COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOE ROWE,

 Appellant,

v.

KARA LANE WATKINS,

 Appellee. 

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No. 08-09-00001-CV

Appeal from

 County Court

of Jeff Davis County, Texas

(TC # 293)

MEMORANDUM OPINION ON MOTION

Joe Rowe has filed a motion in the above-styled and numbered appeal asking that we compel

the trial court to enter judgment and to rule on Appellant’s motion filed pursuant to Texas Rule of

Appellate Procedure 24 to determine the type and amount of security which Rowe must post to

suspend enforcement of the judgment. Appellee, Kara Lane Watkins, has filed a response to Rowe’s

motion. She has also requested that we dismiss the appeal for want of jurisdiction because the trial

court has not entered an appealable order or final judgment. We deny Watkins’ motion to dismiss

and grant Rowe’s motion for relief.

FACTUAL SUMMARY

The underlying dispute between Rowe and Watkins concerns ownership of a dog, Sara. The

justice court ruled in Rowe’s favor, awarding him possession of Sara, and Watkins appealed to the

county court. A jury then determined that Watkins had neither given Sara to Rowe nor abandoned

her. After the jury was dismissed, the county court immediately ordered Rowe to deliver the dog to

Watkins. Rowe’s attorney objected to immediate enforcement of the judgment, expressing an intent

to appeal and supersede the judgment with a proper bond. The trial court overruled these objections
and gave Rowe brief period of time to surrender Sara. When Rowe returned to the sheriff’s office

with the dog, he asked what would happen if he did not turn her over. A deputy sheriff responded

that he would be arrested pursuant to an order of the county judge. Rowe’s counsel was present

when this exchange occurred. Under threat of arrest, Rowe delivered Sara to Watkins.

The following day, Rowe filed an objection to enforcement of the judgment and requested

that the court determine the type of security required to suspend the judgment under Rule 24.2(2)

of the Texas Rules of Appellate Procedure. Rowe also filed a motion for judgment notwithstanding

the verdict and a motion for new trial. Those were overruled by operation of law on February 23,

2009. Rowe then filed a premature notice of appeal. See TEX.R.APP.P. 27.1(a). The trial court has

not entered a written judgment, nor has it ruled on Rowe’s request to determine the type and amount

of security required to permit suspension of the judgment. 

The clerk’s record and the reporter’s record have been received but have not yet been filed

by the Clerk of this Court because the appellate record does not include a written judgment or other

appealable order. Accordingly, on January 14, 2009, we notified Rowe that his appeal would be

dismissed for want of jurisdiction. Rowe responded by filing the motion which is the subject of this

opinion. Watkins filed a response faulting Rowe for the trial court’s failure to enter judgment and

asking us to dismiss the appeal.

WATKINS’ MOTION TO DISMISS

Watkins requests that we dismiss the appeal for want of jurisdiction because the trial court

has not entered a written judgment. Watkins is correct that our jurisdiction is contingent on the

existence of a final judgment or appealable order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001). But Rule 27.1 of the Rules of Appellate Procedure provides: “In a civil case, a

prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that
begins the period for perfecting the appeal.” TEX.R.APP.P. 27.1(a). The record before us establishes

that a jury verdict has been rendered and all post-trial motions have been overruled by operation of

law. Rowe has filed a premature notice of appeal and he has acted diligently to preserve his right

to an appeal in this case. When a premature notice of appeal is filed, it is the policy of the court to

permit the trial court a reasonable opportunity to enter a written judgment. Therefore, we decline

to dismiss the appeal at this juncture. We turn now to Rowe’s motion to compel the trial court to

enter judgment and to rule on Rowe’s motion to determine the type of security required. We have

construed Rowe’s motion as requesting mandamus relief.

FAILURE TO RENDER JUDGMENT AND

RULE ON PENDING MOTION

To be entitled to mandamus relief, a relator must meet two requirements. First, the relator

must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of

America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate he has no

adequate remedy by appeal. Id. at 135-36.

Mandamus may be appropriate to compel the consideration of a motion, the issuance of a

ruling, or entry of a judgment. White v. Reiter, 640 S.W.2d 586, 594 (Tex.Crim.App. 1982). The

Rules of Civil Procedure require a county court judge to render a judgment. See TEX.R.CIV.P. 300,

301. The trial court has a reasonable time in which to rule on a motion or enter judgment. See In

re Villarreal, 96 S.W.3d 708, 711 (Tex.App.--Amarillo 2003, orig. proceeding). What constitutes

a reasonable time depends on the facts and circumstances of the particular case. In re Salazar, 134

S.W.3d 357, 358 (Tex.App.--Waco 2003, orig. proceeding).

Under ordinary circumstances, we likely would not consider a delay of three months to be

unreasonable. But here, the delay must be considered in light of the trial court’s decision to
immediately enforce a “judgment” which has yet to be rendered and the court’s express refusal to

rule on Rowe’s motion to determine the type of security he must post. Because the trial court has

not entered a written judgment, Rowe is prevented from appealing the merits of the case or raising

on appeal the trial court’s noncompliance with Rule 24. It is under these circumstances that we find

the trial court has clearly abused its discretion by failing to enter a written judgment and by failing

to rule on Rowe’s motion to determine security. Moreover, Rowe does not have an adequate remedy

by appeal. Accordingly, we grant Rowe’s motion for an order directing the trial court to enter

judgment and to rule on Rowe’s Rule 24.4 motion. The Judge of the County Court of Jeff Davis

County is directed to enter a written judgment within thirty days from the date of this opinion.

Additionally, the County Court Judge is directed to rule on Rowe’s Rule 24.4 motion. We are

confident the County Court Judge will comply with these directives and the writ of mandamus will

only issue if he fails to do so.

August 26, 2009 

ANN CRAWFORD McCLURE, Justice

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