                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-357-CV


JESSE F. REECE, SR.                                                   APPELLANT

                                              V.

FOUNTAINGATE APARTMENTS                                                 APPELLEE

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            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                           MEMORANDUM OPINION 1

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      In this forcible entry and detainer proceeding, Appellant Jesse F. Reece,

Sr., pro se, appeals the district court’s order dismissing for want of jurisdiction

his appeal from the justice court. We likewise dismiss for want of jurisdiction.




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          … See T EX. R. A PP. P. 47.4.
                                  Background

      On May 15, 2007, Appellee Fountaingate Apartments instituted eviction

proceedings against Reece, its tenant, in a justice court in Wichita County. On

May 29, 2007, after a hearing on the merits, the justice court rendered

judgment granting Fountaingate possession of the premises in question and

unpaid rent of $151.57.

      On June 4, Reece filed a declaration of inability to pay costs under rule

of civil procedure 749(a). See T EX. R. C IV. P. 749(a). Fountaingate filed an

objection to Reece’s declaration. On June 11, after a hearing on the merits, the

justice court disapproved Reece’s declaration of inability to pay costs and

ordered him to deposit with the court a cash bond or surety bond payable to

Fountaingate in the amount of $948 and to pay a transcript fee of $10. Reece

appealed the justice court’s order to the county court, and after another hearing

on the merits, the county court also disapproved his affidavit of inability to pay

costs on July 2.

      Reece filed an appeal bond on July 6, but the purported bond was not

approved by the justice court as required by rule 749 and was signed only by

Reece, not any surety. See T EX. R. C IV. P. 749. His appeal was filed in the

89th District Court of Wichita County. Reece filed a purported oath of surety

on July 13, in which he listed himself as his own surety.

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      Fountaingate filed a motion to dismiss the appeal because Reece’s

defective appeal bond failed to confer jurisdiction on the district court. The

district court dismissed the appeal on September 7. Reece perfected an appeal

to this court on October 4.

                                  Discussion

      In his first issue, Reece argues that “[t]he circumstantial evidence is

factually insufficient” to support the district court’s dismissal of his appeal.

Rule 749 provides that a party may appeal a justice court judgment in a forcible

entry and detainer case by filing with the justice, within five days after the

judgment is signed, a bond to be approved by said justice and payable to the

adverse party. T EX. R. C IV. P. 749. Rule 750 sets out the form for the appeal

bond authorized by rule 749, and the form calls for execution of the bond by

the principal and a surety. T EX. R. C IV. P. 750. A bond filed under rule 749

must substantially comply with the form set out in rule 750. Pharis v. Culver,

677 S.W.2d 168, 170 (Tex. App.—Houston [1st Dist.] 1984, no writ). The

failure to timely file a bond in accordance with rule 749 deprives the reviewing

court of jurisdiction. Wetsel v. Fort Worth Brake, Clutch & Equip. Inc., 780

S.W.2d 952, 953–54 (Tex. App.—Fort Worth 1989, no writ).

      Reeces’s purported appeal bond did not list any surety and was not

executed by a surety as required by rule 750. In his “oath of surety,” he listed

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himself as the purported surety. To allow a judgment debtor to serve as his

own surety would defeat the purpose of an appeal bond, which is to guarantee

the payment of judgment damages, costs, and attorney’s fees in the event of

an unsuccessful appeal by the judgment debtor. See T EX. R. C IV. P. 752. The

undisputed record shows that Reece failed to file a bond that substantially met

the requirements of rule 750; therefore, the evidence was factually sufficient

to support the district court’s dismissal of his appeal.

         In the latter part of his first issue and in his second issue, Reece argues

that when an appeal bond is defective, the court should allow the bond to be

amended rather than dismiss the appeal. In Pharis, the first court of appeals,

citing former rules of procedure 430 and 363a,2 held that a county court may

permit a party to amend a defective bond upon a timely request. 677 S.W.2d

at 170 (quoting Woods Exploration & Producing Co. v. Arkla Equip. Co., 528

S.W.2d 568, 570 (Tex. 1975)). Reece made no such request in the district

court.

         Moreover, to preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context


         2
       … Former rules 430 and 363a concerned appeal bonds in civil appeals,
a subject now covered by rule of appellate procedure 24. T EX. R. A PP. P. 24.

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of the request, objection, or motion. T EX. R. A PP. P. 33.1(a); see also T EX. R.

E VID. 103(a)(1).   If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op.

on reh’g). Again, Reece did not request an opportunity to amend the defective

bond in the trial court; thus, he waived his complaint concerning the trial

court’s refusal to allow him to do so. See T EX. R. A PP. P. 33.1(a). We overrule

his first and second issues.

      The gravamen of Reece’s third issue is unclear, but he appears to argue

that he should be allowed to serve as his own surety. For the reasons stated

above, we overrule his third issue.

      In his fourth issue, Reece apparently argues that the justice court erred

by issuing a writ of possession after the district court dismissed his appeal.

Part of this argument relates back to his first through third issues; essentially,

Reece argues that the justice court erred by issuing a writ of possession

because his bond was sufficient to perfect an appeal to the district court and

supercede the justice court’s judgment. Having overruled his first through third

issues, we likewise overrule this part of his fourth issue for the same reasons.

      In the remainder of his fourth issue, he apparently argues that the writ of

possession violated rule 755 because the subject premises were his principal

residence. Rule 755 provides that a writ of possession shall not be suspended

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or superceded by an appeal from the justice court’s judgment unless the

premises in question are being used as the principal residence of a party. T EX.

R. C IV. P. 755. Because Reece’s defective bond did not perfect his appeal

under rule 749, he was not entitled to suspension of the justice court’s

judgment under rule 755. See id. Therefore, we overrule the remainder of his

fourth issue.

                                  Conclusion

      Having overruled all of Reece’s issues, we dismiss his appeal for want of

jurisdiction. See T EX. R. A PP. P. 43.2(f). We deny Fountaingate’s “Motion to

Dismiss for Failure to Prosecute” and its “Objection to Inclusion of Matters

Outside the Record in Appeal.”




                                           ANNE GARDNER
                                           JUSTICE

PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: August 26, 2008




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