                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 ROBERTO MONCADA AND JUANITA                     §
 MONCADA,                                                         No. 08-09-00324-CV
                                                 §
                   Appellants,                                      Appeal from the
                                                 §
 v.                                                             County Court at Law No. 6
                                                 §
                                                                of El Paso County, Texas
 BERT NAVAR,                                     §
                                                                   (TC# 2009-J00063)
                   Appellee.                     §


                                           OPINION

       In this forcible detainer suit, the county court concluded that the defendants failed to

perfect their appeal from the justice of peace court because they did not pay rent into the court

registry. In their sole issue, the Moncadas contend that the county court erred in concluding that

they could not perfect their appeal without paying rent into the court registry.

       In June 2009, Bert Navar purchased the home of Roberto and Juana Moncada at a

foreclosure sale.1 The Moncadas refused to vacate the premises, so Navar sued them for forcible

detainer in justice of the peace court. On July 21, 2009, the justice of the peace ruled in Navar’s

favor. On July 24, 2009, the Moncadas filed a notice of appeal and pauper’s affidavit. The

record reflects that no one contested the pauper’s affidavit.

       At the trial de novo in county court, Navar testified that he did not want the Moncadas as

tenants and that there had never been a rental contract between him and the Moncadas. Juana


       1
       Although some of the pleadings and the judgment refer to her as “Juanita,” Mrs.
Moncada testified that her name is “Juana.”
Moncada testified the same; that she and her husband had never entered into any kind of

agreement to rent the property from Navar. At the conclusion of the trial, the judge announced

that the Moncadas had not properly perfected their appeal because they failed to pay rent into the

court’s registry. She signed an order of dismissal, which states that the Moncadas “failed to

perfect the appeal as required by TRCP 749(b).” The Moncadas have appealed the dismissal to

this Court.

       Within five days after a justice of the peace signs a judgment in a forcible entry and

detainer case, a party may appeal to a county court by filing either a bond or a pauper’s affidavit.

TEX .R.CIV .P. 749, 749a. If the appellant files a pauper’s affidavit, the appellee has five days to

contest the affidavit. TEX .R.CIV .P. 749a. If the appellee does not contest the affidavit, it “will

be considered approved.” Id. “When an appeal bond has been timely filed in conformity with

Rule 749 or a pauper’s affidavit approved in conformity with Rule 749a, the appeal shall be

perfected.” TEX .R.CIV .P. 749c.

       In ruling that the Moncadas had not perfected their appeal, the county court mistakenly

relied on Rule 749b. That rule states in pertinent part:

               In a nonpayment of rent forcible detainer case a tenant/appellant who has
       appealed by filing a pauper’s affidavit . . . shall be entitled to stay in possession of
       the premises during the pendency of the appeal, by complying with the following
       procedure:
               (1) Within five days of the date that the tenant/appellant files his pauper’s
       affidavit, he must pay into the justice court registry one rental period’s rent under
       the terms of the rental agreement.
               (2) During the appeal process as rent becomes due under the rental
       agreement, the tenant/appellant shall pay the rent into the county court registry
       within five days of the due date under the terms of the rental agreement.

TEX .R.CIV .P. 749b.



                                                  -2-
       Rule 749b does not apply to every forcible detainer case. Generally, “the only issue” in

such a case is “the right to actual possession.” TEX .R.CIV .P. 746. However, “[a] suit for rent

may be joined with an action of forcible entry and detainer” if the suit for rent is within the

justice court’s jurisdiction. TEX .R.CIV .P. 738. By its express terms, Rule 749b only applies if a

suit for rent has been joined with the suit for forcible detainer. See TEX .R.CIV .P. 749b (“In a

nonpayment of rent forcible detainer case . . . .”); see also TEX .PROP .CODE ANN . §§ 24.0053,

24.0054 (Vernon Supp. 2010)(setting out procedures for payment of rent pending appeal in

“nonpayment of rent” cases).

       In this case, the complaint did not allege that the Moncadas failed to pay rent. Juana

Moncada and Bert Navar both testified that they had no rental agreement. Accordingly, this is

not a nonpayment of rent forcible detainer case, and Rule 749b does not apply. See Morgan v.

Pierce, 864 S.W.2d 643, 644 (Tex.App.--Tyler 1993, no writ)(holding that a case was not a

nonpayment of rent case because the landlord’s pleadings did not allege a failure to pay rent and

there was no evidence of nonpayment).

       Navar attempts to bring this case within the ambit of Rule 749b by relying on a letter

dated August 20, 2009, which is attached as an appendix to his appellate brief. In the letter,

Navar requested that the Moncadas pay $1,000 into the court registry every month until

resolution of the appeal. This letter is not, however, properly before us because it is not part of

the trial court record. See Martinez v. Valencia, 824 S.W.2d 719, 722 (Tex.App.--El Paso 1992,

no writ). Even if we could consider the letter, it does not establish that the parties had a rental

agreement as contemplated by the rule. See TEX .R.CIV .P. 749b(1)(requiring the appellant to pay

one month’s rent into the justice court registry “under the terms of the rental agreement”); id.


                                                 -3-
749b(2)(requiring the appellant to continue paying rent into the county court registry “as rent

becomes due under the rental agreement”). At most, the letter would constitute an offer to enter

into a rental agreement.

       Furthermore, even if Rule 749b applied to this case, it would have no effect on the

Moncadas’ perfection of their appeal to the county court. In focusing on Rule 749b, Navar, like

the county court, ignores Rule 749c, which expressly defines when an appeal is perfected. In the

case of an indigent appellant, all that Rule 749c requires is the approval of a pauper’s affidavit.

See TEX .R.CIV .P. 749c.

       Rule 749b simply provides a procedure by which an indigent appellant may remain on the

premises during the appeal: an appellant who appeals by filing a pauper’s affidavit “shall be

entitled to stay in possession of the premises during the pendency of the appeal” by complying

with the procedures set forth in the rule. TEX .R.CIV .P. 749b. One of the rule’s procedures is that

the appellant “must pay into the justice court registry one rental period’s rent.” TEX .R.CIV .P.

749b(1). Isolating the word “must,” Navar argues that paying rent is mandatory whenever an

appellant appeals with a pauper’s affidavit. Read in context, however, it is clear that paying rent

is mandatory only if the appellant wishes to stay on the premises during the appeal.

       Thus, we find that the county court erred in concluding that the Moncadas’ failure to pay

rent into the court registry precluded them from perfecting an appeal. Accordingly, the order of

dismissal is reversed, and this cause is remanded to the county court for further proceedings.


January 5, 2011
                                               DAVID WELLINGTON CHEW, Chief Justice

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


                                                 -4-
