Reported / Citable
Background
Francine Lee Lankford owned property at 418 Taylor Road in Elgin, Texas. After an unrelated small-claims judgment was entered against her, the property was sold at a September 2018 execution sale to Tracy Ortiz for $20,000. The judgment debt was not for purchase money or taxes on the property.
Lankford sued Ortiz, Noe Reyes, and Reyes’s law firm, McCreary, Veselka, Bragg & Allen, P.C., seeking to recover possession and title. She argued that the sale was defective because Reyes, rather than the constable, called the auction bids and that the sale was void because the property was her homestead. The trial court granted summary judgment for all defendants.
The Court’s Holding
The Third Court of Appeals affirmed summary judgment for Reyes and the Firm. Neither Texas Rule of Civil Procedure 622 nor Rule 629 required the sheriff or constable personally to call the bids. Reyes’s uncontroverted affidavit established that his sole role was calling bids at the constable’s request and that the constable remained present and in control throughout the sale. Lankford therefore failed to raise a fact issue concerning a defect in the foreclosure proceedings.
The court reversed summary judgment for Ortiz and remanded that portion of the case. Lankford’s affidavit—stating that she continuously occupied and maintained the property as her principal residence and never abandoned it—raised a genuine fact issue about its homestead status. If the property was her homestead, its forced sale for the unrelated debt was void, leaving Ortiz unable to acquire title even as an asserted bona fide purchaser. Neither the sale’s completion nor Texas Civil Practice and Remedies Code Section 34.021 made a constitutionally prohibited sale effective.
Key Takeaways
- A constable may remain in control of an execution sale while another person performs the ministerial task of calling bids.
- An owner’s evidence of continued residence, use, and intent to claim property as a homestead can defeat summary judgment despite conflicting evidence of abandonment.
- A forced sale of a Texas homestead for a debt outside the constitutional exceptions is void, and a purchaser cannot obtain protection as a bona fide purchaser under that void sale.
Why It Matters
The decision distinguishes a permissible delegation of auction mechanics from a defect in the officer’s legal control of an execution sale. Merely having a third party call bids does not invalidate the sale when the authorized officer remains present and in charge.
More significantly, the opinion reinforces Texas’s strong constitutional protection of homesteads. Purchasers at execution sales bear the risk that the sale may be void, and disputed evidence about abandonment ordinarily must be resolved by a factfinder rather than on summary judgment.