Unreported / Non-Citable
Background
Brenda Adams filed an eviction action against Cody Adams in a Wise County justice court, seeking possession of a property. The justice court ruled in Brenda’s favor, and Cody appealed to Wise County Court at Law No. 2. That court entered judgment evicting Cody and awarding possession to Brenda. The trial court awarded no damages, unpaid rent, or attorney’s fees — possession was the sole issue before it.
Cody then appealed to the Second Court of Appeals. Before the appeal could be resolved, however, the sheriff executed a writ of possession evicting Cody from the property pursuant to Texas Rule of Civil Procedure 510.23. The court of appeals subsequently notified Cody that the case appeared moot and gave him ten days to file a response showing grounds for continuing the appeal. He did not respond within that period or at any point in the following month.
The Court’s Holding
Chief Justice Sudderth, writing for the court, held that the appeal was moot under the three-part test drawn from Marshall v. Housing Authority of the City of San Antonio, 198 S.W.3d 782 (Tex. 2006). An eviction appeal is moot when: (1) the appellant has vacated the property; (2) no damages or attorney’s fees remain at issue; and (3) the appellant has no meritorious claim of right to current, actual possession. All three conditions were satisfied here — Cody had been physically evicted, no monetary relief was at stake, and nothing in the record supported a meritorious claim to current possession.
Applying Texas Rule of Appellate Procedure 43.2(e) and the Marshall framework, the court vacated the trial court’s judgment and dismissed the case as moot rather than simply dismissing the appeal. This disposition — vacatur of the judgment below — is the standard remedy in Texas when an eviction appeal becomes moot after judgment.
Key Takeaways
- A Texas eviction appeal becomes moot once the appellant is physically removed from the property, no monetary claims remain, and the appellant cannot show a meritorious claim to current possession.
- When all three mootness conditions are met, the proper appellate remedy is to vacate the trial court’s judgment and dismiss the case — not merely to dismiss the appeal.
- Appellants who receive a mootness warning from the court of appeals must file a timely response demonstrating a basis to continue the appeal or face dismissal; silence is treated as concession that no such basis exists.
Why It Matters
This memorandum opinion reinforces a well-established but practically important rule in Texas eviction litigation: executing on a writ of possession before an appeal is resolved can eliminate the appellate controversy entirely. Landlords and their counsel should be aware that swift execution of a writ — combined with the absence of any monetary award — effectively ends the case, even if the tenant has filed a notice of appeal.
For tenants and their counsel, the decision underscores the importance of responding promptly to mootness notices and, where possible, asserting a meritorious claim to current possession — for example, by challenging the validity of the underlying eviction order or demonstrating a continued legal right to occupy the premises. Failure to respond, as occurred here, leaves no avenue for relief.