                                                                                               ACCEPTED
                                                                                           03-15-00215-CV
                                                                                                   5142601
                                                                                THIRD COURT OF APPEALS
                                             03-15-00215-CV                                AUSTIN, TEXAS
                                                                                       5/4/2015 3:48:42 PM
                                                                                         JEFFREY D. KYLE
                          CAUSE NO. --------                                                        CLERK



                     IN THE COURT OF APPEALS OF TEXAS
                              THIRD DISTRICT               FILED IN
                                                     3rd COURT OF APPEALS
                                  AUSTIN                 AUSTIN, TEXAS
                                                               5/4/2015 3:48:42 PM
         PLAINTIFF'S ORIGINAL PETITION AND                       JEFFREY
                                                        APPLICATION     FORD. KYLE
                                                                       Clerk
     EMERGENCY TEMPORARY RESTRAINING ORDER PENDING MOTION
                 FOR REVIEW OF TRIAL COURT'S ORDER

                                         Parties

1.      Lenny Acevedo is the plaintiff in this action. Fannie Mae is the defendant.

                               Venue and Jurisdiction      .

2.      This court has jurisdiction    over the controversy because the court has

statutory jurisdiction to hear the matter.

3.      Venue is proper in Travis County, Texas because the case plaintiff is asking

for relief from an order that was issued by the Travis County Court at Law #2.

                                         Facts

4.     On May 1, 2015, an order was signed allowing for a writ of possession to

issue on the property of Acevedo.      The order is not available to Plaintiff, as the

Travis County Clerk's office does not have it filed in the record and it could not be

located.

5.     The order was in response to a Motion to Challenge Insufficient Bond and

for Issuance of Writ.
 6.       The judge did not determine the insufficiency of the posted bond, he

 determined there was no bond and allowed execution of his previous judgment to

 issue a writ.

 7.       The judge erred by not determining the sufficiency of the bond, and if

 defective, the setting of a sufficient bond and allowing defendant time to cure the

defect.

                                             Cause of Action

8.        Because there was a posted bond to stay the execution of the judgment, if the

writ is allowed to be executed, it will be an unlawful eviction. The unsigned letter

dated April 17, 2015, asking for writ to issue alleges that "an appeal bond was not

filed".   I   This is a false statement.

9.        If he is unlawfully evicted, plaintiff will suffer irreparable harm.

               Application for Emergency Temporary Restraining Order

10.       Plaintiff petitions this court for an emergency temporary restraining order to

stay the writ of possession pending the Court's judgment of his Motion for Review

of Trial Court's Order, attached hereto.

11.       It is probable that the court will determine the judge erred in issuing the

order of execution.




I Exhibit I - Unsigned letter from Barrett Dafin Frapier Turner & Engel, LLP, attached hereto and incorporated
herein.
12.      If plaintiff's application is not granted, harm is imminent because the writ

will execute and defendant will be evicted.

13.      The harm that will result if the TRO is not issued is irreparable because

plaintiff will be in the street.

14.      Plaintiff has no adequate remedy at law because the writ has been issued, his

property has been posted, and the eviction is imminent.

15.      There is insufficient time to serve notice on the defendant and to hold a

hearing on the application.

16.      Plaintiff is willing to post bond if the   COUlt   deems it appropriate.

                           Request for Temporary Injunction

17.      Plaintiff asks the court to set its application for TRO for hearing, and after

hearing the application, issue a temporary injunction against defendant.

18.      Plaintiff attaches a copy of the clerk's docket as Exhibit 2, for the perusal of

the   COUtt.



                                           Prayer

         For these reasons, plaintiff asks the court to issue an emergency temporary

restraining order, restraining issuance of the writ of possession.

                                                    Respectfully submitted,

                                                    lsi James Minerve
                                                    James Minerve
                                                    State Bar No. 24008692
                                                    115 Saddle Blanket Trail
                                          Buda, Texas 78610
                                          (210) 336-5867
                                          (888) 230-6397 (Fax)
                                          Attorney for Lenny Acevedo




                        CERTIFICATE OF SERVICE

       A true and correct copy of the attached Plaintiffs Original Petition and
Application for Emergency Temporary Restraining Order as was sent by U. S.
Postal service on May 4, 2015 to:

      HOPKINS & WILLIAMS
      Mark D. Hopkins
      12117 Bee Caves Road, Suite 260
      Austin, Texas 78738
EXHIBIT 1
                                                                                                                  Filed: 4f2"/20- 5 5:58:08 PM
                                                                                                                              Dana DeBe au voir
                                                                                                                           Travi-s County ClerK
        BARRElT DAFFIN FRAPPIER                                                                     150{'" S'.;RVL \ OK UO! 'l E€:~llCV-15-000869
                                                                                                    SlilTE tOO                             .    p
          TURNER & ENGEL, LLP                                                                       .\OOIS(lN. TI:x: ',S 1~'lOI        A :1nanna erez
                                                                                                     r~L~Plltl.\'!: IQ-JI .1~(.·~o.ll'
               A PAATNERSHIP INCLUDING                                                              TFI.F('orl~R IQ-!;3't ..~~15
             PROFESSIONAL CORPORATIONS
      ATTORNEYS    AND COUNSELORS        AT LAW



 FILED VIA E-FILING


                                                           April 27. lOI;

TRAVIS COUNTY CLERK
P.O. Box 149325
Austin, Texas 78714-9325

Re:     FEDERAL NATIONAL MORTGAGE ASSOCIATION, tVIvA fA. NIE ?\IAH

        vs,

        LENNY ACEVEDO
        AND ALL OrnER OCCUPANTS OF                              Case # C-1-CV-15-000869
        1108 FOX SPARROW COVE
        PFLUGERVILLE, TEXAS 78660
        Cause No.:        C-1-ey-lHOO862
                                                                llllllllnlllllll~11111111111111111I111111111II1
                                                                 ......... _-_._ ...                                111I

Greetings:

     Judgment for Possession was previously granted in favor of the Plaintiff in the above r~rl!ICIlCCcJ
                                                                                                      matter 011APRIL 2,_mtj, and
an appeal bond has not been filed. Please immediately issue a Writ of'Possession against the Dcfcndam and unyand :)11occupants
of the property located at the address stated above. Please have the Constable serve the Wril immediately upon lts issuance and
tODtaet our Eviction Department at 1-800-266-262610 schedule a move out <IfId/llr ';0 advise us if the property becomes " icant,
In order to implement this set out, we are kindly requesting 48 hours notification p.io- to your scheduling of the cxccutior JI'lh~
writ.


                                                     Respecuully




                                                     BARRErr       IJAFI'I:--JFRAI'PII::R 1'l_!RNI~:R
                                                                                                    & ENGEL, LLP
                                                     Attorneys for Plaintiff
BDFTEII::                 00000002397453




EV_WritOfPossession.rpt      (10/17/2014) I Ver-37
EXHIBIT 2
                                                                                                                                                        TIME: 08:3345 AM
                                             TRAVIS COUNTY, STATE OF TEXAS
                                                                                                                                                        DATE: May 4,2015
                                                     P. O. BOX 149325
                                                                                                                                                        PAGE: 1
                                                AUSTIN, TeXAS 78714·9325

 C.1·CV.16.000869                        FEDERAL NATIONAL VS L ACEVEDO
               PARTY:
       COURT/JUDGE: CC2 COUNTY COURT AT LAW ##2       STATUS: DO    DISPOSED
         FILING DATE: 01·29·2015                  CASE TYPE: CJP CV J P APPEAL
DATE CASE ENTERED: 01·29·2015
   EVENT CATEGORY:
              PERIOD:            TO
   DATE          PARTY   EVENT                                                               RECEIPT ##                                                              AMOUNT
                                                           _::'=--.::::::=';.   ',=::' :'::':::::::'.':!'.="O: .•~':-=:.=:!::: :',,;:~=-_:.-::=.: ;:':::::::~':'~'=:'::':::::= :-:::::   r- ;::;:;:-: .
   01·29·2015     PL 1   ASM:CV JP APPEAL FILING                                                                                                  $257.00

                         Create New Case and Assess/Walve • Assessment Event


   01·29·2015     PL 1   ORD:CV CASH BOND ORDERED                                                                                                 $500.00



   01·29·2015     PL 1   OPN:CV JP APPEAL FILED



   01·29·2015     PL 1   ISS:CV NTC OF APPEAL AND COSTS



   01·29·2015     OF 1   ISS:CV MONEY ON DEPOSIT LTR



   01·29·2016     PL 1   PMT:CV CASH BOND PAYMENT                                            C 111621                                             $·500.00
                           Received Of: FEDERAL NATIONA
                                 Memo: TRAVIS CO JP 2

            _._ .._--_._------_._._.                     __ ._._--_                                                 --              _                    -                     '"


   02·04·2016            NTC:CV APPEAL & COST RETURNED



   02·05·2016
                                   ._---
                         PLD:CV LEneR
                                                __ -----
                                                .
                                          TO CLERK
                                                     .                   -_                _. - _..              .... _          _ -                                 _         .




   02·06·2016     PL 1   ASM:CV CIVIL FILING FEE                                                                                                   $257.00
                                        BARREn, DAFFIN



   02·05·2015     PL 1   PMT:CV CIVIL FILING FEE                                              C 111731                                             $·257.00
                           Received Of: BARREn, DAFFIN
                                 Memo:

            -_.-._-_._------
    02·26·2016           PLD:CV ENTRY OF APPEARANCE

                               ._--------.               __   . - ..      __ ... -             -- ..._ ... -....... -.__ ..... ..__ .... - .. - ..- ..
                                                                                                                                                  "


    02·26·2015            NTC:CV FILING RECORDS & AFFID



    02·26·2015            NTC:CV FILING RECORDS & AFFID

                                  ._-__ - -----_._            .... "--- ..             __ ..
    02·26·2016            NTC:CV SEnlNG
                                                                                                                                                               TIME: 06:33:46 AM
                                                                   TRAVIS COUNTY, STATE OF TEXAS
                                                                                                                                                               DATE: May 4,2016
                                                                           p, 0, BOX 149326
                                                                      AUSTIN, TEXAS 76714·9326                                                                 PAGE: 2

 C.1·CV.15·000888                         FECERAI. NATIONAL vs I. ACEVEDO
               PARTY:
       COURT/JUDaE: CC2 COUNTY COURT AT I.AW #2        STATUS: DO DISPOSED
         FILING DATE: 01·29·2016                    CASE TYPE: CJP CV J P APPEAL
DATE CASE ENTERED: 01·29·2016
   EVENT CATEGORY:
              PERIOD:            TO
   DATE                       PARTY         EVENT                                                           RECEIPT #                                                AMOUNT
    In   2&1.:;::- ..   ;-$   a...              aWiM   A-ab       ,....~~ltl;q~t:';,Ul'l'                    I'   (   "   ...   ~ ..   llf1,.....'II'·,;~,:r    ••   llf'lHlO\E">'·-;.V'




   03·09·2016                        PL 1   ASM:CV JP APPEAL FILING                                                                                       $·257,00

                                            Oupllcate entry, requealed vcid by Michelle Bryant 3/9/2016
                                            CB

   03·2302015                               PLD;CV FAA DOCKET CALL


   03·23·2015                        OF 1   PLO:CV ANSWER


   03·23·2015                               PLO:CV ENTRY OF APPEARANCE


   03-30·2015
                ----------------            EMS:CV JUDGE'S ACTION
                                                                                            ..... ~-.   -   . _"
                                            CASE TAKEN UNDER ADVISEMENT: TBCIWOP
                                            PARTIES APPEARED BY AND THROUGH COUNSEl. ONLY,
                                            dl,/2PM SHORTDKT

   03·31·2015                        OF 1   PLD:CV PLEA TO JURISDICTION


   04·02·2016                                EMS:OV JUOGe'S ORDER

                                            FINAL JUOGMENT AFTER NON·JURY TRiAL:
                                            dill))

    04·03-2016                               CT:CV STAFF ATTORNEY NOTES

                                            OTHER:
                                            Emelled to counael for Plaintiff, Mr, Hopkin" Judgment
                                            in this matter and Instructing him to serve the Judgment
                                            on Mr, Minerve,
                                            JJ

    04·06·2016                               OSP:CV JUOGMENT WRIT OF POSS


    04·06·2015                               MSC:CV ORO TO DISe SENT ACCTNG


    04·06·2016                       OF 1    ISS:CV NOT OF JOG RULE 306
                                                                                                                 TIMe: 08:33:46 AM
                                                      TRAVIS COUNTY, STATe Of! TeXAS
                                                                                                                 OATe: M@y4,2015
                                                              P. 0, BOX 14932G
                                                         AUSTIN, T~XA6 7Q714-9~211                               PAOE, 3

Q·1·QV.1,.OOOIOt                                       FeDeRAl. NATIONAl. VO I. Aceveoo
                  PARTY:
      OOURl'INOOE: C02 COUNTY COURT AT I,.AW ~2                           STATUS:    00    OIS~08SP
        FI~ING DATe: 01·as·a010                                        CASS TYPel:   CJP   CV J f) APPj;!AI,
DATE CASE eNTeRED: 01·28·2010
  EVENT CATEGORY:
           PIiRIOt?:                    TO



                       PI. 1   AeM:OV COpy      pea CI.ERK MAKES                                               $2.00
                                                 HOPKINS & WILLI


    04·08·2010                 PI.O:CV LETTER TO CLERK


    04·08·2010         PI. 1   PMT:OV COPY FEe OLERK MAKeS                           P 26604
                                 Rooolvod 01: HOPKINS & WILLI
                                       Momo: 04807797


    04·08·2010         PI. 1   DSB:OV OASH BOND DISBURSEMENT                                                   $4'10,00

                               DISBUReeo '47G.OO OK 114770
                               PJlld 10Iho ordor 01:Foder.' Nilion.'   Mort, Anoo
                               O·I,OV·10·000889    Bond R.'und

    04·09·2010                 PLO:OV NOTIOE OF APPEAL ~RD OT


                               MSO:CV ReO FOR REPORTERS RECRD


    04·01)·2015                PLO:CV LETTER TO OLERK


    04·09·2010                 PLP:OV NOTIOe OF APPEAL 3RD OT

                               NOTloe OF APPEAL

    04·1Q.2010                  MSO:CV ASSIGNMENT OF APPEAL

                               ASSIGNED TO: GUY D'ALESSIO

                                PLO:OV FILE COPY OF LETTER


    04·17·2010                  MOT:OV OTHER

                               MOTION TO OHALLENGE INSUFFICIENT BONO AND FOR ISSUANCE OF
                               WRIT

    04·20·20111                 NTC:OV HeARING
                                                                                          TIME: Oe:J~:4~ AM
                                              TRAVIS OOUNTY, STATe; OF' TEXAS
                                                                                          OArR: MilY ii, a010
                                                      ~, 0, aox 14Qa26
                                                 AUSTIN, TSXM '7G'i'11\.1l~2ij            FWJ15:   1\

C.1.eV·1O·000IOi                         FEOSRAL. NATIONAl. VB L A@eVC!Clo
                ~ARTY:
       OOURTfJUOGE: 002 CeUNiY COURT AT LAW tl2        STATUti:   00   tllfiFOSEP
         rl~ING DATE: 01·ge·a015                   (lASt:! TYFEI: CJP OV J P APFlI!AL
QATE CASt: I;NTEREO: 01·2e·~01l!
  eVfi!NT CATEGORY:
               PlaRIOr;l:        TO



                           FlW:OV PAX DOCKeT OALL


                   OF 1    PL.O:OV OT APPISALS APPID INAIlIL


    04·27·2016     PL 1    ASM:OV WRIT OF POSS OR SiClUES                               $6,00
                                         PARRt:TT DAFFIN


                   FI. 1   ASM:CV SI:RVICIiS WRIT OF POSSIaSS                           $100,QO
                                           BARRETT OAFFIN


                           PLO:CV LETTER TO OLf!RK


                   PL 1    PMT:CV WRIT OF PO~S OR SEQUjiS                               $·MO
                              Rfloolvlld Of: fJARReTT DAFFIN
                                     Memo: 00003&37


                   PI. 1   FMT:OV SERVICE WRIT OF POssess                               $·160,00
                             RocolVlld Of: BARRETT DAFFIN
                                   Momo: ooooaen


    04·3Q·2010     OF 1    ISS:OV WRIT OF POSSESSION

                           CONGTA6LE II
                                     CAUSE NO. ----------------

                              IN THE COURT OF APPEALS OF TEXAS
                                        THIRD DISTRICT
                                            AUSTIN

                     MOTION FOR REVIEW OF TRIAL COURT'S                                  ORDER
                                        from
                             CAUSE NO. C-I-CV-15-000869

FEDERAL NATIONAL MORTGAGE      §                                              IN THE COUNTY COURT
ASSOCIATION A/KJ A FANNIE MAE, §
     Plaintiff,                §                                              AT LAW NO. 2
                               §
v.                             §
LENNY ACEVEDO ET AL            §
     Defendant.                §                                              TRAVIS COUNTY, TEXAS

            Lenny Acevedo           files this Motion for Review of Trial Court's                    Order.    In

support of his motion, Acevedo will show the following:

           Acevedo was sued twice by Fannie Mae for forcible detainer.                         Acevedo cited

the two year statute of limitations                  as his defense.           The judge in the justice   COUlt


ruled in favor of Acevedo both times.                      In this instance, Fannie Mae appealed the

second judgment            for a trial de novo to county             COUlt.


           The trial was held on March 30, 2015, and the judgment                           of the   COUlt    was

signed on April 2, 2015 and filed in the record on April 6, 20151•                               On April 9,

2015, seven days after notification                 of the judgment,            Acevedo noticed the clerk of




1   Exhibit I - Judgment, attached hereto and incorporated herein.


Motion for review                                                             Page 1
    his intention to appeal'.            In its order, the court had not set a supersedeas bond

    amount, so Acevedo posted a $500 supersedeas surety bond3 at that time, in order

    to supersede the execution of the judgment.

            The judgment of the county court may not be stayed unless within 10 days

    from the judgment the appellant files a supersedeas bond, and because the signed

judgment was not recorded until April 6, Acevedo did not have time to petition the

    court to set a bond amount, so he filed a $500 supersedeas bond in order to stay

    execution.

            The bond was posted in the registry of the court and the writ was stayed.

The clerk did not contest the bond.

            On April 24, 2015, Fannie Mae filed a motion to challenge insufficient bond

and for issuance of writ". The hearing for this motion was held on May 1,2015.

           At the hearing, Judge Shepperd stated that he had not set a bond amount and

therefore, there was no bond in the record. Judge Shepperd reasoned that if he had

not set a bond amount, there could be no bond.

           Judge Shepperd did not rule on the insufficiency of the bond, and ordered

that the writ should issue pursuant to Tex.R.Civ.P. 24.

           The hearing was set for 9:00 a.m., and a writ of possession was issued by the

court at 8:00 a.m .., hours before the judgment in the case.                                  When Appellant

2   Exhibit 2 - Notice of Appeal, attached hereto and incorporated herein.
3   Exhibit 3 - Surety bond, attached hereto and incorporated herein.
4   Exhibit 4 - Motion to challenge insufficiency, attached hereto and incorporated herein.


Motion for review                                                           Page 2
 returned to his home after court, a 24 hour notice to vacate was posted to his front

door. The notice was posted at 8:50. This was before the hearing started.

                                ISSUES FOR REVIEW
                                      ISSUE 1

                      Did the   COUlt   rule on the motion before it?

                                           ISSUE 2
   If the trial court, in a trial for possession, did not set an amount of supersedeas
   bond, does Appellant have the right to post a supersedeas bond within ten days
                   from judgment to stay execution of the judgment?


                                          ISSUE 3

 Whether, on May 1, 2015, the trial COUlt had jurisdiction to amend its judgment by
                            setting a sufficient bond?


                                          ISSUE 4

    Whether a COUlt can issue process based on a judgment that has not yet been
                                      issued?

                       ARGUMENTS AND AUTHORITIES

       A supersedeas bond is part of the right of appeal. The court, by not setting a

supersedeas bond amount, denies Appellant the right to stay the judgment of the

court as it pertains to execution of a writ.

       "The supersedeas bond is part of the right of appeal and is only intended to

indemnify the judgment creditor from losses caused by delay of appeal. State v.




Motion for review                                        Page 3
 Watts, 197 S.W.2d 197 (Tex.Civ.App.-Austin        1946, writ refd) Muniz v. Vasquez,

797 S.W.2d 147 (Tex.App.-Houston,        1990).

       The trial court is obligated to extend all rights of due process to all parties.

In order to achieve this in a forcible detainer appeal, the cOUl1must set an amount

for supersedeas bond in its judgment.       To fail to set an amount, the cOUl1has

denied rights to which an appellant is entitled.

       If the trial court does not set an amount for supersedeas bond in a hearing for

possession, it denies Appellant the right to supersede enforcement of the judgment.

The setting of the amount of bond in a suit for possession should be an automatic

inclusion in any judgment for possession.

       ""A law which practically takes away from either party to litigation the right

to a fair and impartial trial in the courts provided by the constitution for the

determination of a given controversy, denies a remedy by due course of law".

Dillingham v. Putnam, 109 Tex.1, 14 S.W.303 (Tex. 1890) The Dillingham cOUl1

went on to hold that a legislative act making the right of appeal depend on the

giving of a supersedeas bond, without reference to the appellant's ability to pay,

was unconstitutional. Id. 14 S.W. at 305.

       In the absence of an amount for supersedeas bond, Appellant filed a $500

surety bond. Appellant had no idea as to what a properly sufficient bond would be,

but since time was of the essence, was able to find two sureties to sign a surety



Motion for review                                     Page 4
bond in the amount of $500.       Appellant also knew that if the bond was not

sufficient or defective, Fannie Mae had the right to petition the court for a higher

amount of bond. The $500 bond was filed and the court accepted the bond.

      Appellant had a right to file a bond to stay execution. In the absence of an

amount set by the court, if he had not filed a bond, he would have waived his right.

      At the hearing on the bond, the court did not determine that the bond was

defective or insufficient. Judge Shepperd stated that ten days had passed since his

judgment, and he therefore could not now set a bond amount.

      The court erred when, after motion and argument that the bond was

insufficient, it did not determine that there was a bond, the bond was insufficient,

set a sufficient bond amount and allow time to cure the defect.

      At the hearing on the Motion to challenge insufficient bond, Judge Shepperd

stated that he did not have jurisdiction to set a bond because it was more than ten

days after judgment.   The judge erred, pursuant to the Texas Appellate Rules, the

court maintains plenary power to set a sufficient bond when the sufficiency of the

bond is challenged. Tex.R.App.P. 24.3(a)(1).

       The trial court, even if its plenary powers had expired, maintains the

jurisdiction to amend its judgment.    "Even after the trial court's plenary power

expires, the trial court has continuing jurisdiction to order the amount and type of

security and decide the sufficiency of the sureties." Tex.R.App.P. 24.3(a)(1); see



Motion for review                                    Page 5
Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 at 260 (Tex.App-

Houston [1st Dist.] 2010, pet. dism'd);       In re MVG.,       285 S.W3d 573, 575

(Tex.App.-Waco      2009)(order abating appeal) (per curium)("And if the judgment

is superseded, the trial court nevertheless retains 'continuing jurisdiction'        to

evaluate the adequacy of the security required to supersede the judgment."_ Miller

v. Kennedy & Mishew, Prj'l Corp., 80 S.W.3d 161, 164 (Tex.App.-F011              Worth

2002, no pet. )(holding that trial court possesses authority after the expiration of its

plenary power to review the sufficiency of sureties on a supersedeas bond). Thus,

if the bond in the present case was a supersedeas bond, the trial court had

continuing jurisdiction to review the amount of the bond and the sufficiency of the

sureties.   See Tex.R.App.P.     24.3(a)(1). Cox v. Simmonds, Tex.App.-Corpus

Christi 2015).

       In the instant case, the court was noticed by motion that the supersedeas

bond was insufficient. The motion recognizes the fact that there is a supersedeas

bond filed, notwithstanding an insufficient amount. The court erred when it ruled

that because the court had not set the supersedeas bond amount, there was no bond.

Rather, the court was obligated to rule on the insufficiency, amend his judgment,

set a sufficient bond amount and allow Acevedo time to cure his defect.

       To determine that there was no bond is in direct contravention to the

evidence in the record that a bond was filed, and constitutes judicial error.



Motion for review                                      Page 6
      The court had an obligation, if there was a complaint of insufficiency, to set

the amount sufficient to supersede execution of a writ and allow Appellant time to

cure by posting a sufficient supersedeas bond.

      When the bond was challenged on the grounds of insufficiency, the court is

to determine 1) whether the bond was insufficient, 2) what amount of bond would

be sufficient, and 3) allow five days to cure the defective bond. Ashley Furniture

Industries Inc, v. Law Office of David Pierce, 311 S.W.3d 595, (Tex.App.-EI

Paso, 2010).

      When the trial court is called upon to review the sufficiency of the sureties

on a supersedeas bond, that review is conducted de novo. The trial court is to

decide the sufficiency of the sureties or the insufficiency of the bond. The court

must hold an evidentiary hearing to determine the sufficiency of the amount and

type of security and the sufficiency of the sureties. Lamar County Elec. Co-op.

Ass'n, 51 S.W.3d 801, 805 (Tex.App.-Texarkana        2001, pet. denied)(recognizing

trial court may determine sufficiency of sureties on supersedeas bond).

       In this case, the court did not determine the sufficiency of the bond. Rather,

it determined there was no bond and therefore a writ could issue. Appellant is not

able to provide a copy of the order issued on May 1, 2015, as it is not yet in the

record of the court.




Motion for review                                    Page 7
       If the bond was defective, as it appears it may have been, the court must then

determine the sufficient amount of supersedeas bond and enter an order giving

Acevedo twenty-one days to file an amended supersedeas bond. Miller v. Kennedy

& Minshew, 80 S.W3d 161 (Tex.App-Fort         WOlih, 2002).

       "-concluding      supersedeas   bond was insufficient to protect judgment

creditors and citing Rule 24.1 (e), holding "the trial court is required to order the

specific action it deems necessary to adequately protect the judgment creditor."

Huff Energy Fund, LP v. Longview Energy Company, No. 04-12-00630-CY,

(Tex.App.-San       Antonio, 2014).

      "The county court therefore had the authority to modify the amount of the

supersedeas   bond after the expiration of its plenary power."          Whitmire v.

Greenridge Place Apartments, No. 01-06-00963-CY            (Tex.App.-Houston      [1 st

District], 2007).

                                       SUMMARY

       Acevedo had a right to post a surety bond even though the court had not

included an amount for supersedeas in its original judgment.

       When a court has a motion before it, the court must rule on that motion and

no other. In the case of a motion for insufficient bond, the matter is handled de

novo. At that point, the court looks only to the motion before it and determines the

issue before it. That was not done in this case.



Motion for review                                    Page 8
      The motion for insufficient bond, which was before the court, asks that

because the Defendant had failed to post an appropriate bond in accordance with

Tex.R.Civ.P. 24, a writ should issue.       This is a defect in the pleadings and a

judicial impossibility to grant a writ pursuant to Tex.R.Civ.P. 24.

      Tex.R.Civ.P.     24 is Duty of Clerk.        Tex.R.App.P.24     is suspension of

enforcement of judgment pending appeal in civil cases. When challenged with the

insufficiency of a bond, the court must rule on that insufficiency and determine

what the sufficient amount to protect the creditor while on appeal is, and allow the

time to cure the defect.

      The issue before the court was not that no bond was posted and therefore,

judgement could not be stayed. The motion was for insufficiency of the bond.

      The   COUlt   erred in not determining the matter before it, which was: was the

bond insufficient?    If it is determined that the bond is insufficient, the   COUlt   must

set a sufficient amount, and give the party time to post a sufficient bond.

       The court erred by not ruling on the issue before it and allowing Acevedo

time to cure any defect.

       The writ was issued by the clerk of the court at 8:00 a.m. April 30, 2015 and

posted at 8:50 a.m. on May 1, 2015, the day of the hearing. The judgment in the




Motion for review                                      Page 9
hearing wasn't issued until close to 10:00 a.m ..5 Until the order of the court was

issued, the $500 supersedeas bond had not been determined to be insufficient and

therefore superseded the execution of a writ. This is impropriety at the very least.

                                                 PRAYER

        Lenny Acevedo prays that this COUlt consider the facts and the law and

reverse the judgment of the COUltand render this case for rehearing to set a

sufficient supersedeas bond amount with time to cure.

                                                                     Respectfully submitted,



                                                                     /s/ James Minerve
                                                                     James Minerve
                                                                     State Bar No. 24008692
                                                                     115 Saddle Blanket Trail
                                                                     Buda, Texas 78610
                                                                     (210) 336-5867
                                                                     (888) 230-6397 (Fax)
                                                                     Attorney for Lenny Acevedo

                               CERTIFICATE OF CONFERENCE

       Due to the exigency of the time limitations on filing this motion, during the
week end, I was unable to contact Mark Hopkins to confer as to his consent or
disagreement about filing this motion.


                                                             /s/ James Minerve

                                   CERTIFICATE OF SERVICE


5 There is no order in the record of the as of May 4, 2015 at 9:00 a.m., and parties were not given a copy of the
order.


Motion for review                                                      Page 10
       A true and correct copy of the attached Motion for Review as was sent by U.
S. Postal service on May 4, 2015 to:

      HOPKINS & WILLIAMS
      Mark D. Hopkins
      12117 Bee Caves Road, Suite 260
      Austin, Texas 78738

                                            lsi James Minerve




Motion for review                                  Page 11
EXHIBIT 1
                                    CAUSE NO. C~1-CV-15·000869

    FEDERAL NATIONAL MORTGAGE                       §
    ASSOCIATION AJIKJA FANNIE MAE,                  §
               Plaintiff,                           §
                                                    §
    V.                                              §
                                                    §
    LENNY ACEVEDO AND ALL                           §
    OTHER OCCUPANTS OF 1108                         §
    FOX SPARROW COVE,                               §
    PFLUGERVILLE, TEXAS 78660                       §
                                                    §
               Defendant(s).                        §




    occupants of 1108 Fox Sparrow Cove, Pfl



                                                                                                     -.
                                                                                                     =0
                                                                                                     iii~
                                                                                                     -
                                                                                                     fiEi!S~
                                                                                                               ....
                                                                                                               o<
                                                                                                               .!..
                                                                                                     li!ib
                                                                                                     iIi~
                                                                                                        co
                                                                                                     -
                                                                                                     •




                            CK C, KUEMPEL TRACT PHASE 3, SECTION FIVE, AN                            -
                               TRAVIS COUNTY, TEXAS, ACCORDING TO THE PLAT
                               L


                   a~'-4U'RD IN VOLUME 2002, PAGE 318, TRAVIS COUNTY, TEXAS.

                         FURTHER   ORDERED    that Plaintiff have and recover from Defendants

    reasonable attorney's fees at the trial court level in the amount of $1,000.00, which may be

    collected from the bond posted by defendant, if any, payable immediately by the Clerk of the

    Court upon presentation of this order, together with reasonable attorney's fees if the case is

    JUOGMBNT
    H609·15/   Acevedo                                                      Page 1




------------------------------------_.
unsuccessfully appealed to the Courts of Appeal in the amount of $2,000.00, reasonable

attorney's fees if the case is unsuccessfully appealed on writ of error to the Supreme Court of

Texas in the amount of $3,500.00, and if writ is granted by the Supreme Court but the appeal is

unsuccessful, reasonable attorney fees in the amount 0£$2,500.00.

        IT IS FURTHER ORDERED that plaintiff recover from the D~S)                     co~~t
court, for which let execution issue.                               /"             ~

        ALL RELIEF NOT EXPRESSLY ~~NTED                 HEREIN IS ~~~.

        SIGNEDthiS~YOf                  ~J

SUBMITTED BY:




IUDGMBNT
H609·15/ Acevedo                                                          Page 2
EXHIBIT 2
                                                                                  Filed: 4/9/201510:45:57 PM
                                                                                              Dana DeBeauvoir
                                                                                            Travis County Clerk
                                CAUSE NO. C-I-CV-1S-000869                                    C-1-CV-15-000869
                                                                                                  Adrianna Perez
FEDERAL NATIONAL MORTGAGE                        §           IN THE COUNTY COURT
ASSOCIATON AIKIA FANNIE MAE                      §
     Plaintiff                                   §
                                                 §
v.                                               §
                                                 §           AT LAW NO. 2
LENNY ACEVEDO and ALL                            §
OCCUPANTS OF 1108 FOX SPARROW                    §
COVE, PFLUGERVILLE, TEXAS 78660                  §
     Defendants.                                 §           TRAVIS COUNTY, TEXAS

                                     NOTICE OF APPEAL

       Lenny Acevedo notices this Court of his Notice of Appeal to the 3rd Court of Appeals,

from the Judgment issued on April 2, entered in the clerk's record on Apri16, 2015.                                I
                                                                                                                   I
                                                             Respectfully submitted,




                                  CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that a true and correct copy of the Notice of Appeal was
sent on AprU9, 2015 by U. S. Postal Service to:

       Mark D. Hopkins
       HOPKINS & WILLIAMS, PLLC
       12117 Bee Caves Rd., Suite 260
       Austin, Texas 78738
EXHIBIT 3
                                                                              Filed: 4/9/201510:45:57 PM
                                                                                          Dana DeBeauvoir
                                                                                        Travis County Clerk
                                   CAUSE NO. C-I-CV-lS-000869                             C-1-CV -15-000869
                                                                                              Adrianna Perez
  FEDERAL NATIONAL MORTGAGE                        §          IN THE COUNTY COURT
  ASSOCIATION AlKJA FANNIE MAE                     §
       Plaintiff                                   §
                                                   §
 v.                                                §
                                                   §          AT LAW NO. 2
 LENNY ACEVEDO and ALL                             §
 OCCUPANTS OF 1108 FOX SPARROW                     §
 COVE, PFLUGERVILLE, TEXAS 78660                   §
      De~ndantL                                    §          TRA VIS COUNTY, TEXAS

 KNOW ALL MEN BY THESE PRESENT,

 THAT, WHEREAS, judgment was rendered on the 2ndt day of April, 2015, in the
                  .                                                .

 County Court of Law #2 of Travis County and State of Texas, in favor of Federal

 National Mortgage Association and against Lenny Acevedo and all other

 Occupants in Cause No. C-I-CV-lS-000869 for possession, from which judgment the

 said, Lenny Acevedo            desires to appeal to the 3rd Court of Appeals at Austin,

 Texas.

 NOW THEREFORE; I, the said appellant Lenny Acevedo, as principal, and

.6iJ~",X"    f?c.Jy     and Cu,'I/lOna   &Ny4 as Sureties,   acknowledge ourselves bound to

 pay to the Appellee Federal National Mortgage Association, the sum of $500.00,

  conditioned. that said appellant shall prosecute his appeal to effect, and shall pay

  off and satisfy the judgment which may be rendered against him on said appeal.

  Witness our hands this        q rh   day of April 9, 2015


             ~k.(kj
            Le        Acevedo                          Principal
                                    Surety




The State of Texas           }
                             }SS
County of Travis             }

                                AFFIDA VIT OF SURETY

['~I               ' do swear   that I am worth, in my own right, at least the sum of

$500.00, after deducting from my property all that which is exempt by the

Constitution and Laws of the State from forced sale, and after the payment of all

my debts, and after satisfying all encumbrances upon my property which are

known to me; that I reside in -:rrA.LI', ~      County and have property in this State

liable to execution worth said amount or more.




SWORN TO AND SUBSCRIBED BEFORE ME this                     rzt\-l. day of April_1,   2015
                                KevjN 81ERWIRlH
                          Not~/V PubP~, Stdle 01 Texos
                            My com, miSSIon Elrp'!itt .
                               Oc 01)" 21.201'7           1

                                                                otary Public of the State of Texas
The State of Texas                                        }
                                                          }SS
County of Travis                                          }

                                                   AFFIDA VIT OF SURETY

I,C;:,'llgw" ~L...do                       swear that I am worth, in my own right, at least the sum of

$500.00, after deducting from my property all that which is exempt by the

Constitution and Laws of the State from forced sale, and after the payment of all

my debts, and after satisfying all encumbrances upon my property which are

known to me; that I am a property owner in                                7f"?AVI   :..S   County and have

property in this State liable to execution worth said amount or more,




SWORN TO AND SUBSCRIBED BEFORE ME this ~ fk day of April                                         t,2015,
                             kEVIN .'f~WIRtH
                       Noto/y PubllQ, 81QI. 01 Te)(o•
 .... "" ...... ,'..     MV CommJUIQh bpIJe,
                           Oof~b.r21, 20U
                                                                    Notary Public of the State of Texas

I hereby approve the foregoing Bond, this _                           day of April, 2015



                                                                 County Clerk
                                                                                         ACOT NOI                  "-9225




                            PAl       1,80 AUSTIN TX
                        000000006668 TX48036 Mar 31 • 1:29pm
~~':W.~~Sut:Ob'a'k1fQty:2rtQO'~~'~"J'H~li'                             ~I~..f ....·~#~,.,      ...··~·,.~\',A\~'\iiI· ,.' I}.-, ,',..                                                     J


      MAR31 ATM TXN FEB                                                                                                     1. 50                            11775.95
  ... MAR._3" • JATH"lfVl'HDAAWAIf~ ....,..~~·               ',W' ~,;t;;        ".-; ,,··~i.,~~;,@,                     '~02.\.00 '\< ( ....                 11573;96
                        PAl ISO AUSTIN TX
  ~Ai~~"'.~'&1~OOOOOO(j06f)69~I1'X48036                      'IHar'31 '>!iH{i·29t>m~.· ~~~~"'I*),,*,~f~                           "~'.\ll'i!,fio<'!"
                        Surcharge 2.00
 1'l4ARal%9'ATM~;~pa.B.~"'l'I·,'f. t.'.,~.. ,.".'                      ,.,·v'~'-\' .:~ '~t;;                                                           • 1'1,572-146
      MARlO' DEBIT PURCHASE                                                                                                                                  11563.80
 '~~f!If"t',·             iXAOOf03·59.'728tO~·WPPLUGBRVltJLE"                     TXI':I '~'H~          • ~}Nd",           ,n!, "
                 •      508900029974 12345678 Mar 30
''''MAR~l{(1IDBBllAi>tIRcntASlk~I.iJ.''''·Y;'~ J-i;lr " •.~ ::. I' .'. 4;t;." 11" .."                                    321.74                              1-1242.06
                        VZWRLSS.IVR VN 800-922-0204 NJ
  !!!:".~"l4"'::V~"       09·00002-89'15..11234.S6?8~Mari>31'ii·                                                                        .: .                           1'" ,J",...
                                                                                                                                                                                 ~.
      MARl 1 CHARGE PEB - PAPBR STATEMENT FBE                                                                              2.25                              1123~..          ;&1,
      ~~ .."'!I,~. ~~ 'p.!       ,.11' .J:j. •• ~',
                                   ~'A,.               v   .1,,1· ....  e.-,~     r '!"'iJ"-t
                                                                                         j    \! ·~'!""""»t;c,:'" t'" \                              ....... J.'.,...,.h .. •


                                                                       Cleated Share Draft Rec~p
.~     '1" :'f.\~'t~Dt'i(f,~...-·c'·Oate;l • ~ .l>'''·tAII\b{h'at; "'IDrtl6ti"'#  "~D.a~~",¢i,  ~W~AiI\i5unt;. Di"iifb' It <'Dat.e                                      Atnourfb

                    . ,).l'HJun1;i.l,,~ " ,!98.OA>;'U'l'6ji.·· . ,MARt6 >':I» yil~r9.0 '00 /,:,1-194
i'~.'lli1l~1lLd'1:S9::f                                                                           • ,IMAR23                                                                                                  78.'84
             1160          MAR95          155.12 *1167            MAR18           505.00 1195         MAR2l                                                                                                jOOO.OO
~N"'...·.~~~-;U:61~· "'HARl2·"· i""j'nOfOOt .·1'1'681>'"         oiMARt8'l~':Y'   600 00, ·1'196     'AAR:ro,                                                                                              1600~00
           -1163           MAR13          100.65 *1193            MAR18            45.00 ~197         MARlO
                                                                                                                               '   ..   '
                                                                                                                                                                                                           1900.00

                    1-------------------------------------------------------------------1
  -e-,..     I",~." jll', '.' 'l t ..., _ I ~.-l              I   Total ·fot'  I   Total                                                                                                           I
                    I                                         I this period I year-to-date                                                                                                         I
           ~'~ ..';   1.,. ........... ~,.~    ~·~;~"r~-';'      Ji:l~':':'" _ .. ~~     - ~ ~        ~ ~.   -.-   ~   -I .... 41,. ':"-.~'""'~"   ,!~,!,~_-c.;   I ...:..··""".. " .. ~ .. ,.~ .. :.~.I
                      ITotal          OVerdraft                  Fees                                                      1                       0.001                                 0,001
 V,;l,.".)~It,!t"     1.I1'Ot:a1.
                              1!tetUj'ne'd(Itelil"PetJ'S':,\\ ; • -•..•.•• 1       ,'," ,',.0                                                        00 I                               .O~00 I
                      1-------------------------------------------------------------------1
                                           •   I



                      -----------------------SUMMARy-----------------------
M~·~'1I-"~ .....,...4' '~t     ~    ~""'.!~,r.,...  r- ,,~,.        • :'.".     ":~'.            '.                    -   j


                      Previous                Balance            as of 01 MAR 15                                       .

                      Total         of 12 Share Drafts for                     .                                                             8422,65 -
                      Total         of, 1~0 Oth'E!J;"
                                                    Debits fo):                .                                                             9461.54 -
                      Total         of 18 Deposits for".,                 ,.,.                                                               1493.50 +
             ,.,      Total         o'f 2 other 'Cri!dits"for   •........                                                                    2103.12'0+

                      Bnding          Balance                  ail of II                MAR 15 •.•.....                                     11239,.81

                            Continued               dn page ·12

                                                                                                                                                                                                              ~      ~QUAl. HOIISIHG
                                                                                                                                                                                                              l.!SLEND8R
                                                                                                                                                                                                              Fed~'ly losu.ed by NeVil.
EXHIBIT 4
                                                                                          tiMILY YURAS
 HOPKINS      &. WILLIAMS                                                                 ImllyO"opkln,wlllloml.QQm
             M.~.e.



         April 17, 201S

         Via reg,dar U.S. mall
         and CMRRRN 70121640000171146J19
         LCWlY Acevedo and All Other Occupants
         1108 Fox SpfUTOW cove
         Pflugerville, Texas 78660


                  RB:     CAUSE NO. C·l·CV·15·000869i Federal National Mortgage Association v,
                          unny Acevedo and all Occupants of J 108 Fox Sparrow Cove, Pflugerville, TX
                          78660, In the County Court at Law No.2, Travis County, Te~as

                          H609·15

         Dear Mr. Acevedo:

                  Please find enclosed the Motion 10 Challenge Insufflciew Bond tmd for /SSU(l(fceof Writ
         filed In the above- referenced ceuse on April 17,2015.




                                                                          ~ry
                                                                          ~.        Yuraa, Legal Assistant to
                                                                          HOPKINS   & WILI.IAMS, PLLC




t 512·60Q·<\320    www.hQpkln,wllll.m,,~om
f 512:6QO.4326     12117 BII' Cavua Road, Sulto 260, A...,tlo, TX 7G738
                                    CAUSE NO. C-I-CV-15-000869

FEDERAL NATIONAL MORTGAGE                           §                   IN THE COUNTY COURT
ASSOCIATION AJIKJA FANNIE MAE,                      §
     Plaintiff,                                     §
                                                    §
V.                                                  §                                AT LAW NO. 2
                                                    §
LENNY ACEVEDO AND ALL                               §
OTHER OCCUPANTS OF 1108                             §
FOX SPARROW COVE,                                   §
PFLUGERVILLE, TEXAS 78660                           §
                                                    §
       Defendant(s}. .                              §                   TRAVIS COUNTY, TEXAS

 MOTION TO CHALLENGE INSUFFICIENT                       BOND AND FOR ISSUANCE OF WRIT


        COMES NOW, FEDERAL NATIONAL MORTGAGE ASSOCIATION AlKJA

FANNIE MAE, Plaintiff, and files this Motion to Challenge Insufficient Bond and For Issuance

of Writ. Fannie Mae would respectfully request that the court Issue a Writ for Possession in this

cause at this time due to Appellee's failure to file sufficient bond.


                                              I. FACTS

        1.      Defendant Appeals this matter to the 3rd Court of Appeals after Judgment was

                 awarded for possession of the property to Plaintiff on Apri12, 2015.

        2.       Defendant filed his Notice of Appeal on April 9th, 20] 5 and attached thereto a

                 proposed surety bond signed by himself, Suzanne Rady, and Guillermo Rangel.

                 The amount assured by all three parties was $500.00.


                                           II. ARGUMENT

        3.       A judgment debtor may suspend or supersede execution of a judgment while the

                 debtor pursues a review by filing with the trial   court clerk a good and sufficient



Motlon to Challenge InsuffiCient Bond
H609-1S Acevedo                                                                            PAGe 1


                                                                                                        APR 2'
                bond. TEX R. APP. P. 24.1(a)(2)-(3). When a judgment involves an interest in

                real property, the amount of the supersedeas bond or deposit must be "the value of

                the property interest's rent or revenue during the pendency of the appea1. TEX. R.

                APP. P. 24.2(a)(2)(A); Whitmire v. Greenridge Place Apartments, 333 S.W>3d

                255, 260 (Tex. App.e-Houstonl l" Dist.] 2010, pet. dism'd) Furthermore, the

                surety on a bond or the deposit made in lieu of a bond is subject to liability "for

                all damages and costs that may be awarded against the debtor----up to the amount

                of the bond, deposit, or security," if "the judgment is for the recovery of an

                interest in real or personal property, and the debtor does not pay the creditor the

                value of the property interest's rent or revenue during the pendency of the

                appea1." TEX R. APP. P. 24.1(d)(3). Because appeals can take longer than

                expected, the County court has autnority to mo(lizy tfie amount of the supersedeas

                 bond even after then expimtion of it's plenary power. (fEX R. APP. P. 24.3(a)

        4.       In this matter $500.00 is a wholly insufficient supersedeas bond amount for the

                 award of the possession of the property located at 1108 Fox Sparrow Cove,

                 Pflugerville.


                                        MOTION FOR ISSUANCE OF WRIT

        5.       Because Defendant has failed to post an apQ!:QPriateDonain accordance with

                   exas Rule of Civil Proceoure 24, laintiff asks that the court issue a writ for

                 possession at this time in accordance with the judgment signed on April 2, 2015.




Motion to Challenge Insufficient Bond
H609-1S Acevedo                                                                       PAGE   2
                                                                                                      APR 24
                                                Respectfully Submitted,



                                                By:
                                                       Mark D. Hopkin
                                                       State Bar No. 00 93915
                                                       Brantley Boyett
                                                       State Bar. No. 24051592
                                                       12111 Bee Caves Rd., Suite 260
                                                       Austin, Texas 78738
                                                       (512) 600-4320
                                                       (512) 600-4326 Fax
                                                        mark@hopkinswilliams.com
                                                       ATTORNEY FOR FEDERAL NATIONAL
                                                       MORTGAOE ASSOCIATION




                                       CERTIFICATE    OF SERVICE

        Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has
been sent on this the l1" ~y of April 2015 to all parties of record via the method indicated as
follows:

Via,egula, u.s. mail
and CMRRR# 70121640000171146319
Lenny Acevedo and All Other Occupants
1108 Fox Sparrow Cove
Pflugerville, Texas 78660

PRo SE DEFENDANT




MOl/on 10 Challenge IMl/Jlclent Bond
H609-15 Acevedo                                                                     PAGE   3

                                                                                               APR 24
