Rules of Appellate Procedure.

Rule 24 sets out the procedures for superseding a judgment when that judgment is being appealed.

Generally, enforcement of the judgment will be suspended pending appeal only if the judgment

debtor provides adequate security or the judgment creditor agrees to suspend enforcement. See

TEX .R.APP .P. 24.1. The rule allows an appellate court to review a trial court’s ruling regarding the

adequacy of security and to issue any temporary orders necessary to preserve the parties’ rights while

undertaking the review. See TEX .R.APP .P. 24.4(a), (c).

       Rule 24 has no application here. By its terms, the rule allows the enforcement of a judgment

to be suspended “pending appeal.” TEX .R.APP .P. 24. There is no pending appeal from the original

agreed judgment. In fact, that judgment has never been appealed. Since the original agreed

judgment is final, Duncan cannot supersede it now by posting security, and the State may enforce

it by any means allowed by law. The State is attempting to enforce it both by levying on the

condominiums and by garnishing the funds deposited with the bank.

       Rule 24 also does not apply to the garnishment judgment. Although there is a pending appeal

from that judgment, there is no dispute about the adequacy of security to supersede it. The

garnishment judgment is in effect being secured by the funds that are still being held by the bank

pending appeal. The State has forsworn executing on the garnishment judgment. It is not attempting

to execute on the garnishment judgment by levying on the condominiums. Instead, as noted above,

the State has levied on the condominiums to enforce the original agreed judgment.2

                                          INJUNCTIVE RELIEF

       2
           The Notice of Constable’s Sale specifically references cause number D-1-GV-07-000716.
        Duncan asks us to stay the execution sale. We may issue an injunction only if it is necessary

to enforce our jurisdiction, to preserve the subject matter of an appeal, or to prevent an appeal from

becoming moot. Mathis v. Barnes, 316 S.W.3d 795, 808-09 (Tex.App.--Tyler 2010, pet. filed); see

also TEX .GOV ’T CODE ANN . § 22.221(a)(West 2004). We cannot issue an injunction to preserve the

status quo, for equitable reasons, or merely to protect a party from damage pending appeal. Mathis,

316 S.W.3d at 809; Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 204 (Tex.App.--Waco 1998),

vacated on other grounds, 22 S.W.3d 849 (Tex. 2000); EMW Mfg. Co. v. Lemons, 724 S.W.2d 425,

426 (Tex.App.--Fort Worth 1987, no writ).

        The execution sale will not interfere with this Court’s jurisdiction over the appeal from the

garnishment judgment. It does not affect the subject matter of the appeal, which is whether the trial

court erred in denying Duncan’s counterclaims and granting the application for garnishment. Our

decision regarding Duncan’s counterclaims will affect whether he recovers damages from the State.

Our mandate on these issues can be carried into effect regardless of the sale of the condominiums.

As for the garnished funds, it is possible that the parties will agree not to pursue this appeal if the

sale satisfies all of Duncan’s debt to the State. But that does not mean that the sale itself will render

the appeal moot. Cf. Riner v. Briargrove Park Property Owners, Inc., 858 S.W.2d 370, 370 (Tex.

1993)(holding that the involuntary payment of a judgment, as through execution, does not moot an

appeal).

        A somewhat similar factual scenario was presented in West Flour Mill, Inc. v. Vance, 456

S.W.2d 481 (Tex.Civ.App.--Waco 1970, no writ). There, Vance obtained a final judgment against

West Mill. West Flour Mill, 456 S.W.2d at 481. After Vance began executing on the judgment and

a notice of sheriff’s sale issued for West Mill’s property, West Mill filed a petition for bill of review

to reinstate the earlier case for purposes of perfecting an appeal from the judgment. Id. When the
trial court denied West Mill’s request for a temporary injunction, West Mill appealed and filed an

original proceeding for writ of injunction. Id. In the original proceeding, the appellate court held

that it had “no jurisdiction to enjoin the Sheriff from levying execution on a judgment that has not

been superseded, is not on appeal, and has become final.” Id. at 481-82; see also EMW Mfg. Co.,

724 S.W.2d at 426-27 (refusing to grant an injunction under similar circumstances). The same is

true here.

       Duncan expresses concern about the State’s changing positions concerning the

condominiums, but this concern is not properly before us at this juncture. Having concluded that

Rule 24 is not implicated and that our jurisdiction is not threatened, we have no authority to enjoin

execution on the original agreed judgment. Therefore, this opinion should not be construed to

express any view, favorable or unfavorable, regarding the propriety of the execution sale.

       Duncan’s “Motion for Review of Adequacy of Security to Stay Execution, for Temporary

Orders, and Injunctive Relief” is denied.


April 20, 2011
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
